Lock them up!

One of the greatest frustrations experienced by those who care about the environment is the seeming inability to impose any consequences upon those chiefly responsible for the environmental crisis: namely, Big Business and their enablers in government. International fora such as the United Nations Climate Change Conferences set goals in an attempt to mitigate the environmental crisis and celebrate their successes only to find that nothing happens while the clock ticks down to catastrophe.

Clearly, there needs to be some way of enforcing the goals agreed upon by nations and businesses. The first step that needs to be taken is to make goals legally binding. There is a lot of slippery talk about the legally binding nature of these goals. For example, a straight-forward question in the UN FAQs asks of the Paris Agreement: “Is this agreement legally binding?” to which the answer is given:

The Paris Agreement is a legal instrument that will guide the process for universally acting on climate change. It is a hybrid of legally binding and nonbinding provisions. The Agreement consists of a core agreement that governs the international process will be binding on parties, while there are elements that are not part of the legally binding agreement. These parts, such as the intended nationally determined contributions, may be binding at the national level.

So, the answer appears to be: “Yes, no, kind of.” Given the fact that nothing of consequence has happened as a result of the Paris Agreement, the most honest answer is “Not at all.” So, we need unambiguously legally-binding goals.

Some groups have had local successes taking governments to court in the context of environmental issues. Perhaps most famously, the non-profit Urgenda Foundation took the Dutch government to court in 2015 claiming that it was failing to protect citizens’ rights in the face of climate change. The group won, but faced years of pushback from the government until the Netherlands’ Supreme Court upheld the ruling in late 2019.

Even though this ruling was upheld, it is not obvious who is ultimately responsible for the government’s failure. Is any individual really held responsible, or is it the collective failure of the government? If the buck does not stop with any one individual, how can there be any deterrence in the law if all that happens if found guilty is that the government is urged to do what it was supposed to have done in the first place? On those rare occasions when an individual is actually held accountable for their part in governmental wrong-doing, there still appears to be no consequences. For example, when Christine Lagarde was found guilty in 2016 for negligence during her time as a finance minister in the French government, she was let off without punishment, continued in her role as head of the International Monetary Fund, and then rewarded with the job of leading the European Central Bank.

There is only one context where politicians and public servants of the highest ranks ever appear to be held truly accountable, and that is at the International Criminal Court in The Hague. The ICC considers crimes of the gravest nature such as genocide, crimes against humanity, and war crimes. Is this a reasonable context in which to consider the kinds of mismanagement that have resulted in the environmental crisis?

Recently, a new study showed that air pollution cuts three years on average from the human lifespan, ranging from 1.5 years in Europe and North America to 7.3 years in Chad. That’s just one element of the environmental crisis. Then there’s climate change, water pollution, plastic and chemical pollution, and a long list of other problems that are bringing the lives of many people to a brutal and premature end. In light of this, it is quite plausible to consider environmental mismanagement as an act of genocide.

So now we can start to imagine how legally-binding environmental goals could have some real teeth. Let’s use fora such as the United Nations Climate Change Conferences to set goals and make it clear that failure to meet those goals will result in heads of state, senior ministers, and CEOs of corporations being tried for acts of genocide, and that if found guilty they will be sentenced to long prison sentences. Of course, it would be unfair to apply such rules retrospectively, but it certainly would focus the attention of those making decisions if that was the ongoing consequence for destroying the environment.