Tragedy of the Climate Crisis by Lisa Picotte-Li

LISA PICOTTE-LI

Remember first year property law and the tragedy of the commons? There may have even been images of cows, with one field showing the lush green sustainability of shared resources and others showing individual cows grazing according to their own self-interests and, collectively, turning the field into a depleted resource. The lesson then centered around conflicts between private and public interests, impacts of regulation, and, when there was more progressive discussion, the responsibilities of the global commons and the rights of Indigenous peoples.

The tragedy of the commons usually goes something like this. In a situation where there is a common pasture, unowned and available to all, it is in the self-interest of each animal herder to maximize the use of the commons, even to the detriment of the community. Animal herders will add animals to the pasture to maximize their own profits, even when the commons can no longer sustain them. Because the tragedy of the commons is seen to be inevitable, it is recognized that one of the roles of government is to manage shared resources.

Regulators exist because private and public interests do not always align. But regulators are bound by authority and jurisdiction, so that actions are accountable to a defined mandate. These boundaries promote balance, so government interference does not overreach into private markets, but they also impose limitations. These limits become apparent when the tragedy of the commons is the planet and the solutions for climate change require inter-jurisdictional collaboration. The consequences of the climate crisis range from devastating to existential risk. We have experienced more frequent and intense fires, floods, heatwaves, and storms. The current trajectory will continue to create an environment of costly emergencies. At worst, the environment will become uninhabitable for human beings. Despite priorities focused on the well-being of the planet, the reality is that the Earth will survive this — but we may not.

So here is the call to action. Changing the course of the current climate trajectory will not be shifted by the interests of a few, the interventions of the powerful, or even altruism for the community. All of these must work together and optimize self-interest to serve a larger purpose. Below are three alternative areas for driving change toward better climate outcomes.

Extreme weather events affect marginalized groups more severely, particularly where there are wealth disparities, socioeconomic differences, and the racialization and genderization of inequalities. Vulnerable populations are disproportionately impacted by climate changes as they are, for example, more likely to be situated in areas of toxic air, are less able to protect themselves from extreme weather events, and experience more risks related to basic rights like sanitation and housing. Positive climate action can be undertaken through a lens focused on human rights.

Workers are the first to experience the effects of climate impacts, including disease and injury.

Construction and transportation workers, emergency responders, commercial fisheries, and agricultural workers, among others, are exposed to more severe conditions than the general public. These hazards can be characterized as occupational risks to influence health and safety preparation and amplify the delivery of healthier work environments, reduce energy consumption, and drive toward better climate outcomes.

The scale of climate change threatens processes, systems, and equipment that were not designed for extreme heat, disruptive weather patterns, or rising sea levels. There is health and food security; security of the environment; access to land, water, and resources; and security of economic, social, and political systems. These

“commons” require cross-functional solutions that involve all segments of society.

The way that the climate crisis is framed dictates strategies for creating solutions. The tragedy of the commons can still be averted, but it requires considerations beyond selfinterest and communal property, and a shift toward fundamental changes in governance, ethics, and creative approaches for greater responsibility.

Lisa Picotte-Li is the director of operations at a provincial safety regulator and adjudicates correction and discipline of federal inmates. The views are those of the author.

BC WLF UPDATE — by Kyla Lee

Jessica Clogg is the Executive Director and Senior Counsel at West Coast Environmental Law. She has had a passion for environmental law after being inspired from an incident in her childhood. While growing up in a town dependent on logging, the clearcutting in her area of town caused flooding that washed houses away. Clogg then sought to understand why and how that happens.

When Clogg started out in environmental law, she was one of only a few women lawyers in the field. She has a vivid memory of showing up to a lengthy negotiation regarding forest certification standards, and being the only woman present. When she joined West Coast Environmental Law in 2012, she was the only woman in an Executive Director position among the national environmental agencies. Since then, Clogg has noticed a shift, with many more women lawyers currently practising environmental law.

Right now, Clogg is leading a program called “Climate Law in Our Hands.” The program is about demanding accountability from polluters for climate harm, which may eventually lead to a class action lawsuit brought by local communities affected by pollution. She is currently engaging at the community level to be in dialogue with citizens about the harm they experience from pollution and the impact of climate change. Her aim is to build dialogue from the ground up to support and sustain the interest of others to hold fossil fuel polluters accountable.

CBA NATIONAL MAGAZINE

Back in 2013, a group of electricity producers in the Netherlands proposed the closure of five old coal-fired power plants as part of the transition to a more environmentally sustainable energy industry. The producers applied to the Dutch Authority for Consumers and Markets (“ACM”) for permission to go ahead.

The agency, which acts as the Netherlands competition authority, studied the proposal, which would have shut down 10% of generation capacity in the country, and turned it down. The ACM determined that the closures would indeed reduce environmental damage. But because the associated carbon-dioxide emission rights weren’t going to be cancelled, the benefits weren’t sufficient to offset the expected jump in consumer utility rates.

CLEBC is delighted to welcome three new CLEBC Board Directors this year, Laurel M. Courtenay, Melanie J. Mortensen, and Brent Olthuis.

Laurel has practised as a barrister and solicitor in the field of administrative law for 25 years. She is currently legal counsel in the Legal Services Branch (“LSB”) of the Ministry of Attorney General where she practises employment law and teaches administrative law fundamentals to statutory decision-makers.

Melanie is the Law Society of BC (“LSBC”)/CBA appointee representing Victoria County. She is the Legislative Counsel & Designated Deputy Chief Legislative Counsel for Members’ Drafting in the Office of Legislative Counsel with the Ministry of Attorney General.

Brent is the LSBC/CBA appointee representing Vancouver County. Brent has a broad practice in the areas of civil, commercial, administrative, and constitutional law with the firm Hunter Litigation Chambers in Vancouver.

CLEBC thank Laurel, Melanie, and Brent for their interest in supporting CLEBC and look forward to benefiting from their experience and new perspectives. You can read more about CLEBC’s Board of Directors here.