Climate change is recognized as “the common concern of humanity.” On June 28, 2021, the European Council enacted a climate change law to reduce greenhouse gases emissions by 55% by 2030 – from 1990 levels – and to accomplish a net zero-emissions economy by 2050. Despite the legal enshrinement of net-zero and emission targets, the European Union only accounts for a limited share in global greenhouse gases emissions. Yet, at the annual summit of the Group Seven nations in earlier June, leaders from the wealthy democracies failed to agree on a coal phaseout timeline, leaving a key commitment to addressing the climate into uncertainty. While negotiations on multinational climate agreements are proceeding in various international fora, a human rights approach is arguably an alternative way to cope with imminent climate threats. This is because the adverse effects of climate change have implications for the enjoyment of a series of human rights such as the right to life, the right to food and the right to property. Climate change, a traditionally transboundary environmental problem, thus becomes a human rights issue as well. In this sense, the development of human rights related to the environment provides a possibility for citizens to deal with climate change apart from the usually uncertain political negotiations among sovereign states. This article focuses on the application of procedural environmental rights into climate change. In particular, against the background of the information age, it discusses the advantages and challenges of exercising procedural environmental rights via online platforms to cope with climate emergence.
Procedural environmental rights include access to environmental information, participation in environmental decision-making and access to judicial redress for environmental wrongs. The 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is a breakthrough treaty in advocating procedural environmental rights. It marks “the most ambitious venture in environmental democracy” and promotes “the transparency, participation, and accountability that form the cornerstones of environmental governance.” Indeed, through a democratic participatory process on the basis of information disclosure, environmental democracy can be enhanced since the public are given the opportunity to express their concerns and relevant authorities are obliged to take such concerns into consideration. This is the same in the case of climate change: if more climate information is disclosed, more climate participation is involved and more climate litigation is encouraged. Thus, a bottom-up approach from civil societies to democratically address climate change can be established in addition to the traditional top-down focus on states climate actions.
In the information era, digital technology has significantly contributed to the establishment of democratic climate governance through its abilities in collecting and disseminating information, accelerating participation in decision-making and facilitating administrative and judicial remedies regarding climate change. In this sense, a transparent, participatory and accountable climate governance can be expected with the exercise of procedural environmental rights in the age of information.
Specifically, with the aid of the internet, climate information disclosures are made available to the public directly which reduce the information asymmetry between the state and the public. It has become easy for citizens to search for up-to-date information on climate science, policies and reports. This is particularly significant because climate change is often critiqued by sceptics such as Jair Bolsonaro, the current president of Brazil, which is an important country in absorbing global carbon emissions thanks to the Amazon rainforests. Information technology thus serves a key role in presenting and publicising climate science directly to the population. Public awareness on climate change can be enhanced through the fast transmission of climate information. In addition, with easier and simplified access to information facilitated by digital technology, the general public and all stakeholders can find, understand, use, comment on and supervise publicised climate data and information. Therefore, greater disclosure of climate information coupled with media reporting increases transparency in the process of climate governance and helps hold rule-breakers accountable for their climate-orientated misdeeds. This minimises the implementation deficit related to climate policies.
Furthermore, efficient information disclosure in the age of information can facilitate public participation. If the public has any concerns regarding the disclosed information, they have the right to comment on relevant online platforms and participate in climate decision-making discourse through those media. With extensive use of the internet, this sort of “e-participation” has greatly reduced the cost of information disclosure and public participation in climate issues. E-participation through web-based comments or social media interactions, when influential enough, can apply pressure on decision-makers and facilitate official responses to climate concerns in terms of contributing to sustainability. For example, with the influence of online media, Greta Thunberg, the climate activist who initiated the “School Strike for Climate,” has inspired millions of young people worldwide to demand that their governments meet climate targets. In this way, by acting as climate stewards, citizens are able to exert “bottom-up” pressure on relevant authorities to take further positive climate measures.
Access to justice before an independent and impartial body provides remedies for those who suffer from inadequate information access or insufficient public participation regarding climate matters. To safeguard these access rights to information and participation, appropriate administrative and judicial review procedures are indispensable. Notably, these procedures are required to be “fair, equitable, timely, not prohibitively expensive” and “be disseminated to the public.” Thanks to the development of information technology that removes the communication barriers, climate litigation becomes less time-consuming and less costly, and climate adjudication more transparent and more accessible. For example, with the establishment of the Sabin Centre’s Climate Change Litigation Databases, it is much easier for relevant parties to access the updated information on climate adjudication across the globe. Hence digital technology has facilitated the flourishment of climate litigation raised by marginalised climate groups, representing another level of civil engagement in protecting their procedural right to access to climate justice.
Of course, there are challenges in the application of digital procedural rights to the climate crisis. First, while credible climate information is the cornerstone of climate governance, the quality of collected information is by no means infallible. The rapid spread of unchecked news through various digital tools exacerbates the issue, resulting in confusion. Meanwhile, even when information regarding climate change is accurate, more public engagement does not necessarily lead to better climate decisions. The extent to which civil engagement in climate decision-making should be allowed remains questionable because there may be too much information for climate decision-makers to choose from. Opinions from climate denialists may distract relevant authorities from taking timely measures to mitigate climate change. For example, under the Trump administration, funding for climate scientists and regulatory agencies were cut. Digital technology, while facilitating access to information and participation in decision-making, inevitably encourages a populist climate solution, rather than a professional one. The efforts of experts may be hampered. Therefore, even with the use of communication technology, procedural access rights do not necessarily promise desirable substantive outcomes relating to the climate. They can be counterproductive.
Besides, there are implications for speech freedom when citizens participate in decision-making via online platforms. Some states may have strict censorship on the public’s online opinions. Where this is the case, a safe online environment is not guaranteed and the public may fail to truly express themselves and fully participate in the process. After all, communication technology is only an instrument and the authorities with control over the technology are a key element in determining whether the exercise of digital procedural rights is successful or not. The digital divide between developed countries and developing countries is also relevant here. Compared to developed countries, poor developing countries and the least developed countries may have limited access to online technology to acquire climate information or participate in climate decision-making, yet communities and peoples from these countries generally are most vulnerable to adverse climate impacts. As a result, efforts need to be exerted to bridge this digital divide.
While climate change is recognized as “one of the greatest challenges of our time,” the exercise of procedural environmental rights, including the rights to access to information, participation in decision-making and access to justice in the field of climate change, has been greatly improved by digital technology. With the interaction of law and technology, the climate crisis can be better addressed through a bottom-up participatory approach. Yet, the application of procedural environmental rights to addressing climate change in such an information era is far from being a panacea. Limitations including the spread of untrustworthy information, the distortion caused by populists in decision-making, state censorship of online speech freedom and the digital divide between developed countries and developing ones still pose challenges to more effective solutions to the climate threat. Nevertheless, with empowerment from procedural environmental rights and the magnification of communication technology, the construction of a more democratic climate regime characterised by transparency, participation and accountability is well underway.
Evelyn Li Wang is a Ph.D Candidate at the Newcastle University Law School.
Suggested citation: Evelyn Li Wang, Addressing the Climate Crisis Through Procedural Environmental Rights in the Age of Information, JURIST – Academic Commentary, July 17, 2021, https://www.jurist.org/commentary/2021/07/li-wang-climate-crisis/.
This article was prepared for publication by Giri Aravind, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org