Author: drmarchudson

This is a guest post by Sakshi Aravind (full bio at end of post).

Where should we look if we must begin to believe adjudication is one of the ways to achieve climate justice? Investing hope in courts may appear unrealistic if, for instance, one were to look at UK courts. This February, the Inner Crown Court sentenced an activist with Insulate Britain to prison for contempt of court.

From what has appeared in the press, the presiding judge had asked the defendant not to refer to climate change as motivation for their actions (where the defendant, along with three others, had blocked a busy junction in the City of London on the 25th October 2021 as a part of Insulate Britain climate campaign). The defendant appears to have referred to climate change in his closing speech, thereby earning the absurd wrath of the Court.

Now, on the face of it, the outcome appears preposterous. This was, after all, a case where people were being prosecuted for protesting on climate change grounds. Surely, they can argue on an accurately reasoned ground that explains why they were blockading the junction in the first place? Was this an instance of misreporting, or did the judge relinquish the need for reasoning, let alone legal reasoning? I can only find out if someone is willing to fill in a wordy form to obtain the transcript from the Court and pay the fees, just like the Digital Support Officer from the registry tells me I should do.

One can imagine why the question of courts, justice and accessibility remain narrowly interpreted and do not extend to interrogating the aftermaths of litigation, including holding the judges accountable in a way that makes more than legal sense.

Should I bother with this little absurdity when the higher courts in the UK have consistently thrown out most of the climate-related strategic litigation in the last few years, even as most other jurisdictions are turning to innovation and curiosity?  

On 16th February, it appeared that the Wolverhampton Magistrate Court assumed a different approach to the Just Stop Oil protestors, who were before the Court for blocking the distribution of oil from the Esso Fuel Terminal in Birmingham in April 2022. While the defendants were given a conditional discharge and ordered to pay costs, the presiding judge was also sympathetic towards their motivation. The judge was alert to the realities of climate change and termed the defendants’ actions one with an “admirable aim”. However, the Court believed that the necessities of consistency and legitimacy—those that characterise the rule of law in the UK—had to be upheld and the defendants convicted. To quote from the sentencing remark:

“Trust in the rule of law is an essential ingredient of society, and it will erode swiftly if judges make politically or morally motivated decisions that do not accord with established legal principles. Indeed I would become the self-appointed sheriff if I acted in such a way.

…

if good people with the right motivation do the wrong thing it can never make that wrong thing right, it can only ever act as substantial mitigation.”

We only have access to this sentencing remark because the Judicial Office contacted the media to clarify after Just Stop Oil went on a gloating spree misquoting the judge. Not unusual for predominantly white activist groups in the UK to do something cringe-worthy now and then. 

Why do the first and the second instance feel equally absurd? Should one look for hope in environmental movements in the wrong place and lie to themselves and others until the very thing they are hoping for materialises miraculously? Is strategic litigation successful only when a judge pats you on the head and provides a cinematic twist in adjudication?

Whatever the answer to these questions, investing hope in courts must be clear about two things.

First, adjudication is a refined strategy, which may or may not always provide the best possible outcome. But when it does, it is going to be significant and lasting.

Second, where the legal cultures are restrained, one must have realistic expectations about the kinds of environmental litigation that goes to courts.

While self-proclaimed environmental activists are prosecuted, not all cases can be considered environmental litigation, despite how damning such cases may turn out for the domestic criminal justice system. So, there is no need to be disingenuous about the judicial outcome. If we desire indulgence from legal systems and teary-eyed judges, we distract ourselves from the real problem—that of an impenetrable legal system and absurd procedural apparatus that can sweep you away from the system for the most inconsequential of faults.

If we use adjudication for our ends, we must focus on the content and strategy and less on the actors. Unlike the BIPOC fighting for environmental rights elsewhere against murderous regimes that do it lucidly, those in privileged spaces might require some practice. But it is entirely worth the effort.

While hope and optimism are a matter of individual and collective responsibility to some extent, when there comes the point where we must say “F*** hope!” like Australian academic Chelsea Watego tells us, we must understand and wholeheartedly endorse that moment.

Bio:

Sakshi is a Lecturer in Law and Social Justice at the Newcastle Law School, where she teaches environmental law, land law, constitutional law and jurisprudence. She completed her PhD at the University of Cambridge and her BCL at the University of Oxford. She works on comparative environmental law, legal theory, political economy, and climate justice.

You can read her previous guest post on All Our Yesterdays (on environmental racism in NGOs) here, and an interview “Indigenous resistance to extractivism and academic allyship” FULL of insights and also links to post-colonial and indigenous thinkers here, on the Environmental Politics website.