Lawyers are watching Copenhagen keenly

There was a time when debate over humankind's impact on the environment could have been conducted in a calm manner - with mutual respect and deference. I imagine such a place was a smoky Victorian drawing room over brandy and cigars.

The question itself is rapidly becoming moot. Those who argue over wacky temperatures, polar bears and chunks of ice floating free in the Arctic are no different than those who argued over which song the band should play while the Titanic sank. Interesting? Perhaps. Useful? Not on your life.

Amidst all the global warming hysteria gripping the world is lost a fundamental fact about how our societies are ordered. The Chicken Little who lives in a fairy tale may run around in circles but, in our reality, he would be running straight into a courtroom.

No one can discount the importance of governments and popular opinion in the formation of policy. But, when seismic shifts have come in our society, they have usually originated in, or been ordered by, the courts. There is every reason to believe that the same will happen with the environment.

Governments, corporations and ordinary citizens alike would be well advised to anticipate the day when the courts may impose upon them the kind of regulatory mandates that are currently being left to elected bodies. In fact, the 21st century may be marked by the kind of judicial imposition of will as regards environmental protection in the same way the 20th century saw that same activism in the social arena.

Corporate lawyers and CEO's should be trying to get out in front of this litigious eventuality because, rightly or wrongly, public opinion has been hijacked. There was a time when talk about the environment was limited to "tree-huggers" in San Francisco who wanted only to dance naked in the non-acid rain during the summer of peace. What was once fringe has become decidedly mainstream.

Continuing to debate the fact or fiction of pending environmental catastrophe is best left to those with a reliable crystal ball. Societies around the world are beginning to organize in anticipation of a calamity that may or may not exist. Like the predictions of Y2K disaster (remember that?) a certain snowball effect is rapidly burying naysayers in its wake.

Many countries are already incorporating environmental rights and responsibilities as part of their constitutions. Take a look at Article 48A of the Constitution of India - "The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country." Article 51A goes further - "It shall be the duty of every citizen of India . . . to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures."

France has an environmental charter amended to its own constitution. A laundry list of environmental rights and responsibilities is then contained in 10 articles. Article 58 of the Russian Constitution reads, "Everyone shall be obliged to preserve nature and the environment, and care for natural wealth."
The most important aspect of these documents is that they all contain clauses giving ordinary citizens "standing" to bring cases to protect the environment in a way hitherto unimagined.
Such actions have usually depended on Tort law.

That is, a nuisance or trespass had to be proven and that person bringing the action had to be the one directly suffering from the interference with their own property rights. If, in future, these actions can be brought under the full weight and majesty of a constitutional challenge then the potential for judicial interjection cannot be underestimated.

At present, there is nothing explicit in the constitutions of either Canada or the United States that relates to the environment. Given the difficulty in amending either the US or Canadian constitutions, it is unlikely that there ever would be such a provision added - certainly nothing to compare with the Indian, French or Russian constitutions described above.

Then why worry? As the past has shown us in the arena of social change, courts composed of the right justices at the right time in history have never been shy at "reading in" to an already enumerated right a previously unimagined and unanticipated expansion in definition.

There is no reason to believe that the same could not be done with environmental questions. Both the Canadian and U.S constitutions contain language that is vague and broad enough to accommodate such an expansion.

Corporations are international entities. Regardless of current domestic law, they would be well advised to be proactive in anticipating a time when decisions currently made in the boardroom will be made from the bench. That is exactly what will happen when environmental rights become constitutional rights recognized by the highest courts.

Mother Nature may have tornadoes and hurricanes, tsunamis and earthquakes, in her current arsenal. But, the awesome and destructive power of those phenomena will be nothing in comparison to the tidal wave of change that comes when she gets herself a really good lawyer.

Gavin MacFadyen is a lawyer and freelance writer living in New York State. Past work has appeared in the Calgary Herald, Edmonton Journal, The Globe and Mail, the Buffalo News and on CBC Radio.