The secret war on natural rights—and children | opinion

This opinion piece by legal and ethics scholar Carter Dillard was published in Newsweek on 6 January, 2023 at https://www.newsweek.com/secret-war-natural-rights-children-opinion-1771365.

Climate activists around the world have spent years urging the courts to force governments and companies to do more to mitigate the climate crisis, often invoking fundamental human rights as a way to override the political processes that are failing to act. Many of those cases center on the idea that there is a constitutional right to a healthy environment, which courts should be protecting. Often the heart of this approach – embodied in litigation brought by groups like Our Children's Trust (OCT) - is defined by what would be good for humans, an anthropocentric approach, rather than what would be good for the vast and disparate number of more fragile nonhuman species with whom we share the world.

The former approach is generally understood to center around the acceptable emissions standards more or less outlined by the Paris Agreement, which allowed a significant temperature rise worldwide. The anthropocentric approach and its rejection of the need to preserve a contiguous nonhuman world has proven disastrous, as scientists confirm we will be unable to limit temperature rises to what we had hoped, we begin to see feedback loops that could create unstoppable levels of new emissions. Even the temperature rises permitted by the Paris Agreement cause horrific impacts on children, and disproportionately so based on their level of income. The recent failure of the global climate conference, COP27, highlights just how little our political systems are doing.

One recent court case in which I was lead counsel went further and non-anthropocentric approach. Animal Legal Defense Fund (ALDF) v. United States, argued that the United States Constitution ensured an eco-centric, rather than an anthropocentric, right. And that such a right required climate restoration, not just mitigation. The case - based on research originally published by Yale Law School in 2008 - went even further, arguing that such a right was part of the concept of relative self-determination itself that preceded and justified systems of governance, and thus a right that could override competing interests, like the property rights of fossil fuel conglomerates. It sought to make the legitimacy of systems of governance contingent on substantive outcomes, not mere process.