Law 

The Legal Battle for the Future Is Underway, and We Must Brace for Its Impacts

Matters related to inheritance have always featured prominently in any society’s legal code. Even today, when our laws allow the state’s best guess to dictate how assets are distributed, you’d doubtless prefer to have your personal estate attorney sort things out.

It’s natural for humans to make efforts to ensure that our families are provided for, improving their chances of survival. Evolutionary biologists call this the theory of kin selection. They argue that it motivates individuals to display altruistic behaviors and even sacrifice themselves for the greater good.

Yet in today’s world, we’re witnessing evidence of our society’s collective failure to look after the best interests of generations to come: our own unborn descendants. And a battle is being waged in our courts to decide how the present course can be corrected.

Ethics and laws of harm

To some, it might seem bizarre even to question the idea that future generations have rights or that we have an obligation to safeguard them in the present. But the matter isn’t so clear-cut for everyone.

Some philosophers, for instance, contend the non-identity argument: that present action or inaction will invalidate the entire concept of future rights. Taking steps to ensure that a future person isn’t harmed by what we do now, we alter the future sufficiently to the extent that they don’t even exist.

This argument diminishes the support for future rights in the eyes of the law. In most states and countries, the law requires a plaintiff to have standing: they must have suffered direct harm or be facing imminent harm, and it must be redressable.

How do you argue that future human beings have standing if altering our present actions causes those specific persons to never exist?

The emerging rebuttal is based on a threshold notion of harm. It’s what the layperson might call a common-sense definition of harm and one that acknowledges our obvious capability to impact the quality of life of future people.

Fighting climate change in court

The biggest concern by far, and one that’s practically inseparable from the rights of future persons, is our degradation of the environment, particularly through activities related to climate change.

International law frequently references the concept of equity across generations, even into the future. But can you actually file a suit on behalf of future persons whose lives will be harmed by losing access to natural resources or facing worse environmental conditions than ours?

In a few landmark cases, plaintiffs have done so and won.

In 1993, in the case of Minors Oposa v. Department of Environment and Natural Resources, the Philippines’ Supreme Court found in favor of the plaintiff. In doing so, it recognized future generations as a class with standing and our own obligation to protect the environment.

In 2018, the Supreme Court of Colombia recognized the Amazon river as a subject of rights in response to a claim filed against the government to degrade this ecosystem. Accordingly, it ordered the adoption of measures to reduce deforestation to zero.

And in perhaps the most recent high-profile case of Urgenda Foundation v. State of the Netherlands, the Dutch Supreme Court ruled against the government. The state was ordered to reduce its emissions by at least 20% by the end of 2020.

Accelerating trends in climate litigation

Climate litigation has been less successful when leveled against private emitters. In particular, the “Carbon Majors,” a group of less than a hundred companies that accounts for two-thirds of global emissions, has yet to be held accountable.

However, recent trends indicate that will change. Around the world, the majority of cases in this category were filed within the past decade. Outside the US, 58% of cases resulted in outcomes favorable to climate change action.

Within the US, the success rate was 42%, but that is expected to change as courts rein in extralegal measures to undermine climate protections. And the Carbon Majors are expected to come under increasing attack as the science of climate attribution improves our ability to make causal links to their activities.

The correlation between climate litigation and environmental legislation has also been noted. As constituents become more vocal about this issue, the law appears to evolve in a broadly complementary manner.

Most of all, courts often rule in favor of the plaintiff based on harm done to them. As climate change has begun to undeniably affect the present, it adds strength to the common cause between those suffering now and those who will suffer in the future.

The battle for the rights of future persons to a habitable world is already being fought in our courts. Voicing our support, whether through the ballot box or our consumption choices, is one way we can start fulfilling our moral obligation to prevent future harm.

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