The justice system complements the political system: Climate Change and Human Rights.

The University of Washington School of Law recently hosted a conference entitled Three Degrees: The Law of Climate Change and Human Rights. In the words of the conference organizers:

Numerous scholars have suggested that human rights law may provide the most adequate and responsible remedy for climate-related impacts, and this conference will create an international forum to thoroughly test the available remedies, raise the legal issues associated with these remedies, and collaborate over necessary advancements in the law.

Dan Bodansky raises an interesting question about using human rights law to address the problems posed by climate change: wouldn’t the focus on individuals through the use of legal remedies detract from the big-picture policy approaches that are most needed?

Climate change mitigation involves tremendously complex tradeoffs between different values. Focusing on particular individuals or cases, or on particular human rights, can obscure these tradeoffs, making sensible policymaking difficult. Although emphasizing the effects of climate change on human rights may be a useful means of mobilizing public concern and of prodding the political process, a solution to the climate change problem will, in the end, require political decisions by states, both nationally and internationally.

I appreciate Bodansky’s preference for large-scale political movements, but I think that law-making directed prospectively at the level of a political entity (city, state, country, etc.) can and is complemented by legal remedies for individual harm. Again and again I marvel at the blindness of doctors, for example, who direct their wrath at the legal malpractice system without considering the functions the system serves above and beyond punishing doctors. A patient injured by a medical procedure needs to bear the cost of taking care of his injuries regardless of the doctor’s fault. Given the absence of universal health care and the inadequacy of much of the existing health insurance in this country, is it any wonder that juries are likely when they have the chance to choose to have the doctor’s insurance carrier pay for the injured patient’s care? We all face the risk of bad outcomes from medical procedures; doesn’t it make perfect sense to socialize that risk, to have us all share it? Until we come up with a way to do that other than the malpractice system, individual justice is the best we’ve got.

So I would say to Bodansky: unless and until we have the most effective policy solutions to the problems posed by climate change, individual, case-by-case remedies for harm caused by climate change can only help.