Climate crisis, law and shifting narratives

Emma Holland: Can you please tell us more about your background, and your work at the intersection of law and the climate crisis?

Nicole Rogers: I was a founding member of the School of Law and Justice at Southern Cross University, established in Lismore in 1993. From the beginning, as a group of academics, we shared a very strong commitment to environmental and social justice. A number of us were active in local environmental politics and acted as legal observers at North East Forest Alliance blockades. Consequently, and this was and is unique to our law school, we designed a law degree in which Environmental Law is a core unit and in which activists played a prominent role.

Given this focus, I was drawn to the wild law movement when it commenced in Australia over a decade ago. I instigated and co-led a Wild Law Judgment project, from 2014 to 2017, which involved writing and rewriting judgments using wild law tenets and principles. We published a collection of wild law judgments, entitled Law as if Earth Really Mattered, in 2017.

I began working in the area of law and the climate crisis a number of years ago, and I look at various dimensions of the climate crisis, including its human rights dimensions. In the last five years or so, my particular focus has been upon the narratives of climate change that are developing across a number of different areas, and their points of intersection. I’ve published two books in this area: Law, Fiction and Activism in a Time of Climate Change (Routledge, 2019) and Law, Climate Emergency and the Australian Megafires (Routledge, 2021). I am interested here in the impact and interrelationship of climate fiction, courtroom narratives and narratives of activism, and also in the ways in which climate science shapes these narratives. Storytelling plays such an integral role in social, legal and political change.

I see narratives functioning as catalysts for action, but also as mirrors, reflecting back to us our fears and preoccupations, and, importantly, as scripts: how can they assist us in moving forward into the uncharted, ominous terrain of the Anthropocene?

You’re currently co-leading the Anthropocene Judgments project. Can you explain more about the research focus and aims?

The project builds upon the growing body of critical judgment projects, including the Wild Law Judgment project. These projects are designed to expose the elasticity and possibilities in existing law, by rewriting judgments from an alternative perspective. The Anthropocene Judgments project differs from these projects in that the aim is for participants to write the judgments of the future, constructing futuristic scenarios and addressing the ethical and legal challenges to come.

Furthermore, it is intended to be an interdisciplinary project, in that we will work with writers of speculative fiction and climate scientist modellers in constructing those futuristic scenarios. We expect that a number of participants will tackle future climate impacts; we also see the implementation of Indigenous law, multi-species justice and multi-species judging, judging by AI and the legality of extra-terrestrial colonisation and extractivism as potent areas for investigation. Our participating future judges will develop their own ideas on what needs to be addressed. We have called the project a thought experiment in futureproofing the common law.

We are in the early stages with the project, which was launched on 17 February with an introductory workshop, but so far we have over 30 participants from all around the world. More information can be found on the webpage.

Do you believe the law is an effective tool to instigate change, and why?

My perspective on law has always been that it is a toolkit, which can be used creatively, even subversively, for all sorts of purposes related to the public good and to protect the environment. It can be unbelievably frustrating and difficult to achieve change through legislation and international agreements. In Australia, powerful corporate lobbyists influence the policies of the major political parties and this impedes law reform through statutory enactment.

One critical aspect to the Anthropocene Judgments project is that we are investigating cutting-edge thinking in the common law – that is, judge-made law. Here, the potential for change is enormous. For instance, courtrooms, and judges, can play and are playing a really important role in the fight for climate justice and climate action. We tend to think of judges as conservative, and indeed they are confined to some extent by the arguments and issues that are presented in their courtrooms, but when you have bold and adventurous litigants and litigators, you can have bold and adventurous judgments. We saw this, for instance, last year with the Sharma decision, and the finding that there is a novel duty of climate care to children.

Finally, what are some of the lessons you’ve learnt from working on multidisciplinary projects? And what kind of collaborative opportunities are you hoping to engage in at SEI?

We can’t afford the luxury of approaching a planetary-scaled problem like climate change from a narrow, silo-ed perspective, assuming that our own area of disciplinary expertise is adequate or sufficient. Drawing upon methodologies developed in other disciplines can be immensely useful and enlightening. Teamwork is, for me, another really critical component of multidisciplinary projects. We won’t get to where we need to be through a narrow, individualistic approach – we need to share insights and expertise and cross-fertilise in all imaginable directions.

Since my current focus is the Anthropocene Judgments project, I am hoping that members of the SEI will become involved in what we have designed to be an interdisciplinary project: as writers, as commentators, or as critical friends.

Nicole Rogers is one of SEI’s 2022 Visiting Fellows. Find out more about the Anthropocene Judgments here.

Nicole Rogers was one of the founding members of the School of Law and Justice at Southern Cross University. She is the author of Law, Fiction and Activism in a Time of Climate Change (Routledge, 2019) and Law, Climate Emergency and the Australian Megafires (Routledge, 2021), and co-editor of Law as if Earth Really Mattered: the Wild Law Judgment Project (Routledge, 2017). Law, Fiction and Activism in a Time of Climate Change was shortlisted for the international 2020 Hart-SLSA book prize and the 2020 inaugural Australian Legal Research Book Award.

Header image: bushfires at Fingal, Tasmania, 2020 by Matt Palmer via Unsplash.