Climate Change and the Voiceless

Randall Abate’s Climate Change and the Voiceless advocates expanding the justiciability of environmental rights to ‘voiceless’ groups; namely future generations, natural resources, and wildlife. In the context of the climate crisis, the 1970s command-and-control approach towards environmental problems is deemed inappropriate by Abate. Instead he proposes an ecocentric stewardship and rights-based approach. Emerging from this would be a continuum of rights that represents a natural extension of those existing for humans, non-human legal persons, and protected species.

Abate’s accomplished career as a lecturer in law is reflected in the eloquence with which he elucidates the central thesis. The argument proceeds with an overview of the deficiencies in the current climate change regime and examines which legal tools might be utilised to shift towards an ecocentric legal system. In chapter two, Abate explores how climate change regulation has evolved from top-down, government mitigation towards ‘rights-based stewardship and climate justice legal theories’ (p. 18). Successive chapters analyse how this development has been conducive to protecting future generations, wildlife and natural resources. Through doing so Abate contends the precedent has been established for the expansion of more comprehensive rights for the voiceless. The final chapter lays out a framework for doing so, which comprises of a ‘substantive standard based on sustainable development […] and accompanying procedural mechanisms to enforce that standard’ (p. 173). These procedural mechanisms would enable plaintiffs to hold their government accountable for failing in their stewardship duties towards the voiceless.

Throughout the book, Abate employs a variety of legal case studies to support his reasoning. These are effective in demonstrating the point about precedent, however drawing some central themes from this disparate array of cases could have taken the argument further. Given how thoroughly Abate focuses on the existing corpus of law, devoting a single chapter to the new framework appears comparatively lacking. Perhaps this is because parts of the thesis are underdeveloped; for instance, the notion that sustainable development can provide the basis for a substantive legal standard. This contention skims past the fact that such an agenda constitutes customary law, and what could benefit the reader would be a discussion of the relationship between hard and soft law. This might have quelled doubts about the feasibility of using sustainable development as the basis for a substantive legal standard, which in its current form is an agenda with competing aims. Failing to do so, Abate overlooks the issue that the economic and social objectives of sustainable development are much more temporally rooted in the present and oftentimes anthropocentric. Redressing this would be essential for protecting the voiceless.

In the final chapter Abate recognises establishing and sustaining the political will as the key challenges to expanding these rights (p. 222). In addition to overlooking the competing sustainable development objectives, the book lacks nuance of how applicable such a framework would be for different countries. The reader is left wanting to know how these rights would manifest at international climate negotiations and be applied and enforced domestically. Though discussing intragenerational inequality would have diverged from the central thesis, what might have added to the analysis would be a discussion of the extent to which voices are heard evenly in the current international landscape. Behind the differentials in which certain voices are heard lay historical power imbalances that are both the cause of and hindrance to mitigating the climate crisis. Overlooking this imposes a normative assumption that the political will to implement ecocentric environmental protections in all countries is equal. Abate’s focus of the climate justice aspect of redressing the climate crisis is perhaps too environmentally-focused, at the expense of the human aspect. Arguably, this omission reflects the malleability of climate justice definitions more than an intentional oversight by Abate. However, existing inequality would make the positive right to inherit the role of climate steward and negative rights-based protection for wildlife and natural resources harder to achieve. An exploration of how the implementation of an ecocentric stewardship and rights-based model in one country would impact other countries could have remedied this to an extent.

Through combining three categories of the voiceless, Abate’s argument is novel for demonstrating how expanding the rights of one is complementary for mitigating the vulnerability of the others. The introduction does well in explaining why each entity can be conceived as ‘voiceless’, however the term itself might have been discussed in more depth. Arguably the concept of voicelessness is epistemologically problematic because it involves speaking on behalf of another. Abate makes the assumption that doing so offers effective legal protection. This has been a key argument made against rights of nature theories for the way in which it potentially imposes anthropocentric values. Naturally, the anthropocentrism of law creates a paradoxical situation when attempting to protect the rights of nature, and an awareness of this would have helped ensure the effective implementation of Abate’s stewardship model. Nonetheless, Abate’s framework provides a useful foundation for pursuing climate justice and rights of nature theories when approaching climate change law and policy.

Overall, Abate’s thesis helps to elucidate the shortcomings of current climate change law and policy, and provides a tentative roadmap for making it more ecocentric and justice-focused. His argument is clearly and convincingly expressed, and the aforementioned shortcomings are potential areas where the thesis could be developed, but as a whole do not weaken his central proposition. As a book it provides an invaluable resource for legal scholars interested in environmental rights, partly as a thesis but also for the corpus of cases that it documents. It would also be of considerable use to advocates of climate justice and rights of natural and animal welfare in pursuing their agendas. Additionally, owing to the fluidity of Abate’s writing style, the book would be of interest to laymen of law, which is a considerable feat given how complex many of the issues are. In the context of the climate crisis, this book is an essential and invaluable read.