Law, Fiction and Activism in a Time of Climate Change 2019027883, 2019027884, 9781138611214, 9780429465406

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Dedication
Contents
Foreword
Preface
Acknowledgements
1 Narrating climate change
2 Climate catastrophism and legal aporia
3 Telling the tale of the children
4 The narrative of rights on a warming planet
5 Wild time
6 Beyond reason, beyond rules
7 The sense of an ending
Bibliography
Index

Citation preview

Law, Fiction and Activism in a Time of Climate Change

The book examines the narratives of climate change which have developed and which are currently evolving in three areas: law, fiction and activism. Narratives of climate change generated by litigants, judges, writers of fiction and activists are having, and will have, a profound effect on the way we respond to the climate change crisis. Acknowledging the prevalence of unreliable narrators, this book explores the reliability and significance of different forms of climate narrative. The author analyses overlapping themes and points of intersection, considering the recurrent motif of the trickster, the prominence of the child, the significance and ongoing viability of the rights discourse, and the increasingly prevalent emergency framing with its multiple implications for law’s empire. She asks how law, fiction and activism measure up as textual and performative fora for telling the story of climate change and anticipating a ­climate-changed future. And, in addition, how can they help foster transformative narratives which empower us to confront the climate change crisis? This highly topical, cross-disciplinary work will be of interest to anyone concerned about the growing climate emergency and makes a valuable contribution to climate law, environmental law, the environmental humanities and ecocriticism. Nicole Rogers is a Senior Lecturer in the School of Law and Justice, ­Southern Cross University, Australia. From 2014 to 2017, she instigated and co-led the Wild Law Judgment project, and she is co-editor of Law as If Earth Really ­Mattered: The Wild Law Judgment Project (Routledge, 2017).

TIDE by The Farm at Bleach Festival 2015 © Darcy Grant

Law, Fiction and Activism in a Time of Climate Change

Nicole Rogers

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business A GlassHouse book © 2020 Nicole Rogers The right of Nicole Rogers to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Rogers, Nicole, author. Title: Law, fiction and activism in a time of climate change / Nicole Rogers. Description: Abingdon, Oxon; New York, NY Routledge, 2020 | “A GlassHouse book” | Includes bibliographical references and index. Identifiers: LCCN 2019027883 (print) | LCCN 2019027884 (ebook) | ISBN 9781138611214 (hardback) | ISBN 9780429465406 (ebook) Subjects: LCSH: Climatic changes—Law and legislation. Classification: LCC K3585.5 .R64 2020 (print) | LCC K3585.5 (ebook) | DDC 344.04/6342—dc23 LC record available at https://lccn.loc.gov/2019027883 LC ebook record available at https://lccn.loc.gov/2019027884 ISBN: 978-1-138-61121-4 (hbk) ISBN: 978-0-429-46540-6 (ebk) Typeset in Galliard by codeMantra

For Freya and Lillika

Contents

Foreword Preface Acknowledgements

viii xii xiii

1 Narrating climate change 1 2 Climate catastrophism and legal aporia 31 3 Telling the tale of the children 61 4 The narrative of rights on a warming planet 94 5 Wild time 128 6 Beyond reason, beyond rules 155 7 The sense of an ending 184 Bibliography Index

195 225

Foreword

Thus the element in our story which seems most fictional … is in fact the most real part … The accident may not occur in the way we describe but the laws of probability assure us that ultimately it will occur. The logic of politics tells us that when it does the only way out will be a choice of disasters.1 There are many in the climate advocacy area that think ‘climate change’ is a far too benign a term to be realistic, preferring words like climate disruption, crisis or even emergency. But whatever you call it, the science is clear that the human race and everything we share this planet with is facing an existential threat of our own, somewhat inadvertent making.2

We have been here before. The first quote comes from the 1962 nuclear war novel Fail-Safe, later made into a classic film directed by Sidney Lumet and starring Henry Fonda. The ­author of the second quote is one of Australia’s most eminent biologists and a lead author of two assessment reports of the Intergovernmental Panel on ­Climate Change. Born a week after the end of the Cuban Missile Crisis and growing up in the 1970s and 1980s, I well remember the narratives around the possibility of nuclear annihilation (although ‘narrative’ has a much richer meaning today than it did then). In film alone, there were pseudo-documentaries like Britain’s The War Game, noir dramas such as Fail-Safe and its satirical doppelgänger Stanley Kubrick’s Dr Strangelove, or films like Threads and The Day After. My favourite remains John Badham’s WarGames, in which the awkward teenage hero not only wins the heart of the girl who was said to be ‘out of his league’, but also saves the world from a computer-initiated nuclear holocaust. That same computer, known by the not so subtle acronym WOPR, provides the final moral about the then geo-political orthodoxy of mutually assured ­destruction: ‘A strange game. The only winning move is not to play.’ 1 Eugene Burdick and Harvey Wheeler, Fail-Safe (Hutchinson of London, 1963) Preface. 2 Lesley Hughes, Speech at launch of the Australian Law Journal Special Issue on Climate Change and the Law, October 2018, reproduced in François Kunc (ed), ‘Current Issues’ (2019) 93 Australian Law Journal 7, 7.

Foreword  ix Today, the world faces a new global threat, and new narratives have proliferated in response to it. In the week that I am writing this, there are newspaper reports that the rate of species extinction has reached unprecedented levels, that the Great Barrier Reef will not survive a 1.5 degree global temperature rise and that extreme weather events are only going to increase. These and other such developments all fall under the title of ‘climate change’. In the 1970s, while the world worried about ‘the bomb’, James Boyd White pioneered the study of law and literature. Through his work, and that of philosophers, linguistic theoreticians and other scholars from a wide range of disciplines, we have come to understand better the power, importance and immanence of narrative. To be human is to tell and to listen to stories. We produce and consume narratives. The capacity to imagine the future – or multiple futures and including our own death – is unique to our species. While we are able to imagine, and therefore hope for, a better future, human beings can also ‘tax their lives with forethought of grief’.3 In this book, Dr Nicole Rogers offers an impressively thorough and well-­ written account of climate narratives in the law, fiction (who would have thought there is already so much ‘cli-fi’?) and activism, and how they intersect in today’s public square. The fundamental inquiry is the extent to which those narratives operate as a catalyst through being a mirror, a script or, in the event of disaster, a historical legacy. She builds on her earlier work to look into a tomorrow of ‘wild time’ when the world may be living the consequences of today’s failure to address climate change. I offer three reflections in response to reading this timely work of interdisciplinary legal scholarship. First, as a judge, I share the author’s doubt that in and of itself the narrative of the common law tradition can respond in a timely or adequate way to the issues posed by climate change. That is because the common law proceeds incrementally. The law has always responded to climate, albeit slowly. For example, one of the oldest recorded sets of laws – the Code of Hammurabi – contains the first example of farm debt relief. Law 48 provides: ‘If a debt is outstanding against a seignior and Adda has inundated his field or a flood has ravaged (it) or through lack of water grain has not been produced in the field, he shall not make any return of grain to his creditor in that year; he shall cancel his contract-tablet and he shall pay no interest for that year’.4 To ensure the legitimacy (in the sense of acceptance) of their decisions, courts rarely move ahead of the perceived weight of social opinion. They tend to lag a few years behind the zeitgeist. In most cases, that is not a bad thing. Even apparently revolutionary decisions such as Brown v Board of Education of Topeka, 347 US 483 (1954) desegregating American schools or Mabo v Queensland (No 2) (1992) 175 CLR 1 recognising native title in Australia can be shown to be the

3 Wendell Berry, The Peace of Wild Things (Penguin Books, 2018) 25. 4 James B Pritchard (ed), Ancient Near Eastern Texts (Princeton University Press, 1969) 168.

x Foreword end points of longstanding, antecedent social and legal development. The unprecedented media criticism of Justice Brian Preston for his recent decision recognising the effect of climate change in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 has been a salutary reminder of the enduring lack of consensus on the issue in Australia.5 Second, it follows that there will not be a timely legal response without rapid developments in public policy effected by political action and statutory change. The challenge which Dr Rogers identifies for the mirror and activist narratives has been neatly summarised in a recent book review in The New York Times: The problem with climate change, as an existential challenge to humanity, is that the interest-based model of society and politics doesn’t work. Most of the people in whose interest we are demanding action aren’t here. They ­haven’t been born yet. And because the areas first and most affected by climate change are the poorest regions of earth, we are talking about the least seen, least represented group on our planet. We have to imagine these people into being, and then grant them rights, and then take unprecedented, society-wide action on that basis.6 Third, fictional speculation about life in wild time tends to affirm that the need for order through law is a basic human instinct. However, it is usually a primordial legal order that no one would ever really want. An early, arguably ‘cli-fi’ example can be found in this conversation from John Christopher’s 1956 novel The Death of Grass, in which a virus has killed all forms of grass including staples such as rice, wheat and barley: ‘Tell me Custance – we are agreed that the process of law no longer exists in this country?’ ‘If it does, we’ll all hang.’ ‘Exactly. Now, if State law fails, what remains?’ John said carefully: ‘The law of the group for its own protection.’ ‘And of the family?’ ‘Within the group. The needs of the group come first.’ … ‘The final say is here.’ He tapped the rifle.7 To return, in conclusion, to the example of the nuclear threat, Dr Rogers writes that it is impossible to prove whether the narratives of the Cold War contributed 5 The response to his Honour’s decision is recorded in François Kunc (ed) ‘Current Issues’ (2019) 93(4) Australian Law Journal 251, 252–4. 6 John Lanchester, ‘Two New Books Dramatically Capture the Climate Crisis’, The New York Times (online, 12 April 2019) (emphasis added) . 7 John Christopher, The Death of Grass (Pergamon Press Ltd, 1975) 155 (published in the United States as No Blade of Grass). The book was made into a movie. However, unlike the film version of Fail-Safe, it has not endured in that form. The author’s real name was Samuel Youd.

Foreword  xi to the world coming through those dangerous times in one piece. While I accept that must be so, anecdotally I have no doubt that they did. Imagining the abyss helped to steer the world away from it. This book is an eloquent invitation to a similar act of imagination. It follows in the tradition of Boyd White, who famously posed the distinction between ‘the mind that tells a story and the mind that gives reasons’ and went on to say that ‘one must master both sorts of discourse (both narrative and analysis) and put them to work, at the same time and despite their inconsistencies, in the service of a larger enterprise’.8 Dr Rogers has indeed put both sorts of discourse to work. There can be no larger enterprise today than encouraging urgent action in response to the present and future crisis which is climate change. I am grateful for this opportunity to commend Law, Fiction and Activism in a Time of Climate Change as an engaging and important contribution to that task. Justice François Kunc Supreme Court of NSW April 2019

8 James Boyd White, The Legal Imagination (University of Chicago Press, abridged ed, 1985) 243.

Preface

I have endeavoured to take a broad approach and a long view, to focus on time, on future time and on what will come to pass. However, like all narrators, I am limited by, and mired in, the partiality of my own time and place. New climate narratives are constantly emerging, and existing climate narratives are still ­unfolding. Their long-term outcomes, relevance and impacts are not yet clear. I wrote this book in 2018 and in the first three months of 2019, but it is the product of many years of thinking and writing in the areas of climate law, activism, wild law and the performance of law. Chapter 2 is an augmented and revised version of my article ‘Making Climate Science Matter in the Courtroom’, published in a 2017 issue of the Environmental and Planning Law Journal and r­eproduced with the permission of the publisher. 1 Parts of Chapter 6 first ­appeared in my article ‘Beyond Reason: Activism and Law in a Time of Climate Change’, published in 2018 in the Journal for the Study of Radicalism and ­reproduced with the permission of the publisher. 2

1 The article was first published by Thomson Reuters in the Environmental Planning and Law Journal and should be cited as Nicole Rogers, ‘Making Climate Science Matter in the Courtroom’ (2017) 34 Environmental and Planning Law Journal 475. Parts of the article are reproduced with permission of Thomson Reuters (Professional) Australia Limited, .   For all subscription inquiries please phone, from Australia: 1300 304 195, from overseas: +61 2 8587 7980 or online at . 2 This article originally appeared in the Journal for the Study of Radicalism, Volume 12, 2018, Issue 2, pages 157–81. Copyright © 2018 by Michigan State University.

Acknowledgements

I would like to thank all the individual members of my family: my brilliant and wonderful daughters Freya and Lillika, my endlessly supportive parents A ­ ndrew and Shirley and stepmother Helen, my sister Karen and brother-in-law David, my enthusiastic and caring niece Rebecca and my stalwart nephew James. You have all contributed in various ways to this book. I am so very f­ortunate to have you all in my life. My Dean and friend William MacNeil has been an ever-encouraging ­presence, ensuring that I have had time and space to write. Thank you for this, Bill, and for all the stimulating conversations and feedback. No one could ask for a more supportive Dean, or for one as receptive to interdisciplinary research. My Law School colleagues Natalia Szablewska, Rohan Price, Tom Round, Jennifer Nielsen, Helen Walsh and Alessandro Pelizzon have provided various forms of support and assistance. I feel very privileged to work with people like you. Greta Bird has helped to shape my ideas in so many ways, over three decades. Matthew Rimmer generously shared resources. My good friend Brian Opeskin also played an important role in this project. In July 2018, the Narratives of Climate Change symposium took place at Newcastle Law School. The idea for the symposium was mine, but the ­symposium could not have happened without Professor Tania Sourdin’s offer to host it, and the extraordinary organisational efforts of Elena Aydos and Ana Rengel ­Goncalves. Thank you to Tania, Elena and Ana for this, and many thanks to all the contributors to the symposium for joining us in such a stimulating and important interdisciplinary event. I am very grateful to Colin Perrin at Routledge for his ongoing support for this project. Finally, my husband Brendan Mackey has been an ever patient, ever engaged participant in continuous conversations and discussions as the book has ­progressed. I consider myself beyond lucky to have a partner who walks by my side on all my intellectual and other journeys, and whose loyalty and faith in me never wavers.

1 Narrating climate change

We, those of us alive in the helter-skelter early decades of the twenty-first century, are all children of the Anthropocene, whether we fall into the categories of the privileged, the suffering, the curious, the angry, the optimistic, the alarmed, the fatalistic, the ignorant and/or the complacent. Although there have been other suggested names for the period of climatic and ecological disruption that we are now increasingly experiencing,1 the Anthropocene is the most commonplace, if not yet formally accepted by the global body with the responsibility for naming geological eras.2 Our times are unprecedented, at least in known human history. There may well be parallels with events far back in deep time,3 but, despite the stories contained in paleoecological records4 or those frozen into rapidly vanishing polar ice,5 despite ongoing efforts to tell the grand story of the universe,6 overall we lack narratives with which to frame and make manageable such cataclysmic, pre-historical events.

1 These include, for example, the Capitalocene, Plantationocene and Chthulucene: see Donna Haraway’s explanation of these terms in ‘Anthropocene, Capitalocene, Plantationocene, Chthulucene: Making Kin’ (2015) 6(1) Environmental Humanities 159, 160. 2 This term was first coined by Paul J Crutzen and Eugene F Stoermer in 2000: Paul J Crutzen and Eugene F Stoermer, ‘The “Anthopocene”’ (2000) 41 (May) Global Change Newsletter 17. The International Commission on Stratigraphy established an Anthropocene Working Group in 2009, with the task of investigating whether the term should be formally adopted to designate the current epoch in the geological timescale. 3 Dale Dominey-Howes argues that ‘the contemporary crisis narrative of the Anthropocene that imagines the catastrophe of the Anthropocene as a unique event in the planet’s history is materially inaccurate and demeans the hazard and disaster experience of the past’: Dale DomineyHowes, ‘Hazards and Disasters in the Anthropocene: Some Critical Reflections for the Future’ (2018) 5(1) Geoscience Letters 7:1–15, 6 . 4 See Connor Nolan et al, ‘Past and Future Global Transformation of Terrestrial Ecosystems under Climate Change’ (2018) 361(6405) Science 920. 5 Nancy Campbell writes that: ‘The polar ice is the first archive, a compressed narrative of all time in a language humans have just begun to learn’; The Library of Ice. Readings from a Cold Climate (Scribner, 2018) 26. 6 For instance, Michel Serres has developed a ‘Great Story’ or narrative of the universe, which is told by the universe itself; see Christopher Watkin, ‘Michel Serres’ Great Story: From Biosemiotics to Econarratology’ (2015) 44(138) SubStance 171. See also Brian Swimme and Thomas

2  Narrating climate change How do we make sense of climate chaos or chart a path through the Anthropocene? Writers from many disciplines are producing a profusion of texts in an attempt to answer this question. Novelists, playwrights and screenwriters are creating works in which their characters stumble or bravely stride through the all too plausible dystopias of a climate-changed future. Scientists are utilising every possible mode of communication, including theatre,7 letter writing,8 screen writing9 and activism,10 to convey a narrative of urgency and crisis. Lawyers are arguing for the extended, innovative application of legal principles in areas and scenarios that the original creators of these principles never envisaged. These are some of the emerging narratives of climate change, our well-intentioned efforts to comprehend, survive and somehow continue to thrive as a species in the age of climate disruption. The cross-disciplinary nature of narrative is now widely recognised and has been termed the ‘narrative turn’. Looking at narrative in disciplines outside the humanities allows for an exploration of the ‘storied forms of knowledge’ in these areas.11 Although there are, arguably, many different narratives of climate change, including most prominently the narratives of climate change science and those which unfold at the level of international climate politics, my focus here is on the growing collection of narratives in climate litigation, climate fiction12 – encompassing literary texts and theatrical and screen productions – and climate activism. Of this cross section, only courtroom narratives have political gravitas and what Jacques Derrida famously called the ‘force of law’;13 unlike other

Berry, The Universe Story. From the Primordial Flaring Forth to the Ecozoic Era – A Celebration of the Unfolding of the Cosmos (Harper Collins, 1992). 7 See, eg, Stephanie Merritt, ‘Climate Change Play 2071 Aims to Make Data Dramatic’, The Guardian (online, 5 November 2014) . 8 In 2015, science communicator Joe Duggan organised an Australian exhibition called ‘Is This How You Feel?’, consisting of handwritten letters by climate scientists on how they felt about climate change. 9 See Garry Maddox, ‘Climate Fiction Forum Sees TV Drama as One Solution to Global Warming’, The Sydney Morning Herald (online, 15 August 2017) . 10 See Justin Gillis, ‘Climate Maverick to Retire from NASA’, The New York Times (online, 1 April 2013) . 11 Martin Kreiswirth, ‘Narrative Turn in the Humanities’ in David Herman, Manfred John and Marie-Laure Ryan (eds), Routledge Encyclopedia of Narrative Theory (Routledge, 2005) 377, 380. 12 Climate fiction is more popularly known as ‘cli-fi’, a term invented and popularised by American journalist Dan Bloom. A survey of climate fiction can be found in Adeline Johns-Putra, ‘Climate Change in Literature and Literary Studies: From Cli-fi, Climate Change Theater and Ecopoetry to Ecocriticism and Climate Change Criticism’ (2016) 7(2) WIREs Climate Change 266. As well as discussing novels and plays, the author also covers climate change poetry, which is beyond the scope of this book. A detailed study of climate fiction can be found in Adam Trexler’s Anthropocene Fictions. The Novel in a Time of Climate Change (University of Virginia Press, 2015). 13 Jacques Derrida, ‘Force of Law: the “Mystical Foundation of Authority”’, tr Mary Quaintance (1990) 11(5–6) Cardozo Law Review 920.

Narrating climate change  3 narrative forms, these will (sometimes14) be enforced by the State. Nevertheless, other climate narratives have an important role to play: in influencing public opinion, in generating discussion at various levels and in political and apolitical spaces, and in enabling us to apprehend the uncanny, all-encompassing and immersive dimensions of the ‘hyperobject’15 of climate change. A comprehensive examination of all legal, fictional and activist climate narratives is beyond the scope of this book or any book, given the ongoing proliferation of such narratives across all fields. I have endeavoured to draw upon a diverse and broad cross section of texts and performances at this point in time for what is, essentially, a thematic discussion. In investigating the narratives that have emerged and are emerging across the three fields, I consider their effectiveness in enhancing our understanding of climate change and in shaping political and societal responses to what is increasingly seen as an existential crisis for humanity: thus, climate narratives as catalyst. Here the porous quality in such narratives, their points of intersection and areas of cross-fertilisation become important. I am interested in identifying the themes and central concerns which emerge in the context of the climate change story, and in looking at the commonalities in narratives from these diverse areas; this discussion turns on climate narratives as mirror. Finally, I address the question of whether narratives can provide useful insights into humanity’s fate and the fate of the nonhuman in an age of growing climate disruption; here, I consider climate narratives as script, containing speculations and suggestions for navigating what lies ahead. Yet the effectiveness of narrative as script in part depends upon the longevity of narrative and the extent to which various narratives can and will endure in a ­climate-changed future. I address the enduring quality of narrative in the final chapter. In any analysis of climate change, it is important to acknowledge the significance of time. The intersection of different timescales and our blinkered awareness of time are integral to the climate change crisis. As Roy Scranton points out, the climate change catastrophe is occurring now and the ‘dissonance’ between that stark fact and our short-sighted preoccupations is ‘perhaps the defining truth of our era’.16 He writes that: For most of us, the day-to-day time of global capitalist civilization remains the beating pulse of our lives, even as the world around us changes into something strange and awful.17 Novelist Nathaniel Rich attributes our inability to ‘take the long view’ to a reluctance ‘to grapple with the transience of all we know and love in the great sweep

14 This statement requires qualification in light of the capacity and propensity of governments to legislate so as to overrule judicial decisions that generate politically unpopular outcomes, as discussed in Chapter 2. 15 This term is Timothy Morton’s: Timothy Morton, Hyperobjects. Philosophy and Ecology after the End of the World (University of Minnesota Press, 2013). 16 Roy Scranton, We’re Doomed. Now What? (Soho Press, 2018) 329–30 (emphasis in original). 17 Ibid 329.

4  Narrating climate change of time’.18 In light of our fixation on the present, it is unsurprising that there has been a resounding failure to act on the part of governments. In Rosemary Lyster’s words, intergovernmental negotiations proceed ‘at a snail’s pace’.19 We are trapped in the ‘politics of postponement’, 20 as necessary mitigation measures are deferred to some indeterminate point in the future.21 We exist in the ‘gap’, the ‘time lag’ between past emissions and their most disruptive consequences.22 In the discussion which follows, I am using the term ‘wild time’ to describe a future in which the world has been radically transfigured by climate change: the chaotic future period in which the logic, institutions, modes of interacting and artefacts of civilisation are abruptly or gradually undone as a consequence of climatic and other disruptions. We are currently living in an age of climate disruption but the complete unfolding of wild time is yet to come. Our fractured awareness of this lends added poignancy to the contemporary narratives that we are telling ourselves about climate change and the challenges it poses for current and future generations.

Time and the Anthropocene Human history constitutes but a fragment, a ‘millimicrosecond’ of the ‘almost incomprehensible immensity’ of deep time23 or planetary time. It is difficult to comprehend deep time, in its vast entirety, as anything other than an abstraction. Stephen Jay Gould maintains that we can only approach an understanding of deep time through metaphor, 24 and indeed Tim Flannery evokes Dr Who and his time travel adventures by deploying the metaphor of time’s gateways to describe the closure of one geological period and the beginning of a new one.25 Many geologists and earth system scientists, amongst others, believe that we have reached such a juncture in the slow march of epochs, although the longawaited official pronouncement to that effect from the International Commission on Stratigraphy has thus far failed to eventuate. It would appear from the updated International Chronostratigraphic Chart released by the Commission in July 2018 that we are, in fact, living in a third stage of the Holocene, the Meghalayan, which began some 4,200 years ago and continues to the present.

18 Nathaniel Rich, ‘Losing Earth: The Decade We Almost Stopped Climate Change’ (1 August 2018) The New York Times Magazine . 19 Rosemary Lyster, Climate Justice and Disaster Law (Cambridge University Press, 2015) 98. 20 Richard Falk, ‘Climate Change, Policy Knowledge, and the Temporal Imagination’ in Paul ­Wagner and Hilal Elver (eds), Reimagining Climate Change (Routledge, 2016) 49, 63. 21 Ibid 53. 22 Scranton (n 16) 321. 23 Stephen Jay Gould, Time’s Arrow, Time’s Cycle. Myth and Metaphor in the Discovery of Geological Time (Harvard University Press, 1987) 2. 2 4 Ibid 3. 25 Tim Flannery, The Weather Makers. The History and Future Impact of Climate Change (Text Publishing, 2005) 46.

Narrating climate change  5 Bruno Latour has attributed the lengthy delay in the ruminations of the Commission to ‘the mix of time scales they have to confront’.26 The accepted ‘slow rhythm of geological time’ has been disrupted by the ‘rapid rhythm of geo-­ human history’.27 Ben Dibley is not alone in highlighting the importance of the ‘rather shorter history of capital’28 when describing the conflation of different concepts of time, and indeed some commentators consequently refer to our current period as the Capitalocene.29 Yet the Anthropocene is the preferred term in cultural discourse, acknowledging as it does the role of humankind as catalyst for large, unstoppable, planetary forces that are shaping geohistory; in the Anthropocene, we find humans ‘wield[ing] a geological force’.30 In the vanishingly small segment of time in which humanity has existed on Earth, we have sufficiently aggravated and disrupted ‘natural’ processes such as to threaten all life on this planet. It is indisputable that current and past human activities will have dire, long-term consequences for human society and civilisation, as well as for countless other species. The Western relationship with and understanding of time may well contribute to our seeming incapacity to fully comprehend and accept responsibility for the future consequences of our actions. Cultural understandings of time differ. Time as regulated linear progression and, indeed, the more recent manifestation of time as commodity can be considered to be peculiarly Western phenomena, and these concepts of time are linked to the triumph of capital and the modernist illusion of endless growth.31 First Nations people have traditionally had a different relationship with time. Irene Watson describes an alternative way of perceiving and, in fact, ‘walking into’ time for Nunga people in South Australia: In general, in a Nunga perspective, time and space are encompassed within a circle of becoming. We are always returning to the beginning and are walking into both the future and the past; time and space are encompassed and encircled as one.32 In a similar vein, Deborah Bird Rose has documented the differences between Western notions of time and the perceptions of the Vic River people in the Northern Territory of Australia. For these people, we are the ‘behind’ mob,

26 Bruno Latour, Facing Gaia. Eight Lectures on the New Climatic Regime, tr Catherine Porter (Polity, 2017) 116. 27 Ibid (emphasis in original). 28 Ben Dibley, ‘“The Shape of Things to Come”: Seven Theses on the Anthropocene and Attachment’ (2012) 52 Australian Humanities Review 139, 140. 29 See Jason W Moore (ed), Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism (PM Press, 2016). 30 Dipesh Chakrabarty, ‘The Climate of History: Four Theses’ (2009) 35(2) Critical Inquiry 197, 206. 31 Benjamin J Richardson, Time and Environmental Law. Telling Nature’s Time (Cambridge University Press, 2017) 29. 32 Irene Watson, Aboriginal Peoples, Colonialism and International Law. Raw Law (Routledge, 2015) 17.

6  Narrating climate change coming after those of earlier days; they are oriented towards origins rather than towards the future.33 This is a ‘temporal orientation’ that reverses ‘European co-ordinates’.34 The intimate and nonlinear connections and responsibilities35 between past, present and future generations are apparent in such circular framings of time. In light of inconsistencies in different concepts of time, the problematising of time in the cultural construction of the Anthropocene, and the critical importance of time in understanding and addressing climate change, it is unsurprising that time features prominently in many climate change narratives. Furthermore, these narratives often allude to, describe and/or are written under the looming shadow of wild time.

Wild time The Anthropocene is already upon us. Wild time, on the other hand, lies ahead. Another way of thinking about wild time is to view it as the post-midnight world, ushered in when the minute hand on the Doomsday Clock reaches 12 o’clock. Wild time no longer resembles ‘official time’,36 or Western linear time; the notion of clocks becomes meaningless. Jimmy, a central character in Margaret Atwood’s MaddAddam climate fiction trilogy37 and one of the few human survivors after a global apocalypse, reflects that ‘[n]obody nowhere knows what time it is’.38 It is, he concludes, ‘zero hour’.39 The Doomsday Clock was created in 1947 as a pictorial representation of the global implications of the newly trialled atomic bomb. Artist Martyl Langsdorf, whose husband had worked on the Manhattan project, designed the Clock as the cover for the June 1947 edition of the Bulletin of the Atomic Scientists.40 Langsdorf chose the original setting for the Clock, at seven minutes to midnight,41 but the Bulletin’s Science and Security Board subsequently assumed control of the minute hand. The Clock has persisted as a potent cultural metaphor, an expression of scientific and popular concerns about nuclear weapons. Midnight on the Doomsday

33 Deborah Bird Rose, Reports from a Wild Country. Ethics for Decolonisation (University of New South Wales Press, 2004) 55. 3 4 Ibid 152. 35 Ibid 175. 36 Margaret Atwood, Oryx and Crake (Bloomsbury, 2003) 3 (‘Oryx and Crake’). 37 The trilogy, ‘MaddAddam trilogy’, consists of three novels: Atwood, Oryx and Crake (n 36); Margaret Atwood, The Year of the Flood (Bloomsbury, 2009) ‘The Year of the Flood’; and Margaret Atwood, MaddAddam (Bloomsbury, 2013) ‘MaddAddam’. 38 Atwood, Oryx and Crake (n 36) 3. 39 Ibid. 40 William Yardley, ‘Martyl Langsdorf, Doomsday Clock Designer, Dies at 96’, The New York Times (online, 10 April 2013) . 41 Ibid.

Narrating climate change  7 Clock was originally intended to represent global annihilation as a consequence of a nuclear apocalypse. Since 2007, the looming threats posed by climate change have been factored into the Board’s positioning of the minute hand. For many, a nuclear apocalypse, while still a strong possibility, has been overshadowed by the unpredictable but seemingly unavoidable existential crisis of climate change. The Doomsday Clock displays an idiosyncratic approach to time as its minute hand hovers in the precarious breathing space before midnight. This can be explained by the specific function of the Clock: it is not measuring time in the steady, linear fashion of other clocks but rather predicting the imminence of a nuclear and/or environmental Doomsday. Hence, the minute hand on the Doomsday Clock charts a nonlinear course in accordance with political, and now environmental, challenges. Time occasionally moves backwards on the Doomsday Clock; in 1991, after the historic conclusion to the Cold War, the custodians of the Clock wound the minute hand backward to 17 minutes before midnight.42 At present, however, the minute hand sits at an ominous two minutes to midnight. According to the Bulletin’s Science and Security Board, this reflects ‘the new abnormal’, ushered in by ‘intersecting nuclear, climate and information warfare threats’.43 The implied message of the Clock is that there is an end point for humanity: one apocalyptic moment. It is, however, unlikely that we will be able to pinpoint the precise moment at which a climate change midnight occurs. Midnight, occurring as a consequence of climate change, is more appropriately viewed as one ‘long transitive moment’, a phrase Deborah Bird Rose has used in relation to colonisation:44 a moment dispersed over time and space. In contrast to a global nuclear apocalypse, the destruction waged by climate change is, as Tom Cohen puts it, arguably ‘not apocalyptic at all’ in that ‘there is no calamitous instant precisely, no revelation’.45 Certainly, a definitive global apocalypse features in some climate fiction and quite a lot of science fiction. Examples include the accidental or intentional onset of a major worldwide pandemic46 and an industrial accident that releases sufficient reserves of methane such as to trigger a global wave of fire.47 However, a climate change midnight becomes a plausible proposition only if different geographical areas and populations are assigned their own individual Doomsday Clocks. 4 2 Derek Hawkins, ‘The History of the Doomsday Clock as It Moves Closer to “Midnight”’, The Washington Post (online, 27 January 2017) . 43 Bulletin of the Atomic Scientists, ‘Welcome to “The New Abnormal”’ (Press Release, 24 January 2019) . 4 4 Rose (n 33) 65. 45 Tom Cohen, ‘The Geomorphic Fold: Anapocalyptics, Changing Climes and “Late” Deconstruction’ (2010) 32(1) The Oxford Literary Review 71, 77 (emphasis in original). 4 6 For instance, in the MaddAddam trilogy (n 37) and James Bradley, Clade (Hamish Hamilton, 2015). 47 Liz Jensen, The Rapture (Bloomsbury, 2009).

8  Narrating climate change In her climate fiction novel Dyschronia, Jennifer Mills describes a surprising and disturbing event: the localised retreat, rather than rise, of the sea and the consequences for the doomed town of Clapstone, which has become an industrial sacrifice zone. This event represents a significant turning point for the town’s inhabitants. Mills writes that, in its inconceivable withdrawal, the sea drew ‘a line between now and then’,48 and that this event was a ‘time mark’, one of a sequence of ‘events so destabilising that they have taken the place of clocks’.49 Midnight still lies ahead for Clapstone, ushered in by the escape of toxic gases from their underground storage in a local reservoir. Yet both of these ‘time mark[ing]’ events and their consequences are unique to Clapstone; other areas will experience or will have already experienced their own definitive moment of midnight. It is entirely possible that a singular moment of planetary midnight will elude us. Climate change ‘threatens to annihilate not with a bang but a whimper’.50 In our age of spectacle, we can witness on our screens such ominous events as widespread reef bleaching, hurricanes, massive bush fires, encroaching drought, destructive flooding and sea inundation with apparent equanimity. As David Mitchell’s narrator describes in the final chapter of The Bone Clocks, reflecting on the pattern of accelerating climate disruption from the vantage point of 2043, ‘[t]he news turned into a plotless, never-ending disaster movie I could hardly bring myself to watch’.51 Climate change is, as Roy Scranton points out, ‘a gradual process happening year by year, punctuated not by one global event but by an unpredictable series of increasingly damaging local disasters’, ‘regional phenomen[a]’ which are ‘swiftly superseded’ by the next disaster.52 ‘Slow emergencies’ are, arguably, as significant as sudden disasters.53 The conceptual difficulties which arise from identifying and recognising a definitive planetary midnight speak to the slipperiness of wild time, the distortions inherent in our everyday relationship with time, our discomfort with our own mortality, and the overall shortcomings of apocalyptic framings in popular culture. And yet, the wild time of climate change is approaching rapidly and, seemingly, inexorably. In this version of wild time, humans will be living on and within what eminent Australian climate scientist Will Steffen and his colleagues have termed ‘Hothouse Earth’; they predict that ‘the impacts of a Hothouse Earth pathway on human societies would likely be massive, sometimes abrupt, and undoubtedly disruptive’.54 Hothouse Earth puts at risk ‘the habitability of the planet for humans’.55 48 Jennifer Mills, Dyschronia (Picador, 2018) 62. 49 Ibid 44. 50 Cohen (n 45) 80. 51 David Mitchell, The Bone Clocks (Holder and Stoughton, 2014) 525. 52 Scranton (n 16) 329. 53 Dominey-Howes (n 3). 54 Will Steffen et al, ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115(33) PNAS 8252, 8257. See also Camilo Mora et al, ‘Broad Threat to Humanity from Cumulative Climate Hazards Intensified by Greenhouse Gas Emissions’ (2018) 8(12) Nature Climate Change 1062, in which the authors conclude that multiple climate hazards, intensified by ongoing greenhouse gas emissions, ‘pose a heightened threat to humanity’: at 1071. 55 Steffen et al (n 54) 8256.

Narrating climate change  9 The wild time of runaway climate change is about vanishings and obliterations: whole species, in all their diversity and colour and uniqueness, definitively gone; cities vanishing; continents transformed. This wild time, in its most destructive manifestation, culminates in the end of humanity or at least, even if we cling on as a species in the form of James Lovelock’s ‘breeding pairs’,56 in the eradication of history and the end of civilisation.57 Last to go in such a bleak scenario may well be stories and names and language itself. Recorded history comprises only a fragment of the deep history of our species.58 Cormac McCarthy’s ‘Man’, struggling to care for his son in the bleakest of wild times in The Road, reflects on the fragility of memory, language and names in the following passage: The names of things slowly following those things into oblivion. Colors. The names of birds. Things to eat. Finally the names of things one believed to be true. More fragile than he would have thought.59 Similarly Jimmy, self-identifying as the Snowman in Margaret Atwood’s Oryx and Crake, wrestles with the ‘dissolution of meaning’ of the items in his antiquated vocabulary60 and what one commentator has called the ‘semantic flotsam’61 of his cultural references, in a post-apocalyptic world in which he believes himself to be the sole human inhabitant. Time itself will remain but will no longer assume the form with which we are familiar. Deep time, planetary time, that profound but impossible to comprehend backdrop to our tiny moment on Earth, overshadows our short-term preoccupation with clocks and calendars, linear time, even cyclical time. In the post-midnight world, time becomes only the slow, inexorable, planetary forces and processes that preceded, accompanied and will supersede humanity’s time on Earth. It is no longer measured in the ways we have come to take for granted. This is time unleashed from human accounting, a category of time that Stephen 56 James Lovelock, The Revenge of Gaia. Why the Earth is Fighting Back – And How We Can Still Save Humanity (Penguin Books, 2006) 10. 57 At a conference at the University of Melbourne in 2011, Professor Hans Joachim Schellnhuber, Director of the Potsdam Institute for Climate Impact Research, stated that the difference between a two degree increase in global temperature and a four degree increase was human civilisation: see Peter Christoff, ‘Are You Ready For a Four Degree World?’, The Conversation (online, 5 August 2011) . In December 2018, eminent naturalist David Attenborough described the ‘collapse of our civilisations’ as ‘on the horizon’: quoted in Damian Carrington, ‘David Attenborough: Collapse of Civilisation Is on the Horizon’, The Guardian (online, 3 December 2018) . 58 Chakrabarty (n 30) 212–13. 59 Cormac McCarthy, The Road (Picador, 2006) 75. 60 Atwood, Oryx and Crake (n 36) 39. 61 Karin Hopker, ‘A Sense of an Ending – Risk, Catastrophe and Precarious Humanity in M ­ argaret Atwood’s Oryx and Crake’ in Sylvia Mayer and Alexa Weik Von Mossner (eds), The Anticipation of Catastrophe. Environmental Risk in North American Literature and Culture (­Universitatsverlag Winter, 2014) 161, 176.

10  Narrating climate change Jay Gould identifies as ‘alien’.62 Or, as acclaimed science fiction writer Ursula Le Guin has put it: We make too much history. With or without us there will be the silence and the rocks and the far shining.63

The terrain of the trickster Amitav Ghosh has written that ‘we have entered a time when the wild has become the norm’.64 But what is meant, here, by wild? It has been argued, for instance, that the truly wild, in the sense of pristine and untouched, no longer exists in any concrete physical form; all planetary landscapes are ‘gardened’ and bear the marks of human management.65 Other writers and conservationists66 have challenged this ‘conceptual assassination of wilderness’.67 The concept of rewilding, which includes the reintroduction of apex predators into damaged ecosystems, implies that humans can recreate the wild or some approximation of it.68 The word can also be used to describe particular modes of behaviour, events, cultural dynamics and social interactions. In this application, wild evokes unpredictability, chaos and rule-breaking. Its meaning can shift, depending upon particular perspectives and value systems. Deborah Bird Rose has adopted an indigenous perspective in referring to wild country as terrain that is tamed, manmade and civilised; ‘quiet’ country has not been similarly destroyed.69 Wild time would therefore seem an appropriate term for what is indisputably an anthropogenic catastrophe: climate change. In later work, however, Rose reverts to a

62 Gould (n 23) 3. 63 Ursula Le Guin, ‘Deep in Admiration’ in Anna Tsing et al (eds), Arts of Living on a Damaged Planet. Monsters of the Anthropocene (University of Minnesota Press, 2017) M15, M19. 6 4 Amitav Ghosh, The Great Derangement. Climate Change and the Unthinkable (University of Chicago Press, 2016) 8. 65 See, eg, Peter Kareiva, Michelle Marvier and Robert Lalasz, ‘Conservation in the Anthropocene: Beyond Solitude and Fragility’ (2012) 2 Breakthrough Journal ; William Cronon (ed), Uncommon Ground: Rethinking the Human Place in Nature (W W Norton, 1995); Emma Marris, Rambunctious Garden. Saving Nature in a Post-Wild World (Bloomsbury, 2011). 6 6 See, eg, George Wuerthner, Eileen Crist and Tom Butler (eds), Keeping the Wild. Against the Domestication of Earth (Island Press, 2014). 67 This phrase appears in David W Kidner, ‘The Conceptual Assassination of Wilderness’ in ibid 10. 68 See Christof Schenck, ‘Rewilding Europe’ in George Wuerthner, Eileen Crist and Tom B ­ utler (eds), Protecting the Wild. Parks and Wilderness, The Foundation for Conservation (Island Press, 2015) 96; George Monbiot, ‘The British Thermopylae and the Return of the Lynx’ in ­Wuerthner, Crist and Butler (eds) (n 66) 105; and John Davis, ‘Letting it Be on a Continental Scale: Some Thoughts on Rewilding’ in Wuerthner, Crist and Butler (eds) (n 66) 109. 69 Rose (n 33) 4.

Narrating climate change  11 ‘specifically Western’ meaning of the word: ‘the wild is a refusal to submit to the conventional limitations of Western thought’.70 Wild can thus embrace the inviolate and the utterly desecrated, freedom and destruction, rule-breaking and the already broken and the resolutely unbroken. It is unfamiliar and unsettling and utterly necessary. In wild time, even in our current prelude to wild time, the uncanny becomes the norm as Timothy Morton71 and others have observed. Amitav Ghosh writes that ‘[n]o other word comes close to expressing the strangeness of what is unfolding around us’.72 Wild time, in light of its strangeness, uncanniness and multiple contradictions, can be viewed as the space of the trickster. Wild time is distinguished by chaos, disruption and unpredictable events that have not been planned and certainly cannot be managed by humankind, and trickster narratives, as Melinda Harm Benson and Robin Kundis Craig acknowledge, are predicated on ‘chaos and unpredictability’.73 Wild time encompasses possibilities beyond our normal processes of logic and reasoning and hence trickster digressions and machinations become paramount. Unsurprisingly, the trickster surfaces in many climate change narratives, as corporate tricksters, activist tricksters and the tricksters of climate fiction shape shift and play with and outside existing rules. Wild time provides a somewhat different temporal and conceptual framing to the idea of the Anthropocene. The Anthropocene, as Thomas F Thornton and Patricia M Thornton put it, ‘is unambiguous about humans as perpetrators’.74 In wild time, however, there is no longer any possibility of sustaining the illusion that human mastery over the planet and its inhabitants is possible. In fact, a precursor to wild time is the growing awareness that nonhuman entities and objects seem to have acquired agency or, more likely, have had agency all along.75 In the context of the climate, this is an agency which has nothing to do with rationality and which arguably has trickster attributes. Should we adopt Robin Kundis Craig’s suggestion and view climate change as a trickster?76 In so doing, we are personifying and anthropomorphising an incomprehensibly large, complex, unknowable phenomenon, or rather an ongoing, interactive series of phenomena. This is not without its precedents in

70 Deborah Bird Rose, Wild Dog Dreaming. Love and Extinction (University of Virginia Press, 2011) 12. 71 Timothy Morton, ‘This is Not My Beautiful Biosphere’ in Tom Bristow and Thomas H Ford (eds), A Cultural History of Climate Change (Routledge, 2016) 229, 233. 72 Ghosh (n 64) 30. 73 Melinda Harm Benson and Robin Kundis Craig, The End of Sustainability. Resilience and the Future of Environmental Governance in the Anthropocene (University Press of Kansas, 2017) 54. 74 Thomas F Thornton and Patricia M Thornton, ‘The Mutable, the Mythical and the Managerial. Raven Narratives and the Anthropocene’ (2015) 6 Environment and Society: Advances in Research 66, 67. 75 Ghosh (n 64) 30–1; Latour (n 26) 67–8. 76 Robin Kundis Craig, ‘Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking’ (2016) 33(3) Pace Environmental Law Journal 351. See also Benson and Craig (n 73) 56.

12  Narrating climate change meteorology and in popular discourse on weather events, as hurricane nomenclature illustrates. In fact, United States hurricanes were named exclusively after women for some decades; this historical anomaly suggests a perceived correlation between wild, violent and powerful weather events and female behaviour. By way of contrast, the trickster, who operates outside civilised mores, is completely unpredictable and possesses a unique power that has nothing to do with traditional sources of authority, is generally perceived as male.77 Although the personification of climate change creates a framing around climate change phenomena that, arguably, is a reducible framing, the trickster is ultimately unknowable and the trickster framing is, therefore, an elastic and fluid one. In thinking of climate change as trickster, that slippery outlier who in his multiple manifestations eludes all attempts to pin him down, we are acknowledging the ungraspability of climate change. Human activity has contributed and continues to contribute to climate change but climate change is beyond our capacity to regulate or control or fully predict, given the interplay of so many human and nonhuman agents in its ongoing impacts. It constitutes one of Bruno Latour’s hybrids, both local and global in its manifestations.78 Timothy Morton describes climate change, which he prefers to call global warming,79 as a ‘hyperobject’: something ‘massively distributed in time and space relative to humans’.80 Contemporary social and political developments also reflect the governing principles of chaos and disruption that characterise climate change phenomena. One of the most potent and ominous signs that we have entered the Age of the Trickster is the meteoric rise to power of United States President Donald Trump. In general, the trickster has always functioned as subversive outsider, conducting himself in ways that diverge from and are frequently in conflict with prevailing codes of behaviour. President Trump’s wildly erratic, clumsy and misguided antics on the American and world stages are reminiscent of the trickster. There is a widespread concern that he is actively undermining the Presidential office with an almost wilful glee. His capacity to manage and incorporate contradictory positions, to ‘[contain] … difficult oppositions within his person in a manner that appeals to those struggling with those oppositions’, also evokes the trickster.81 Corporate tricksters play a central role in the Anthropocene. Anna Grear identifies corporations as the ‘apotheosis of [the] anthropos’82 assumed in the terminology of the Anthropocene. Sally Wheeler agrees that the corporation 77 Lewis Hyde, Trickster Makes This World. Mischief, Myth and Art (Farrar, Strauss and Giroux, 2010) 8. 78 Bruno Latour, We Have Never Been Modern, tr Catherine Porter (Harvester Wheatsheaf, 1993) 50. 79 Morton (above n 15) 8–9. 80 Ibid 1. 81 Keir Martin and Jakob Krause-Jensen, ‘Trump. Transacting Trickster’ (2017) 33(3) Anthropology Today 5, 6. 82 Anna Grear, ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric” Law and Anthropocene “Humanity”’ (2015) 26 Law Critique 225, 237 (emphasis in original).

Narrating climate change  13 is ‘one of the key creations of the Anthropocene’,83 although she qualifies this statement by pointing out that it is but one player, albeit ‘front and centre’, in the assemblages of many players which constitute the Anthropocence.84 Laura Ogden and her co-authors describe multinational corporations as amongst the ‘global assemblages’ that ‘transcend the boundaries and power of the state’ and can be seen as ‘new, transnational forms of socioecological governance’.85 The modern mega-corporation, with its greed, duplicity and propensity to play outside and with rules, both legal and moral, represents the quintessential trickster. Thornton and Thornton’s description of the Raven Trickster as ‘rogue demi-urge, pushing planetary boundaries incautiously according to his selfish, short-term interests’,86 is particularly apposite in the context of corporate ­behaviour. Furthermore, the shape-shifting characteristics of corporations bent on avoiding liability for their environmental misdeeds suggest the trickster. I consider strategies adopted by climate litigants and climate activists to contend with corporate tricksters in Chapters 2 and 6. Corporations are increasingly targeted in climate litigation and yet what impact does such litigation have, in light of the corporate talent for shape shifting, their considerable resources and the myriad ways in which blame and monetary damages can be redistributed? Climate activists who draw on trickster manoeuvres by inverting and playing with existing rules, adopting false identities, and brazenly playing with the ­profit-making rules of the marketplace may have more success in holding corporate tricksters to account.

Tricksters and dark play The trope of the trickster gestures towards the complex, unpredictable and synergistic energies at work in climate change but also, as Craig suggests, plays a key role in wild time.87 The trickster necessarily operates outside the world of reason and rules; he prevails instead over a world of unpredictable and wild play. This sort of play is not necessarily benign and encompasses dark play, a phenomenon with an assortment of fluid characteristics tentatively identified by performance studies theorist Richard Schechner.

83 Sally Wheeler, ‘The Corporation and the Anthropocene’ in Louis J Kotze (ed), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 289, 289. 84 Ibid 293. 85 Laura Ogden et al, ‘Global Assemblages, Resilience and Earth Stewardship in the Anthropocene’ (2013) 11(7) Frontiers in Ecology and the Environment 341, 342. 86 Thornton and Thornton (n 74) 75. 87 She writes that ‘[v]iewing climate change as the 21st-century trickster would not only help ­A mericans to contextualize the many complexities of climate change but would also help to create a cultural context that can promote resilience thinking and the unavoidable necessity of transformation, both social and ecological’: Craig (n 76) 354.

14  Narrating climate change According to Schechner, dark play ‘occurs when contradictory realities coexist, each seemingly capable of canceling the other out’.88 Given his affinity for paradox, the trickster must necessarily excel at dark play. The recklessness of dark play and the player’s heedless disregard for rules and consequences also evoke the antics of the trickster; dark play ‘subverts order, dissolves frames, breaks its own rules, so that the playing itself is in danger of being destroyed’.89 The mischief making tendencies of the trickster can be fully realised in dark play. The ‘inversions [of dark play] are not declared or resolved; its end is not integration but disruption, deceit, excess, and gratification’.90 In Chapter 6, I look at the use of dark play by climate activists; through this trickster device they have, inter alia, exposed the contemporary capitalist marketplace as yet another play frame, albeit one with ecologically dangerous ramifications, and highlighted its vulnerabilities. I also consider the far-ranging implications of arguments of necessity raised by climate activists charged with rule-breaking. Climate change as trickster itself operates in the realm of dark play, outside existing rules. I explore the potential implications for law’s empire in this chapter. With his affinity for dark play there is, clearly, a dark side to the trickster. This caused Carl Jung to characterise the trickster as ‘the shadow’ 91 and to place this mythological figure on a lowly, primitive and inferior rung in the psychic hierarchy. The trickster, according to Jung, occupies ‘a world of primordial ­darkness’.92 However, Jung also recognised the enduring nature and appeal of the trickster, and the paradoxical side to the trickster that in part explains this. He acknowledged that: the shadow, although by definition a negative figure, sometimes has certain clearly discernible traits and associations which point to a quite different background. It is as though he were hiding meaningful contents under an unprepossessing exterior.93 In more recent times, writers from a diverse set of disciplines have contemplated the complex function of the trickster in human society and sought to unmask his unlikely redemptive qualities in an ecological framework. Donna Haraway has speculated that tricksters can covert ‘a stacked deck into a potent set of wild cards for refiguring possible worlds’94 and has proposed that we ‘[revision] the world as

88 Richard Schechner, The Future of Ritual: Writings on Culture and Performance (Routledge, 1993) 36. 89 Ibid. 90 Ibid. 91 CJ Jung, Four Archetypes. Volume 9, Part 1 of the Collected Works of C J Jung, tr RFC Hull (Princeton University Press, 1969) 142. 92 Ibid 146. 93 Ibid 150. 94 Donna J Haraway, Simians, Cyborgs and Women. The Reinvention of Nature (Routledge, 1991) 4.

Narrating climate change  15 coding trickster with whom we must learn to converse’.95 In more recent work, in which she explores stories of ‘multispecies players … redo[ing] ways of living and dying’,96 the trickster, represented by Coyote, is still very much present, ‘scatter[ing] the dust of disorder’ in ‘noninnocent world-making performances’.97 In his well-known study of literary ecology, Joseph W Meeker explored the strategic, amoral adaptability of that trickster literary figure, the picaro.98 Meeker contended that trickster attributes encapsulated in the ‘comic way’ and in play 99 have evolutionary significance, stating that ‘[e]volution proceeds as an unscrupulous, opportunistic comedy’.100 The ‘picaresque answers’ to the question of how to survive in a time of disruption are to ‘[a]dapt to circumstances and take evasive action’.101 Timothy Morton also emphasises the trickster’s talents for seizing opportunities and avoiding rules and structures, arguing that ‘[t]he Trickster is a being that exploits gaps in the world’.102 In telling the law-story of Gurukmun the greedy frog, Irene Watson of the Tanganekald, Meintangk–Bunganditj First Nations Peoples makes clear the importance of the trickster and, indeed, the ‘comic way’ in First Nations law, which she has described as raw law: ‘a natural system of obligations and benefits, flowing from an Aboriginal ontology’.103 Gurukmun drank the water in every river, lake, waterhole and ocean. The other animals attempted to negotiate with him to release the water but to no avail. They then decided to make him laugh. After a number of attempts, the efforts of Nabunum the eel to dance like the brolga, until he tied himself up in knots, succeeded in producing ‘great big laughs’ from the greedy frog and all the water gushed out of his mouth.104 Watson has compared Gurukman to the Western Mining Corporation, which is draining underground artesian water supplies in South Australia for their mining operations. She has pointed out that the animals’ strategy in making Gurukmun laugh is ‘worth considering’ in dealing with corporate greed.105 The unpredictable, wily and inventive trickster, a potent force in making (and unmaking) worlds,106 should not be ignored in these times of ‘great mass death  95  Donna Haraway, ‘Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’ (1988) 14(3) Feminist Studies 575, 596.  96 Donna J Haraway, Staying with the Trouble. Making Kin in the Chthulucene (Duke University Press, 2016) 10.  97 Ibid 13.  98 Joseph W Meeker, The Comedy of Survival. Literary Ecology and a Play Ethic (University of ­A rizona Press, 3rd ed, 1997) 59–70.  99 Ibid 17. 100 Ibid 20. 101 Ibid 61. 102 Timothy Morton, ‘The Oedipal Logic of Ecological Awareness’ (2012) 1 Environmental Humanities 7, 13. 103 Watson (n 32) 1. 104 Irene Watson, ‘Indigenous Peoples’ Law-Ways: Survival against the Colonial State’ (1997) 8 Australian Feminist Law Journal 39, 43–4. 105 Ibid 45. 106 See Hyde (n 77) 8.

16  Narrating climate change and extinctions; of onrushing disasters’.107 Wild time, arguably, heralds the final, long overdue demise of the tragic hero who suffers for his ideals,108 and the ascendancy of the amoral trickster. Tricksters spurn feats of heroism and sacrifice. They are adaptable, flexible, resilient and unpredictable, living ‘in risky play with their surrounding social order’.109 The trickster, as Thomas F Thornton and Yadvinder Malhi have argued, ‘shows us how to live and how not to live in [the] multifaceted and unpredictable world’ of the Anthropocene.110 Benson and Craig agree with this assessment, writing that a ‘trickster cultural narrative’ will improve humanity’s chances ‘for productively coping with the Anthropocene’.111 As I posit in Chapter 5, tricksters are key inhabitants of wild time in climate fiction.

Climate narratives: limitations and possibilities As already foreshadowed, climate change has assumed its own ‘narrative turn’ in litigation, fiction and activism. Historian Tom Griffiths calls climate change ‘the colossal story of our time’;112 this view is shared by journalist David ­Wallace-Wells,113 whose graphic account of the impacts of climate change114 published in New York magazine in 2017 created a furore in some circles.115 The climate change story is being told in many ways, by many narrators, across a diverse range of disciplines. This demonstrates the ‘epistemic propensity towards supra-disciplinarity’ that Andreas Philippopoulos-Mihalopoulos has described as ‘the main grammatical invitation of the Anthropocene’.116

07 Haraway (n 96) 35. 1 108 Ursula Le Guin describes stories about the Hero as ‘killer’ stories, of which she wants no part: Ursula Le Guin, Dancing on the Edge of the World. Thoughts on Words, Women and Places (Harper and Row, 1989) 168–9. See also Meeker (n 98), in which he traces the decline of the tragic literary tradition and the strategic and evolutionary significance of comedy: ‘[a]s the tragic hero suffers or dies for ideals, the comic hero survives without them’: at 15. 109 Meeker (n 98) 59. 110 Thomas F Thornton and Yadvinder Malhi, ‘The Trickster in the Anthropocene’ (2016) 3 The Anthropocene Review 201, 204. See also Thornton and Thornton (n 74), who have ‘suggest[ed] that the Raven-trickster frame … may present a more compelling narrative for framing the novel and unruly futures we face in the future Anthropocene’: at 69. 111 Benson and Craig (n 73) 56. 112 Tom Griffiths, ‘Weather and Mind Games: Why Can’t We Talk about Climate Change’ (2013) 41 Griffith Review 246, 255. 113 David Wallace-Wells has described the climate change story as ‘quite literally the greatest story ever told’: David Wallace-Wells, An Uninhabitable Earth: A Story of the Future (Allen Lane, 2019) 32. 114 David Wallace-Wells, ‘The Uninhabitable Earth. Famine, Economic Collapse, A Sun That Cooks Us: What Climate Change Could Wreak Sooner Than You Think’ (9 July 2017) New York . 115 See Jem Blundell, ‘Deep Adaptation: A Map for Navigating Climate Tragedy’ (Occasional Paper 2, IFLAS, 27 July 2018) . 116 Andreas Philippopoulos-Mihalopoulos, ‘Critical Environmental Law in the Anthropocene’ in Kotze (ed) (n 83) 117, 121.

Narrating climate change  17 Nevertheless, narrative has some fundamental flaws as a tool with which to confront climate change and the potentially unimaginable dimensions of wild time. There are dangers in attempting to create a coherent storyline from the unknown chaos of wild time, in charting the future through modelling and predictions, in believing that embodied resistance can generate constructive outcomes or that legal doctrines which evolved in the Holocene can somehow be adapted or even turned inside out to transfigure a world in which global capitalism is the dominant force. Anti-narrative, which contains ‘obvious, sustained and irreconcilable contradictions at more than one major point’,117 may be a more appropriate way to approach the subject matter. Language itself has limitations. Bill McKibben has pointed out that ‘[w]e lack the vocabulary and the metaphors we need’ for the new world to come.118 In Dyschronia, for example, the inexplicable retreat of the sea and the consequent beaching of an untold number of sea creatures is an appalling event with no known antecedents. The event is described through the eyes of the townsfolk, who ask poignantly: ‘How do we see what we can’t imagine?’119 The deficiencies of language are apparent in their reference to ‘the field of there-is-no-nice-way-to-put-this’.120 Narrators can struggle to find appropriate language to reference and somehow contain the chaos of wild time. As novelist James Bradley has observed, writers and artists must find ‘new imaginative and lexical vocabularies’.121 Some narrators are resorting to neologisms, such as Elizabeth Rush’s ‘endsickness’: ‘a ­physical response to living in a world that is moving in unusual ways, toward what I imagine as a kind of event horizon’.122 Glenn Albrecht’s ‘solastalgia’, which he defines as ‘an emplaced or existential melancholia experienced with the negative transformation (desolation) of a loved home environment’,123 was incorporated into the legal narrative in the Warkworth mine case.124 Others draw analogies, only to find in some instances that their choice of metaphor is considered too provocative. James Hansen’s attempt to convey the magnitude of future suffering by drawing a comparison with the genocide of the Holocaust125 drew

17 Brian Richardson, ‘Anti-narrative’ in Herman, John and Ryan (eds) (n 11) 24, 24. 1 118 Bill McKibben, Eaarth: Making Life on a Tough New Planet (Black Inc Books, 2010) 102. 119 Mills (n 48) 12. 120 Ibid. 121 James Bradley, ‘Writing on the Precipice’ (21 February 2017) Sydney Review of Books . 122 Elizabeth Rush, Rising. Dispatches from the New American Shore (Milkweed, 2018) 66. 123 Glenn Albrecht, ‘The Age of Solastalgia’, The Conversation (online, 7 August 2012) . 124 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LGER A 347. I discuss this case in Chapter 2. 125 See James Randerson, ‘Comparing Climate Change to the Holocaust’, The Guardian (online, 1 December 2007) . Historian Timothy Snyder has also drawn comparisons between the Holocaust and the looming catastrophe of climate change: Timothy Snyder, ‘Hitler’s World May

18  Narrating climate change down a storm of criticism. Atrocities such as those experienced in the Holocaust and other past genocidal events are not easily described.126 Future catastrophies and atrocities at an unprecedented planetary scale are even more difficult to encapsulate in words and images. The capacity of different narrators to interpret and explore the characteristics of wild time depends in part upon disciplinary conventions. In science, law, fiction and activism, we find different approaches to future telling. Furthermore, in the climate change area, there exists a significant number of unreliable narrators, both in the sense of factual unreliability and, more significantly, normative unreliability.127 Unreliable narrators undermine the usefulness of narrative as both catalyst and adaptive mechanism. In the following sections, I address in more detail the scope and limitations of various forms of climate narrative.

Scientific narratives Scientific narratives of climate change, with their reliance on modelling, contain predictions of what is to come. However, scientists characteristically exercise reticence and restraint in constructing such narratives. Renowned climate change scientist James Hansen has explained that ‘[y]ou’re rewarded in science for not stepping out too rapidly’.128 Restraint has been described as ‘a community norm in science’.129 The disciplinary inclination towards reticence and cautious understatement has influenced the reporting activities of the Intergovernmental Panel on Climate Change (IPCC),130 the global organisation which was established in 1988 and which involves an ongoing collaboration between an extensive community of eminent scientists from every nation. The IPCC’s Reports are released Not Be So Far Away’, The Guardian (online, 16 September 2015) . 126 See, for instance, the conversation between two animals in Yann Martel, Beatrice and Virgil (Text Publishing, 2010), in which the author addresses the Holocaust by analogy, as they discuss possible names for mass extermination. They reject ‘the Events’, ‘the Unthinkable’, ‘the Unimaginable’, ‘the Unnameable’, ‘the Deluge’, ‘the Catastrophe’, ‘the Searing’, ‘the Terror’, ‘the Tohu-bohu’ and ‘the Horror’, before finally settling upon ‘the Horrors’ as a term which encompasses most of the other suggestions: at 135–6. Martel has said that he was trying ‘to find a way … to use words to express the unspeakable’ in writing this novel: Malcom Knox, ‘Interview. Yann Martel’, Spectrum, The Sydney Morning Herald (Sydney, 10–11 April 2010) 30. 127 Narrators who violate accepted moral and ethical norms are referred to as unreliable narrators, a term which first appeared in Wayne C Booth, Rhetoric of Fiction (University of Chicago Press, 1961); see Ansgar Nunning ‘Reliability’ in Herman, John and Ryan (eds) (n 11) 495, 496. 128 Quoted in David Wallace-Wells, ‘“The Planet Could Become Ungovernable”: Climate Scientist James Hansen on Obama’s Environmental Record, Scientific Reticence, and His Climate Lawsuit Against the Federal Government’ (12 July 2017) New York . 129 Keynyn Brysse et al, ‘Climate Change Prediction: Erring on the Side of Least Drama?’ (2013) 23(1) Global Environmental Change 327, 328. 130 See James Hansen, ‘Scientific Reticence and Sea Level Rise’ (2007) 2(2) Environmental Research Letters 1, 5.

Narrating climate change  19 every five to eight years and these reports, as David Spratt and Ian Dunlop have noted, ‘play a large part in the public framing of the climate narrative’.131 Spratt and Dunlop, amongst others, are highly critical of the understatement of risk that characterises IPCC processes and reports and argue that the prevailing practice of scientific reticence ‘is extremely dangerous given the fat-tail risks of climate change’.132 One cause for concern, for instance, is that the IPCC’s preferred system of modelling does not factor in ‘discontinuities and abrupt possible changes in the real system in all its greater complexity’133 and consequently the projections ‘significantly [understate] climate warming and possible abrupt, unpredictable future changes’.134 After looking at the predictions of climate scientists, Naomi Oreskes and colleagues concluded that they ‘[erred] on the side of least drama’135 and that this inclination can ‘prevent the full recognition, articulation, and acknowledgment of dramatic natural phenomena that may, in fact, be occurring’.136 The operational and disciplinary constraints on the IPCC global network of scientists are considerable. In its Assessment Reports, the group attempts to articulate, in as precise language as possible, the causes of climate change and its multiple future impacts. The writers exercise extreme caution in deploying phrases with accepted meanings in what is described as a ‘calibrated language’.137 The likelihood of certainty of scientific findings is expressed in language linked to percentage possibilities.138 The key documents in each cycle of assessments, in terms of influencing government policy and public opinion, are the Summaries for Policymakers, and there is exquisite care taken in the framing of these summaries, with complete consensus required in relation to every word. It is unsurprising, therefore, that critics highlight the dangers in the consequent understatement of risk.139 The IPCC, notwithstanding the constraints of calibrated language and the scientific predilection for cautious understatement, has consistently advocated for action on climate change. In particular, in the ‘landmark’140 IPCC Special Report released in October 2018,141 the authors have explained that ‘deep 131 David Spratt and Ian Dunlop, What Lies Beneath. The Understatement of Existential Climate Risk (Breakthrough, 2018) 5. 132 Ibid. 133 Brian Wynne, ‘Strange Weather, Again: Climate Science as Political Art’ (2010) 27(2–3) Theory Culture Society 289, 296. 134 Ibid 297. 135 Brysse et al (n 129) 328. 136 Ibid 335. 137 MD Mastrandrea et al, Guidance Note for Lead Authors of the IPCC Fifth Assessment Report on Consistent Treatment of Uncertainties (Intergovernmental Panel on Climate Change, 2010) 3. 138 Ibid. 139 Spratt and Dunlop (n 131). 140 Jonathon Watts, ‘Global Warming Must Not Exceed 1.5C, Warns Landmark UN Report’, The Guardian (online, 8 October 2018) . 141 Myles R Allen et al, Global Warming of 1.5°C, an IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-industrial Levels and Related Global Greenhouse Gas Emission

20  Narrating climate change emission reductions in all sectors’142 and ‘rapid and far-reaching transitions in energy, land, urban and infrastructure (including transport and buildings), and industrial systems’143 are required as a matter of urgency to keep global warming to a 1.5 rather than 2 degree rise above pre-industrial levels. This report, with its stark statistics on the projected impacts of even this amount of global warming, generated shock waves around the world. Christiana Figueres, a leading figure in international climate politics, has pointed out there is ‘nothing opaque’ about the data in this report, which sets out ‘visceral versions of a future that no ­policy-maker could wish to usher in or be responsible for’.144 On the other hand, an alternative collection of unreliable scientific and pseudo-scientific narratives operates to stymie such attempts, allay public concerns and generate complacency.145 IPCC narratives, and their authors, have been subjected to ongoing, systematic, well-funded attacks.146 There is even a ­Nongovernmental International Panel on Climate Change, funded by the Heartland Institute, which contests the findings of the IPCC in a series of reports described by one commentator as ‘zombie science’.147 These attempts have both swayed and distracted a credulous public and contributed to a dangerous delay in the development of effective strategies to curb greenhouse gas emissions.

Corporate narratives The narratives propounded by climate change sceptics and their supporters combine bland assurances with largely discredited science. Such narratives play an important role in climate politics in light of their insidious influence on governments and public opinion. There are powerful corporate interests at work in their creation and promulgation.148

Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Intergovernmental Panel on Climate Change, 2018) (‘IPCC Special Report’). 142 Ibid, Summary for Policymakers, 21. 143 Ibid. 144 Fiona Harvey and Jonathon Watts, ‘World Leaders Told They Must Act over Climate Change “Cliff-Edge”’, The Guardian (online, 8 October 2018) . 145 See, for instance, Ian Plimer, Heaven and Earth: Global Warming: The Missing Science (Connor Court, 2009) in which Plimer, a mining geologist, dismissed the views of the vast majority of scientists who have concluded that human-caused global warming is occurring at an alarming rate and maintained that human-caused carbon dioxide emissions, and human activities generally, have no effect on Earth’s climate. 146 See Michael E Mann, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines (Columbia University Press, 2012). 147 Michael JI Brown, ‘Adversaries, Zombies and NIPCC Climate Pseudoscience’, The Conversation (online, 26 September 2013) . 148 See Naomi Oreskes and Erik M Conway, Merchants of Doubt. How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (Bloomsbury Press, 2010).

Narrating climate change  21 In their analysis of the documents published by ExxonMobil pertaining to climate change in the period from 1977 to 2014, Geoffrey Supran and Naomi Oreskes concluded that the company’s advertorials fostered ‘a narrative’ of doubt and uncertainty ‘inconsistent with the views of most climate scientists, including ExxonMobil’s own’.149 In addition to promoting unreliable scientific narratives, corporations also create their own unreliable climate narratives or ‘myths’ of corporate environmentalism.150 When these myths are discredited or proved false, as in the Volkswagen ‘Dieselgate’ scandal,151 there can be both reputational damage and ‘an explosion of litigation’.152 However, many corporate myths remain intact, despite this ‘wilful obfuscation’,153 and such narratives create and maintain corporate legitimacy.154 We find a point of convergence between scientific and legal narratives in the contentious area of unreliable climate narrators. The issue of corporate endorsement and solicitation of unreliable climate narratives was first raised in a courtroom in the unsuccessful 2008 case155 brought by the imperiled Inupiat Native Village of Kivalina and City of Kivalina against ExxonMobil and various fossil fuel and power companies. The novel aspect of the case was that the people of Kivalina were seeking damages from corporations partly on the basis of their active role in promoting such narratives. The people of Kivalina brought their action in public nuisance but also in the tort of civil conspiracy, alleging that the defendants had participated in a ‘long campaign … to mislead the public about the science of global warming’.156 They asserted, inter alia, that power, coal and oil industries had used front groups and adopted the ‘Orwellian use of the terms “junk science” and “sound science”’ in order ‘to subvert the global warming debate’.157 They argued that ExxonMobil played a leadership role in this ‘multi-faceted attack on global warming’, by ‘exploiting science’ and ‘fostering false science’.158

149 Geoffrey Supran and Naomi Oreskes, ‘Assessing ExxonMobil’s Climate Change Communications (1977–2014)’ (2017) 12(8) Environmental Research Letters 1, 15. 150 Christopher Wright and Daniel Nyberg, Climate Change, Capitalism and Corporations. Practices of Creative Self-Destruction (Cambridge University Press, 2015). 151 In 2015, it emerged that the company’s claims about the low emissions from its ‘clean’ ­d iesel engines were false and that an illegal software ‘defeat’ device was used to perpetrate this falsehood. 152 Geoffrey Smith and Roger Parloff, ‘Hoaxwagen’ (7 March 2018) Fortune . 153 Wright and Nyborg (n 150) 29. 154 Ibid 27. 155 The United States District Court in the Northern District of California and the United States Court of Appeals for the Ninth Circuit dismissed the action in public nuisance without considering the claim of civil conspiracy: Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation, 663 F Supp 2d 863, 869 (N D Cal 2009), affirmed 696 F 3d 849 (9th Cir 2012). An attempt to appeal to the United States Supreme Court was unsuccessful. 156 Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation (DC ND Cal, No C 08-1138 SBA), Complaint for Damages, 26 February 2008 [189]. 157 Ibid [193]. 158 Ibid [234].

22  Narrating climate change Since this unsuccessful attempt to seek legal remedies for damages sustained as a consequence of unreliable corporate climate change narratives, other legal avenues pertaining to such narratives have been explored. In November 2015, then New York Attorney General Eric Schneiderman launched an investigation into possible deceptive conduct directed towards investors and the public on the part of ExxonMobil. Peabody Energy, the largest coal producer in the United States, has been subject to a similar investigation.159 In March 2016, 17 United States Attorney Generals announced their intention at a joint press conference to take action against possible breaches of consumer protection and investor protection legislation on the part of fossil fuel corporations.160 Schneiderman’s successor commenced a lawsuit against ExxonMobil in 2018, alleging that the company had defrauded its shareholders by failing to provide realistic assessments of economic risks posed by climate change regulation.161 In response to investigative steps taken by the Massachusetts and later New York Attorney Generals, ExxonMobil retaliated by mounting a legal action in Texas. The matter was eventually transferred to the New York District Court where, in March 2018, Judge Caprioni dismissed ExxonMobil’s argument that the investigations violated the company’s constitutional rights as ‘implausible’, and its effort to prevent ‘duly authorized investigations’ as ‘extraordinary’.162 The corporation appealed this decision in the Second Circuit Court of Appeals. It also unsuccessfully challenged the issue of the civil investigative demand by the Massachusetts Attorney General in the Massachusetts Superior Court, on appeal in the Massachusetts Supreme Judicial Court,163 and subsequently on appeal to the United States Supreme Court.164 Further legal action was taken by ExxonMobil in Texas against the ­Attorney General of the United States Virgin Islands, with the corporation seeking a declaration that a subpoena issued under the territory’s Criminally Influenced and

159 Justin Gillis and Clifford Krauss, ‘Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General’, The New York Times (online, 5 November 2015) . 160 David Hasemyer and Sabrina Shankman, ‘Climate Fraud Investigation of Exxon Draws Attention of 17 Attorneys General’, InsideClimateNews (online, 30 March 2016) . 161 John Schwartz, ‘New York Sues Exxon Mobil, Saying It Deceived Shareholders on Climate Change’, The New York Times (online, 24 October 2018) . 162 Exxon Mobil Corporation v Schneiderman (DC NY SD, No 17-CV-2301 (VEC)), Opinion and Order, 29 March 2018 (Caproni J); John Schwartz, ‘Court Dismisses Exxon’s Effort to Block Climate Investigation’, The New York Times (online, 29 March 2018) . 163 Exxon Mobil Corporation v Attorney General (Mass SJC, No SJC-12376, 13 April 2018) slip op. 164 Karen Savage, ‘Supreme Court Refuses Exxon Appeal, Allows Mass. Climate Probe to Proceed’, Climate Liability News (online, 7 January 2019) .

Narrating climate change  23 Corrupt Organizations Act was unenforceable. In June 2016, it agreed to discontinue its lawsuit on the basis that the subpoena was withdrawn.165 In March 2019, the European Parliament held a hearing into the unreliable climate narratives promulgated by the fossil fuel industry, and in particular by ExxonMobil, a hearing which the corporation refused to attend.166 Furthermore, corporate concealment of the known climate risks associated with their product is one of the key issues in the lawsuits launched against major corporate emitters by a number of United States public authorities in 2017 and 2018. These lawsuits are considered in Chapter 2.

Narratives of climate fiction In climate fiction, unreliable narrators are not necessarily commonplace but they are certainly less controversial. Novelists and filmmakers can delineate the future consequences of climate disruption without any disciplinary requirements for caution, understatement or even factual accuracy, and do so generally without critical or legal backlash. Imaginative scenarios abound in literature and film and even magical realism is condoned,167 although not without some critical reservations.168 It is ironic, therefore, that future telling characters, seers and time travellers tend to be marginalised, disparaged and discredited in this genre. I elaborate upon this phenomenon in Chapter 5. In creating narratives of climate change and wild time, authors and screenwriters thus enjoy a freedom unknown to scientists even when they draw on scientific narratives for their inspiration. Although fictitious narratives of wild time lack the authority and, generally, the accuracy of scientific narratives of climate change, they can play a powerful role in influencing public opinion, inspiring ­ ictitious and and empowering activists and even in shaping government policy. F activist narratives converge as such visions ignite activist movements and, as I describe in Chapter 6, climate activists utilise performance and text as well as various forms of embodied resistance in order to convey their messages of urgency and desperation. As one writer has put it, ‘visions of civilization’s end’ can produce ‘something over and above anxiety – something escapes, and such excesses might be mined for their transformative kind of feeling’.169 Renowned and influential ­a nti-nuclear activist Helen Caldicott has mentioned in interviews that her life-

165 Exxon Mobil Corporation v Walker (DC Tex ND, No 4:16-cv-00364-K), Joint Stipulation of Dismissal, 29 June 2016. 166 Karen Savage, ‘EU Considers Banning Exxon Lobbying Because of Company’s Climate Deception’, Climate Liability News (online, 21 March 2019) . 167 For instance, Sally Abbott incorporates magical realism in Closing Down (Hachette, 2017). 168 Ghosh (n 64) 27. 169 Franklin Ginn, ‘When Horses Won’t Eat. Apocalypse and the Anthropocene’ (2015) 105(2) Annals of the Association of American Geographers 351, 352.

24  Narrating climate change long commitment to anti-nuclear weapons campaigning had its origins in Nevil Shute’s fictitious depiction of a terrifying version of wild time, the aftermath of an unintentional nuclear war, in his novel On The Beach.170 Writers interested in the intersection between science fiction, environmental activism and environmental discourse have pointed out that biologist Rachel Carson’s highly influential 1962 book Silent Spring, while not itself a work of fiction, opened with a piece of speculative fiction, the depiction of a terrifying dystopian scenario.171 In Chapters 5 and 7, I return to this important question of the role played by fictitious narratives, and narratives generally, as a catalyst for climate action.

Narratives of law Legal narratives are more limited in their capacity to outline and explore the dimensions of climate change and wild time. Environmental legislation and international environmental agreements frequently reference the future but Benjamin Richardson argues that the ‘avowed future impetus’ is deceptive, with the focus on protecting present lifestyles and existing rights in the application and enforcement of laws and agreements.172 Furthermore, futuristic speculation or prediction does not usually form part of judging, a backward-looking, precedent-driven exercise in which practitioners pointedly eschew policy decision-making. Nevertheless, judges in climate litigation are frequently required to evaluate scientific predictions and their accuracy, and to decide whether such predictions can and should be accommodated within existing legal frameworks. In more recent climate litigation, judges have tended to accept the science of climate change as a given but must still decide on the legal significance of scientific evidence pertaining to causality and the contribution of specific projects and specific emitters to climate change. In Chapter 2, I elaborate upon some of the different legal narratives of climate change unfolding in the burgeoning area of climate litigation. In Chapter 3, I explore a particular narrative, which I have termed the tale of the children, at work across the three areas of law, fiction and activism. In Chapter 4, I look at human and nonhuman rights in our current and future era of climate disruption and the ongoing legal and extra-legal developments in this shifting and evolving narrative of rights.

Dangerous narratives; dangers in narration Australian journalist and writer Jo Chandler, in investigating the wide-ranging, even heroic efforts of climate scientists, sought to find out ‘how they endure 1 70 Dan Drollette, Jr, ‘A Conversation with Helen Caldicott’ (2018) 74(3) Bulletin of the Atomic Scientists 177, 178–9. 171 Shelley Streeby, Imagining the Future of Climate Change: World Making Through Science Fiction and Activism (University of California Press, 2017) 16; Eric C Otto, Green Speculations. Science Fiction and Transformative Environmentalism (The Ohio State University Press, 2012) 8–9. 172 Benjamin J Richardson, ‘It is about Time: Understanding the Textures of Time in Australian Environmental Law’ (2018) 35(3) Environmental and Planning Law Journal 299, 305.

Narrating climate change  25 their knowledge, if it anticipates terrible danger. If their grasp of science brings an amorphous future into sharp, cataclysmic focus, then how do they pursue ordinary lives, imagine a future, grow families?’173 We are bombarded with climate change narratives in this second decade of the twenty-first century. For those of us living in the Global North, climate change phenomena appear continuously in print and on screen, if not yet in our lived experiences. The same questions, therefore, can be asked of us all. How do we live through these strange and uncanny times with the knowledge that things are bad, and the worst is yet to come? One way is to derive false comfort from unreliable narratives. Narratives can mislead, falsely reassure and befuddle. One commonplace narrative is that we can rely on market forces and technofixes to solve the climate change problem. Suggestions that there is no problem are the most egregious examples of unreliable climate change narratives. President Trump is notorious for tweets in which he presents climate change as an alarmist hoax.174 He dismissed the findings in his government’s 2018 National Climate Assessment Report about the projected impacts of climate change, stating that he did not believe them.175 In Australia, in an attempt to downplay the critical nature of the ‘super ­w icked’176 problem, some politicians have recast the climate change narrative as a joke. At the beginning of 2017, in an appalling piece of political theatre in the Australian Parliament, then treasurer Scott Morrison passed around a piece of coal as a demonstration of the innocuous nature of coalmines and coal-fired power stations.177 Images of laughing politicians holding the coal, at a time when much of Australia was experiencing an extreme heatwave, were widely circulated. Two years later, as catastrophic fires threatened Tasmania’s unique and ancient forests, novelist Richard Flanagan described ‘those faces contorted in weird mirth’ as ‘the image of our age: power laughing at us’.178 In 2015, the predicament facing small island nations in the Pacific was referenced in jest by then Australian Minister for Immigration, Peter Dutton. He was unintentionally recorded explaining the lack of punctuality on the part of

1 73 Jo Chandler, Feeling the Heat (Melbourne University Press, 2011) 20. 174 Kendra Pierre-Louis, ‘Why is the Cold Weather So Extreme if the Earth is Warming?’, The New York Times (online, 31 January 2019) . 175 Emily Holden, ‘Trump On Own Administration’s Climate Report: “I Don’t Believe It”’, The Guardian (online, 27 November 2018) . 176 Richard J Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ (2009) 94 Cornell Law Review 1153. 177 Elle Hunt, ‘Scott Morrison and Ray Hadley Laugh about Coal Prop: “Great Stunt”’, The Guardian (online, 13 February 2017) . 178 Richard Flanagan, ‘Tasmania is Burning. The Climate Disaster Future Has Arrived While Those in Power Laugh At Us’, The Guardian (online, 5 February 2019) .

26  Narrating climate change delegates to a Pacific Islands forum in Papua New Guinea with the comment: ‘[t]ime doesn’t mean anything when you’re, you know, about to have water lapping at your door’.179 In 2018, a similar disregard for the predicament of Pacific small island states was exhibited by Australian Environment Minister Melissa Price in a ‘light-hearted’ exchange with Anote Tong, former President of ­K iribati; she allegedly asserted that ‘for the Pacific, it’s always about the cash’.180 There are clear dangers in narratives that trivialise climate change, and in unreliable narration generally. The interplay between narrative and agency is also a cause for concern. We cannot hope to understand or comprehend climate change and its present and future impacts without narrative. However, narrative can and frequently does create a distancing effect. Narrative separates the narrator from the audience or reader as a functional matter but in addition, in telling a story, the narrator is also separate and distinct from the story. The distancing function of narrative can interrupt or prevent our necessary engagement with, and visceral experience of, climate change. As Bruno Latour puts it, it ‘would be thrilling’ to be able to ‘contemplate the tragedy [of climate change] from a distant shore that would have no history. But from now on there are no more spectators, because there is no shore that has not been mobilized in the drama of geohistory’.181 Every narrator is implicated as a character or multiple characters in the unfolding story of climate change; to borrow from Amitav Ghosh’s description of the multiple roles of Asia, we are all playing the parts of protagonist, victim and ‘blundering’ simpleton ‘stumbl[ing] upon the secret that is the key to the plot’.182 Telling the story of climate change responsibly requires us to acknowledge our own complicity. Timothy Morton describes the Oedipal moment183 in which ‘narrators find out that they are the tragic criminal’ as the onset of ecological awareness;184 he argues that such climate narratives resemble noir fiction, in which the detective is also the criminal.185 One pressing issue in this age of climate disruption is the extent to which existing narrative forms can encourage shared agency and responsibility, and overcome the distancing impact of this deceptive sense of spectatorship. Climate educator Blanche Verlie suggests that we view climate as entanglement

1 79 Quoted in Shalailah Medhora, ‘Peter Dutton Jokes With Tony Abbott about Rising Sea Levels in Pacific Nations’, The Guardian (online, 11 September 2015) . 180 Quoted in Paul Karp, ‘Melissa Price “Can’t Recall” Entire Conversation With Former ­K iribati Leader’, The Guardian (online, 18 October 2018) . 181 Latour (n 26) 40 (emphasis in original). 182 Ghosh (n 64) 92. 183 Morton (n 102) 16. 184 Timothy Morton, Dark Ecology. For a Logic of Future Co-Existence (Columbia University Press, 2016) 9. 185 Ibid.

Narrating climate change  27 and emphasises the ‘intra-action’ of ‘climate, climate knowledge and climate knowers’ by viewing climate as verb rather than noun: ‘we climate together’.186 In a similar vein, Andreas Philippopoulos-Mihalopoulos, interrogating the possibilities of critical environmental law,187 challenges the false dichotomy between ‘the observing spectator and the involved actor’.188 He points out that ‘the concept of “spectator” implies a privileged position that enjoys the critical distance of the spectacle of the world’.189 Instead, he identifies the philosophical imperative to embrace vulnerability.190 Once we acknowledge and accept our mutual and conjoined vulnerability, the artificial distance between spectator and actant, actant and the world, is erased;191 ‘[t]here is no screen to hide behind, no distance afforded by epistemology, no negotiating moments of discourse’.192 There are particular narrative devices which can be used to dissolve these artificial distinctions, most notably metalepsis which ‘fold[s] narrative levels back onto the present situation of the narrating act, uprooting the boundary between the world of the telling and that of the told’.193 The desire to convey climate change as shared reality is why award-winning Australian playwright Fleur ­K ilpatrick, citing as an example David Finnigan’s compelling play Kill Climate Deniers,194 suggests that breaking down the fourth wall, the invisible barrier between performers and audience, is an imperative in climate change theatre. She argues that ‘that safety, that pleasantness, that dark sleepy shadow the fourth wall casts over you is not only unnecessary today but dangerous’.195 As I describe in Chapter 6, we find in many forms of activist narrative an enacted and/or embodied expression of vulnerability, entanglement and both individual and shared responsibility and agency. On the other hand, acknowledgements of shared vulnerability and entanglement are markedly absent in legal and judicial climate change narratives, although concepts of responsibility and agency are explored. Expressions of vulnerability and entanglement are rare in the discourse of power. Here, the distinction between ‘the world of the telling’ and ‘that of the told’ is retained. In addition to the disciplinary and cultural constraints which shape particular narratives, the form, the identity of the narrator, the aesthetic dimension and the extent to which it is grounded in fact may all influence the extent to which a particular narrative connects us to climate change as lived experience.

186 Blanche Verlie, ‘Rethinking Climate Education: Climate as Entanglement’ (2017) 53(6) Educational Studies: A Journal of the American Educational Studies Association 560, 569. 187 Andreas Philippopoulos-Mihalopoulos, ‘Actors or Spectators? Vulnerability and Critical Environmental Law’ (2013) 3(5) Onati Socio-Legal Series 854. 188 Ibid 857. 189 Ibid 858. 190 Ibid. 191 Ibid 861. 192 Ibid 858. 193 John Pier, ‘Metalepsis’ in Herman, John and Ryan (eds) (n 11) 303, 303. 194 David Finnigan, Kill Climate Deniers (Griffin Theatre Company, 2018). 195 Fleur Kilpatrick, ‘Whale’ (Conference Paper, Narratives of Climate Change symposium, 6 July 2018).

28  Narrating climate change

A playful methodology In writing this book, I have found myself playing across disciplines and absorbing material from disparate and even unlikely sources. I use the word ‘playing’ deliberately; it resonates with Kate Rigby’s use of terminology in her book Dancing with Disaster.196 She has written that ‘one dimension of what it might mean to dance with disaster’ is: to develop modes of personal and collective comportment that are no longer premised on certitude – the confidence of possessing a sure guiding star – but that instead presuppose the unforeseeable. The kind of dance I have in mind here would therefore have to be largely improvisational.197 Andreas Philippopoulos-Mihalopoulos has written that the Anthropocene ‘requires a counter-intuitive pause’198 and I have felt, quite strongly if possibly irrationally, that the subject matter which I have chosen, or which arguably has chosen me, invites a light and flexible approach rather than a well-trodden, reasoned, research pathway. As Ursula Le Guin wrote some time ago, ‘in order to speculate safely on an inhabitable future, perhaps we would do well to find a rock crevice and go backward’.199 In this essay, Le Guin argued that pure and Euclidean reason is self-destructive in the context of utopia building and advocated ‘stay[ing] down here on the ground, walking in circles, proposing devious side trips and asking impertinent questions’.200 We need, Philippopoulos-­ Mihalopoulos argues, to open up our thinking to consider ‘irrelevant issues, planetary futures and inhuman bodies’.201 After all, logical and linear thought processes, disciplinary and cultural ­siloed thinking and a mutated, limited version of reason have brought us to this impasse, to this uncomfortable zone of the Anthropocene with its looming sense of man-made apocalypse. We are all victims of, and complicit in, what Ghosh calls ‘the great derangement’.202 I am improvising but what else can we do, faced with the unthinkable, the unprecedented, the ejection from what Bill McKibben has called the ‘sweetest of sweet spots’203 and the coming to terms with an increasingly inhospitable planet, an Eaarth.204 The grand prophet of climate change, James Hansen, who decided to read novels aloud to his wife every night for years so that he could better communicate

196 Kate Rigby, Dancing with Disaster. Environmental Histories, Narratives, and Ethics for Perilous Times (University of Virginia Press, 2015). 197 Ibid 20. 198 Philippopoulos-Mihalopoulos (n 116) 120. 199 Le Guin (n 108) 84. 200 Ibid 87. 201 Philippopoulos-Mihalopoulos (n 116) 120. 202 Ghosh (n 64). 203 McKibben (n 118) 3. 204 Ibid.

Narrating climate change  29 the findings of climate change science, 205 still reproaches himself for not making ‘this story clear enough for the public’.206 Yet, as Amitav Ghosh speculates, it may well be the case that ‘the currents of global warming [are] too wild to be navigated in the accustomed barques of narration’.207 Our existing narrative practices fall short in the face of what may come to be and how best to respond to it. We are endlessly inventive storytellers, but it seems that we have no capacity to create storytelling threads that will rescue us from this impasse. In this work, I am considering and evaluating existing narratives, ‘gleaning’ climate stories from numerous disciplines and cultural arenas like a thrifty God’s Gardener in Margaret Atwood’s Year of the Flood.208 In my search for common themes, I hope to find some indication that these ongoing attempts to articulate where we are and where we are headed are important and meaningful. Yet patterns, precedents and causal connections may prove to be elusive in this narrative maze. In forsaking disciplinary constraints for play, in improvising, in drawing unlikely connections and making comparisons between a wide array of texts, events and performances, in embracing detours and digressions and Le Guin’s ‘devious side trips’, I am adopting a version of the anarchistic methodology propounded by philosopher of science Paul Feyerabend. Feyerabend claimed to reject rule-bound process and scientific rationalism for a Dadaist approach which involved ‘taking things lightly’, being unmoved by ‘serious enterprise’, and remaining open to ‘joyful experiments’.209 The seemingly counter-­ intuitive view of dealing with the ‘deadly seriousness’210 of climate change indirectly and lightly, by drawing on the absurd and the playful, is one endorsed by Timothy Morton, who has argued that ‘[we] need a politics that includes what appears least political – laughter, the playful, even the silly’.211 Donna Haraway speculates that ‘serious worldliness and recuperation’ can occur in the realm of play. 212 This perspective resonates with the work of cultural anthropologist Victor Turner, who highlighted the importance of ‘a light, play-begotten pattern for living or social structuring’ in adapting to extreme social upheaval.213 Play not only undermines the status quo through ‘parody, satire, irony, slapstick’ but is also ‘mortgaged to the future in the form of a store of possible cultural and social structures’. It is, according to Turner, the ‘slippery Trickster’ who can enable the

205 James Hansen, Storms of My Grandchildren. The Truth About the Coming Climate Catastrophe and Our Last Chance to Save Humanity (Bloomsbury, 2009) 61. 206 Seth Borenstein, ‘James Hansen Wishes He Wasn’t So Right about Global Warming’, AP News (online, 18 June 2018) . 207 Ghosh (n 64) 8. 208 Atwood, The Year of the Flood (n 37). 209 Paul Feyerabend, Against Method. Outline of an Anarchistic Theory of Knowledge (Verso, 1975) 21. 210 Morton (n 184) 141. 211 Ibid 113. 212 Haraway (n 96) 23–4. 213 Victor Turner, The Anthropology of Performance (PAJ Publications, 1987) 170.

30  Narrating climate change transition of individuals and groups into such future realities.214 In line with my conviction that the consummately playful figure of the trickster plays a key role in the phenomenon of climate change, I would therefore describe a nonlinear, cross-disciplinary, playful approach as trickster methodology. The trickster, Donna Haraway has written, ‘suggests the situation we are in when we give up mastery but keep searching for fidelity, knowing all the while that we will be hoodwinked’.215 Tricksters delight in disrupting established orders and upsetting conventions and, in that sense, the Australian Knitting Nannas, a group of subversive, ­genre-bending grandmothers, are indeed tricksters. I consider the contribution of the Knitting Nannas to climate activism in Chapter 6, but they have also influenced my methodology and approach in writing this book. In the back of my mind, as I embark on disciplinary shape-shifting and interweave the disparate and diverse strands and narratives which inform my thinking, I see the clicking needles of the Knitting Nannas as they knit, sit together and bravely bear witness to the ravages of coal seam gas mining in some of the most pristine areas of Australia. Activist knitting and trickster climate scholarship both constitute part of what Donna Haraway has called ‘[p]laying games of string figures’: ‘giving and receiving patterns, dropping threads and failing but sometimes finding something that works, something consequential and maybe even beautiful, that wasn’t there before’.216 In this project, as with most narratives considered herein, the underlying aspiration is that we will, indeed, find something that works.

14 Ibid. 2 215 Haraway (n 95) 593–4. 216 Haraway (n 96) 10. Haraway herself uses the examples of a crocheted coral reef: at 76–81; and Najavo weaving: at 89–97; in ‘cultivat[ing] robust response-ability for powerful and threatened places and beings’ and demonstrating ‘sympoietic, multiplayer, multispecies thinking and action’: at 71.

2 Climate catastrophism and legal aporia

In this chapter, I analyse some of the many legal narratives of climate change currently argued in courtrooms around the world. There are major stumbling blocks to achieving effective outcomes through the presentation of such narratives, however they are structured and framed. The most fundamental of these is the incongruence between the pre-rational play of climate change as trickster and the rational play of rule-bound law.1 The chaotic, radical and unpredictable phenomenon of climate change cannot be neatly accommodated within existing legal systems, nor readily reconciled with ‘legal stability, coherence and knowability’.2 As Richard Lazarus has pointed out, climate change, in large part due to its diffuse spatial and temporal dimensions,3 is ‘environmental lawmaking’s worst nightmare’.4 Climate change constitutes a formidable challenge not only for regulators but also for judges. According to R Henry Weaver and Douglas Kysar, it ‘destabilizes the concept of law’.5 Elizabeth Fisher, Eloise Scotford and Emily Barritt similarly describe climate change as ‘legally disruptive’6 and uniquely so, given its ‘highly polycentric, uncertain, socio-politically charged and dynamic nature’.7 Thus, the challenges in ‘adjudicating the future whilst maintaining the integrity of a legal order’8 are manifold. 1 This distinction between rational and pre-rational play is discussed in Mihai I Spariosu, Dionysus Reborn. Play and the Aesthetic Dimension in Modern Philosophical and Scientific Discourse (­Cornell University Press, 1989), in which he argues that these two forms of play have been engaged over time in an ongoing ‘contest for cultural authority’: at 6. Roger Caillois calls the two forms of play ludus and paedia: Roger Caillois, Man, Play and Games, tr Meyer Barash (Schocken Books, 1979) 13. 2 Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) The Modern Law Review 176, 177. 3 Richard J Lazarus, ‘Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future’ (2009) 94 Cornell Law Review 1153, 1174, 1176. 4 Ibid 1184. 5 R Henry Weaver and Douglas A Kysar, ‘Courting Disaster: Climate Change and the Adjudication of Catastrophe’ (2017) 93(1) Notre Dame Law Review 295, 296. 6 Fisher, Scotford and Barritt (n 2) 173. 7 Ibid 174. 8 Ibid 200.

32  Climate catastrophism and legal aporia Legal systems as we know them today evolved against a backdrop of predictable weather patterns, largely manageable natural disasters and seemingly limitless natural resources: the Holocene era. Legal systems which prioritise stability and coherence worked well during this long period of climatic constancy, or at least worked well for the groups of people with the power to establish them, to act as decision makers within them and to benefit from their operation. They were, of course, not immune to political disruption and revolution. However, the ongoing cycle of law-making violence and law-preserving violence9 ensured that one legal system was replaced by another and that there was only one ‘ungraspable revolutionary instant’,10 one shortlived destabilising moment outside existing law, in this ongoing cycle. The Anthropocene represents a period of ‘radical rupture in Earth’s history’ and consequently, from both a geological and intellectual perspective,11 the systems of the Holocene are singularly ill-suited to the Anthropocene. Specifically, the legal systems of the Holocene are ill-equipped in terms of principles, solutions, procedures and strategies to enable the resolution of ethical and other dilemmas associated with climate change exceptionalism. Despite this, we have seen and continue increasingly to see numerous attempts to create new laws, adapt existing laws and utilise existing legal rules in response to the unwieldy phenomenon of climate change. In this chapter, I discuss some of these attempts in the area of legal adjudication. The difficulties in effectively addressing the complexity and enormity of climate change catastrophism in the courtroom are particularly evident in the case studies arising out of environmental litigation. In the first part of the chapter, I develop this argument by considering cases in which activists have sought to prevent the creation and expansion of Australian coalmines. The flaws and deficiencies of environmental law, and the structural difficulties inherent in legal systems generally, are clearly apparent here. In the second part of the chapter, I look at the ‘next generation’ of climate litigation12 against governments, in which litigants are exploring the creative possibilities inherent in other categories of law such as tort, nuisance, constitutional law, public trust and human rights law. I then turn to recent litigation against the so-called Carbon Majors, also part of the ‘next generation’ of climate litigation. Activist litigants have achieved some unexpected recent victories. And yet, despite such successes and the additional weaponry in the litigious arsenal, the trickster of climate change has by no means been reined in. Legal narratives of climate change are partial, incomplete and framed by rules and procedures that are increasingly obsolete in light of the urgency of the

9 Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, tr Mary Quaintance (1990) 11(5–6) Cardozo Law Review 920, 981, 1031. 10 Ibid 1001. 11 Clive Hamilton and Jacques Grinevald, ‘Was the Anthropocene Anticipated?’ (2015) 2(1) The Anthropocene Review 59, 62. 12 Jacqueline Peel, Hari Osofsky and Anita Foerster, ‘Shaping the Next Generation of Climate Change Litigation in Australia’ (2017) 41(2) Melbourne University Law Review 793.

Climate catastrophism and legal aporia  33 climate change crisis. Climate change litigation targets some of the contributing components of climate change and addresses some of its many impacts, but it tends to shy away from tackling climate change in its entirety. The siloed nature of law and litigation contributes to this deficiency.13 This is so notwithstanding the well-publicised progress of the current Children’s Trust lawsuit against the United States federal government, which I examine in more detail in Chapter 3 and which has been preceded by, and run in tandem with, a plethora of other lawsuits waged by teenagers and children against other governments. In youth climate litigation, we find many of the components of an engrossing narrative: personal suffering, potent symbolism, charismatic leading actors, environmental apocalypse,14 the possibility of redemption and a David and Goliath subtext. Underpinning these proceedings is the imperative of adult responsibility for the wellbeing of the next generation. We all seek to provide a secure future for our children but this most basic human desire has not, thus far, instigated the necessary transformative changes in our political and legal systems. Another new development has been the human rights ‘turn’ in climate litigation.15 Recent lawsuits have drawn attention to the impact of climate change on human rights, a phenomenon which I revisit in Chapter 4. Again, the narrative arising from such lawsuits is compelling: climate change as a dire threat to humanity and to the basic rights that are enshrined and protected in international human rights law. However, the narrative of human rights does not of itself convey the full enormity of the climate crisis and also has not, thus far, generated effective responses to climate change. Litigants find themselves confronting contradictions and paradoxes as they navigate existing legal systems in their search for climate justice. Although the ongoing wellbeing and, indeed, survival of humanity is at stake, procedural delays, structural impediments and doctrinal shortcomings continue to thwart their attempts to seek remedies and achieve mitigation outcomes. In the ongoing tale of climate litigation, the solid evidence of climate catastrophism frequently evaporates in the face of procedural and doctrinal obstacles. Lewis Hyde’s description of aporia applies here: To experience aporia is to be caught in a tunnel with a fire at either end, to be bewildered by clouds of ink or encircled by a net of bubbles. No matter how many times you reverse yourself, you’re still caught.16

13 Anna Grear, ‘Towards “Climate Justice”? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy’ (2014) (June) 5 Journal of Human Rights and the Environment 103, 105. 14 Weaver and Kysar (n 5) 352. 15 See Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7(1) Transnational Environmental Law 37. 16 Lewis Hyde, Trickster Makes This World. Mischief, Myth and Art (Farrar, Straus and Ciroux, 1998) 49.

34  Climate catastrophism and legal aporia

Pursuing mitigation outcomes through environmental law: Australian anti-coalmine litigation as a case study In Australia, the focus of public interest climate litigation has been, thus far, on preventing large-scale projects with significant associated greenhouse gas emissions. Coalmines are the most conspicuous and controversial of such projects. The exponential growth of the Australian coal industry is at odds with global mitigation objectives and Australia’s commitments in the Paris Agreement.17 It is also at odds with the IPCC’s headline-grabbing 2018 Special Report, already mentioned in Chapter 1, in which the scientist authors stated that coal usage for power generation must decline steeply if the world is to achieve the current best case scenario of a 1.5 degree global warming.18 In August 2018, this point was clearly made by Australian climate scientist Will Steffen in the New South Wales Land and Environment Court. Giving evidence on behalf of the community group Groundswell Gloucester, in a merits appeal by Gloucester Resources Limited and Yancoal against the rejection of the Rocky Hill Coal project, he stated that: ‘Step number one, if you’re really serious about the Paris targets, is no new fossil fuel developments’.19 Drawing in part upon both the Special Report and Professor Steffen’s evidence, Chief Justice Brian Preston concluded that the mine should not go ahead. His judgment,20 delivered in February 2019, represents a significant breakthrough in Australian coalmine litigation; I return to this case and explain its significance at the end of this section. The expansion of the coal industry in Australia has occurred with the active encouragement of the federal and State governments. These governments have channelled billions of dollars into the coal industry in the form of direct and indirect subsidies.21 The collusion between the coal industry and government has been well-documented.22 In 2013, then Prime Minister Tony Abbott claimed

17 Paris Agreement, opened for signature 22 April 2016, [2016] ATS 24 (entered into force 4 November 2016). 18 Myles R Allen et al, Global Warming of 1.5°C, an IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty (Intergovernmental Panel on Climate Change, 2018), Summary for Policymakers, 17 (‘IPCC Special Report’). 19 Quoted in Matthew Kelly, ‘Land and Environment Court Reserves Its Judgement in the Rocky Hill Coal Mine Case’, The Newcastle Herald (online, 6 September 2018) . 20 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 ‘Gloucester Resources Limited v Minister for Planning’. 21 See Adam Lucas, ‘Stranded Assets, Externalities and Carbon Risk in the Australian Coal Industry: The Case for Contraction in a Carbon-Constrained World’ (2016) 11 (January) Energy Research and Social Science 53, 59–60. 22 See, eg, Guy Pearse, David McKnight and Bob Burton, Big Coal. Australia’s Dirtiest Habit (­NewSouth Books, 2013) and Adam Lucas, ‘Revealed: the Extent of Job-Swapping Between

Climate catastrophism and legal aporia  35 that ‘coal is good for humanity’.23 More recently, in the absurdist ‘stunt’24 referred to in Chapter 1, then Treasurer Scott Morrison handed around a lump of coal amidst much jollity at Question Time in the Australian Parliament; this performance was intended to demonstrate the Coalition government’s ongoing support for the mining industry. In 2018, this Coalition government, now under the leadership of Morrison, dismissed the IPCC Special Report warnings about the critical urgency of phasing out coal as a power source, with the deputy Prime Minister stating that Australia should ‘absolutely’ continue to use and exploit its coal reserves.25 It is unsurprising, given this political context, that the bulk of Australian climate litigation comprises challenges to and appeals of government decisions at both federal and State levels to approve coalmines.26 The narrative that emerges from successive attempts by public interest litigants and their tenacious lawyers to challenge new coalmines and expansions to coalmines in New South Wales and Queensland is not one of empowerment and transformation. It is, instead, a narrative of frustration, delay, incremental steps and ongoing legal and political setbacks. Environmental apocalypse and the dimensions of wild time do not surface in the courtroom narratives. The slow progress of these lawsuits through an obstructionist court system is in marked contrast to the urgency of climate mitigation. The stakes could not be higher as courts deliberate on procedural formalities, questions of statutory interpretation and the relative importance of environmental, social and economic considerations in relation to coalmining. It is in light of these anomalies that, in 2018, leading public interest environmental lawyer Sue Higginson described climate litigation in Australia, and New South Wales specifically, as ‘disaster law’.27 It is also noteworthy that, with the important exception of the very recent Rocky Hill coalmine case, successful outcomes in these coalmine challenges have

23

2 4

25

26

27

Public Servants and Fossil Fuel Lobbyists’, The Conversation (online, 5 March 2018) . James Massola, Peter Ker and Lisa Cox, ‘Coal Is “Good for Humanity”, Says Tony Abbott at Mine Opening’, The Sydney Morning Herald (online, 14 October 2014) . Elle Hunt, ‘Scott Morrison and Ray Hadley Laugh about Coal Prop: “Great Stunt”’, The Guardian (online, 13 February 2017) . Paul Karp, ‘Australian Government Backs Coal in Defiance of IPCC Climate Warning’, The Guardian (online, 9 October 2018) . Hari M Osofsky and Jacqueline Peel, ‘Litigation’s Regulatory Pathways and the Administrative State: Lessons from US and Australian Climate Change Governance’ (2012–13) 25(2) Georgetown International Environmental Law Review 207, 239. Susan Higginson was Principal Solicitor and then Chief Executive Officer of the New South Wales Environmental Defenders Office from 2013 to 2017. She made this comment as keynote speaker on a Climate Justice Panel at the Narratives of Climate Change symposium, University of Newcastle, 6 July 2018.

36  Climate catastrophism and legal aporia resulted from considerations other than climate change. This is despite the fact that the evidence of climate scientists has featured prominently in courtroom hearings. For instance, the first approval of Adani’s controversial Carmichael mine in Queensland, then projected to become Australia’s largest coalmine, 28 was set aside because the federal minister had failed to consider two conservation advices.29 Following litigation, the expansion of Yancoal’s open-cut Ashton coalmine in the Hunter Valley of New South Wales is currently blocked by the novel requirement that the company first purchase the adjacent property of Wendy Bowman – and the adamantly anti-mining, octagenarian farmer is refusing to sell.30 The landmark decision of Chief Justice Brian Preston in the New South Wales Land and Environment Court to prevent the expansion of Rio Tinto’s Mount Thorley Warkworth mine,31 upheld on appeal,32 was based upon the social impact on the beleaguered town of Bulga and the implications for biological diversity. Groundwater considerations rather than climate change concerns underpinned the Queensland Land Court’s decision in 2017 to recommend the rejection of the New Acland Mine expansion.33 Courtroom wins are, in any event, rare for Australian anti-coalmine litigants, who confront some formidable and systemic impediments; these include judicial susceptibility to the so-called substitution argument, judicial misunderstanding and/or distrust of scientific modelling and related predictions and the structural limitations of both environmental law and ­environmental litigation. Chief Justice Brian Preston’s decision in the Rocky Hill mine case, distinguished by his attention to climate change impacts, his articulation and application of the ‘wrong time’ test and his cogent reasoning in dismissing the substitution and other commonly deployed arguments, marks an extraordinary departure from a long tradition of largely unsuccessful ­Australian ­a nti-coalmine cases.

28 In 2018, however, the assessment process for an even larger proposed coal mine, the Alpha North mine by Waratah Coal, began; Anne Davies, ‘Clive Palmer’s Coalmine Plan Scrutinised over Impact on Great Barrier Reef’, The Guardian (online, 22 May 2018) . 29 There was no judgment in the case. The order to set aside the decision was made on 4 August 2015 with the consent of the parties. 30 Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc (2015) 212 LGER A 265; see Mick Daley, ‘Standing Farm over Ashton Coal’s Camberwell Mine’, The Saturday Paper (­online, 18 July 2015) . In 2017, the farmer Wendy Bowman was awarded the Goldman Environmental Prize, in recognition of her tireless fight against mining expansion in the Hunter Valley. 31 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LGER A 347 (‘Bulga Milbrodale v Minister for Planning’). 32 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527 (‘Warkworth v Bulga Milbrodale’). 33 New Acland Coal Pty Ltd v Ashman [2017] QLC 24, overturned on appeal in New Acland Coal Pty Ltd v Smith [2018] QSC 88.

Climate catastrophism and legal aporia  37 The substitution argument Much Australian anti-coalmine litigation is configured around the adequacy of the assessment process for each individual project. One contentious issue is the extent to which, if at all, future Scope 3 emissions should be considered; these include emissions from the burning of coal produced from the coalmine, wherever that may take place. The global significance of such emissions is apparent in the fact that the relative proportion of emissions from Australian black coal exports to Australian domestic emissions has exceeded 130% annually since 2010.34 While some judges have accepted the need to consider Scope 3 emissions in assessing and approving proposed coalmines, others have not. In the Anvil Hill coalmine case,35 Justice Pain held that environmental assessment36 must include all greenhouse gas emissions from the project, including Scope 3 emissions, and that ‘the contribution from a single large source … should [not] be ignored’.37 The decision led to legislative reform38 in that downstream emissions now have to be considered in mining applications in New South Wales. In Queensland, however, judges have proved to be far more recalcitrant in accepting the need to consider Scope 3 emissions in any decision-making process, and furthermore in accepting scientific predictions about the precise contribution of particular proposed mines.39 Despite adverse findings in numerous Queensland coalmine cases, Sean Ryan, who has represented public interest litigants as principal solicitor of the Queensland Environmental Defenders Office, and Justine Bell-James argue that there has been ‘significant incremental progress’ in the jurisprudence in relation to assessment of Scope 3 emissions in Queensland.40 Furthermore, Queensland courts have adopted the substitution argument,41 in accepting that the projected greenhouse gas emissions from a proposed mine would be generated by other, possibly ‘dirtier’ sources if the mine does not go

3 4 Lucas (n 21) 63. 35 Gray v Minister for Planning (2006) 152 LGER A 258 (‘Gray v Minister for Planning’). 36 In this case, pursuant to the now repealed Part 3A of the Environmental Planning and Assessment Act 1979 (NSW). 37 Gray v Minister for Planning (n 35) 287. 38 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW) cl 14. 39 Xstrata Coal Queensland Pty Ltd v Friends of the Earth – Brisbane Co-Op Ltd [2012] QLC 013 [530], [601] (‘Xstrata v Friends of the Earth’); Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 12 [216]; Coast and Country Association of Queensland Inc v Smith [2015] QSC 260 [39]–[41]; Coast and Country Association of Queensland Inc v Smith [2016] QCA 242; Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48 [446], [449]; New Acland Coal Pty Ltd v Ashman (No 4) [2017] QLC 24 [1093]. 40 Justine Bell-James and Sean Ryan, ‘Climate Change Litigation in Queensland: A Case Study in Incrementalism’ (2016) 33(6) Environmental and Planning Law Journal 515, 518. 41 Also called the ‘drug dealers’ defence’; see Jacqueline Peel and Hari Osofsky, Climate Change Litigation. Regulating Pathways to Cleaner Energy (Cambridge University Press, 2015) 103.

38  Climate catastrophism and legal aporia ahead.42 According to the substitution argument, the quantum of global greenhouse gas emissions will therefore remain unchanged or even increase43 in this scenario. Federal Court judges have also endorsed the substitution argument, with ­Justice Dowsett finding in the Bowen Basin coalmine case that there had been adequate consideration of the impact of the emissions from the proposed mines and that it ‘was not suggested that in the absence of coal from these sources, less coal would be burnt’.44 In a 2016 Federal Court challenge to the second Carmichael mine approval, the federal Minister argued that there is a ‘raft of factors’ which affect total global greenhouse gas emissions and coal from the Carmichael mine could well be replaced by coal from another mine if the mine fails to go ahead; hence, ‘any increase in greenhouse gas emissions was a matter of speculation’.45 Justice Griffiths found that there was no reviewable error in the Minister’s ­decision-making process.46

Scientific modelling and attribution The decision47 of President Koppenol in the Queensland Land Resources Tribunal to take into account the arguments of climate change sceptics in dismissing a 2007 challenge to the extension of the Newlands coal mine appears to have been an anomaly. Australian judges now accept the findings of climate science. Some have recognised the significance and relative accuracy of scientific modelling in assessing the impact of greenhouse gas emissions from individual projects.48 Confronted with a barrage of expert scientific and other witnesses, others have

4 2 Xstrata v Friends of the Earth (n 39) [559]–[560], [581]; Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 12 [230]–[232]; Coast and Country Association of Queensland Inc v Smith [2015] QSC 260 [41]; Adani Mining Pty Ltd v Land Services of Coast and Country Inc [2015] QLC 48 [449], [453], [456]; New Acland Coal Pty Ltd v Ashman (No 4) [2017] QLC 24 [1092]. 43 See, for instance, Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 12 [232]. 4 4 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006) 232 ALR 510, 520. 45 Quoted in Michael Slezak, ‘Greg Hunt: No Definite Link Between Coal from Adani Mine and Climate Change’, The Guardian (online), 6 May 2016 . 4 6 Australian Conservation Foundation v Minister for the Environment (2016) 251 FCR 308; upheld on appeal in Australian Conservation Foundation Incorporated v Minister for the Environment and Energy (2017) 251 FCR 359. 47 Re Xstrata Coal Queensland Pty Ltd [2007] QLRT 33. 48 See, for instance, Justice Pain in Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221, in which she stated that ‘[t]his evidence [provided by Professor Roger Jones, a climate scientist] is significant because it demonstrates that it is methodologically possible to apply data from single (large) projects in a climate model to quantify to some extent at least the social cost of carbon. Such evidence means that the submission that a particular project is but one of many contributors to a local, regional and global problem, while correct, can be subject to analysis of what the individual project’s social cost of carbon is’: at [96].

Climate catastrophism and legal aporia  39 found it difficult to ascertain which predictions in relation to potential greenhouse gas emissions from a project and their impacts carry the most weight. Confusion in relation to attribution is exemplified in the Wandoan coalmine case in the Queensland Land Court. In that case, a world-renowned climate scientist, Dr Malte Meinshausen from the Potsdam Institute for Climate Impact Research, calculated the temperature increase which would be attributable to the greenhouse gas emissions from the proposed mine and estimated that 23,000 people would be inundated by the consequent sea level rise.49 However, another scientist, Professor Ian Lowe, conceded under cross-examination that it would be ‘speculative and unscientific’ to ‘attribute any specific environmental consequence to any specific project’.50 In light of this, the President of the Land Court found ‘Dr Meinshausen’s attempted quantification of the specific impacts of this project … unconvincing’.51 She also found the evidence of two expert economists, who presented the substitution argument, more persuasive than Dr Meinshausen’s views, given the latter’s lack of expertise in the economics of the coal market.52

The limitations of environmental law Australian judges are further constrained by the parameters and limitations of environmental law in adjudicating coalmine cases. As Mary Christina Wood has pointed out, the salient characteristic of existing environmental statutory regimes is that they permit rather than curtail ongoing development through bureaucratic authorisation.53 In the latest federal atmospheric public trust litigation in the United States, District Court Judge Aiken stated that: ‘Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it’.54 Overall, as Robin Kundis Craig has argued, current statutory regimes contain ‘the wrong cultural narrative for a climate change era’.55 One significant deficiency in the applicable regimes in Australia is that legal challenges to coalmines frequently assume the form of judicial review proceedings. Judges are confined here to ‘policing the procedural parameters of decisions’56 and ‘navigating the exceedingly narrow statutory gullies of

49 Xstrata v Friends of the Earth (n 39) [552]. 50 Ibid [551]. Dr Chris McGrath, who acted for the Friends of the Earth, has pointed out that there was in fact no inconsistency between the views of the two experts when Professor Lowe’s report and evidence given under cross-examination are read in full: email from Chris McGrath to author, 5 February 2019. 51 Xstrata v Friends of the Earth (n 39) [552]. 52 Ibid [559]–[560]. 53 Mary Christina Wood, Nature’s Trust. Environmental Law for a New Ecological Age (Cambridge University Press, 2014) 57–67. 54 Juliana v United States, 217 F Supp 3d 1224, 1263 (D Or 2016). 55 Robin Kundis Craig, ‘Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking’ (2016) 33(3) Pace Environmental Law Journal 351, 358. 56 David Farrier, ‘Anvil Hill in the Land and Environment Court’ in Tim Bonyhady and Peter Christoff (eds), Climate Law in Australia (The Federation Press, 2007) 189, 204.

40  Climate catastrophism and legal aporia environmental law’.57 Climate change constitutes, at best, a consideration to be factored into a decision-making process rather than the definitive consideration. A judge cannot find that greenhouse gas emissions and climate change should have been the paramount concern in the decision-making process unless the statute so stipulates.58 It is also sadly true that adverse findings tend only to delay the inevitable. Governments can and do enact legislation to override the effect of such decisions. There are many examples of political intervention after judges have made decisions contrary to the interests of the mining industry. After President K ­ oppenal’s approval of the Newlands mine was successfully challenged on appeal,59 the Queensland government passed legislation60 to ensure that the mine would proceed without further delay.61 Despite Justice Pain’s findings in the Anvil Hill coalmine case, the mine was subsequently approved by the State Minister for Planning.62 The Abbott federal government was so affronted by the setting aside of its first approval for the Carmichael mine in the Federal Court that the then Attorney General proposed amending the relevant environmental legislation63 to preclude further ‘vigilante’ lawsuits by members of the public.64 In October 2017, the New South Wales government passed legislation65 to override a Court of Appeal ruling66 against a proposed extension to the Centennial Springvale coalmine. The Planning Minister justified the government’s action with the extraordinary statement: ‘if you want a friend, get yourself a piece of coal’.67 Ironically, even if the Australian government could be persuaded to intervene to prevent highly controversial coalmines such as Adani’s Carmichael mine, climate activists may find themselves contending with yet another form of legal aporia: ­Investor-State Dispute Settlement clauses. Patricia Ranald has argued that a grandfather clause in the now terminated Australia-India treaty would enable

57 Wood (n 53) 110. 58 See, for instance, Coast and Country Association of Queensland Inc v Smith [2015] QSC 260 [24]; Gray v Minister for Planning (n 35) 297. 59 Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd (2007) 155 LGER A 322. 60 Mining and Other Legislation Amendment Act 2007 (Qld). 61 See Chris McGrath, ‘The Xstrata Case: Pyhrric Victory or Harbinger?’ in Bonyhady and Christoff (eds) (n 56) 214, 226–7. 62 See Farrier (n 56) 201–2. 63 Environment Protection and Biodiversity Conservation Act 1999 (Cth). 6 4 George Brandis, ‘Government Acts to Protect Jobs from Vigilante Litigants’ (Media release, 18­ August 2015) . 65 Environmental Planning and Assessment Amendment (Sydney Drinking Water Catchment) Act 2017 (NSW). 66 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 224 LGER A 301. 67 Quoted in Peter Hannam and Sean Nicholls, ‘“Get Yourself a Friend”: Government Defends Bill to Weaken Water Protection’, The Sydney Morning Herald (online, 11 October 2017) .

Climate catastrophism and legal aporia  41 Adani to seek compensation from the Australian government before an international tribunal, for money invested in mining infrastructure prior to March 2017.68 Admittedly, merits appeals in which the court re-makes the original decision can also arise in anti-coalmine litigation. In these proceedings, judges are not restricted to procedural considerations and can choose to prioritise the need to reduce greenhouse gas emissions over other factors. Yet, it is still possible for subsequent regulatory developments to negate any attempts by judges to factor greenhouse gas emissions from proposed coalmines into their decision-making. Furthermore, governments have the opportunity to approve a disallowed mining development on a second occasion, if the application is resubmitted. Mary Christina Wood has described this process as ‘a procedural spinning wheel’.69 In the Warkworth mine saga, a second approval process was carried out in a way that precluded any further court challenges. The first approval for an extension to this mine was set aside by Chief Justice Brian Preston of the New South Wales Land and Environment Court in a merits appeal,70 in which the concept of solastalgia, ‘a condition caused by the gradual erosion of the sense of belonging to a particular place and a feeling of distress about its transformation’,71 was recognised as applicable to the predicament of the residents of the village of Bulga.72 Rio Tinto subsequently submitted a revised application for the mine expansion. During the approval process, the Planning Assessment Commission held two public hearings and the possibility of another merits appeal was thereby removed in accordance with the existing statutory regime.73 Amongst the Commission’s recommendations was a proposal to relocate the entire town, with the cost of the relocation shared by Rio Tinto and the State government.74 A later legal challenge by the Bulga community, subsequently withdrawn on the basis that there was no longer any viable cause of action, was confined to grounds of administrative review. There is no further recourse to litigation on the part of the residents, who are already suffering from the impacts of coal dust, noise and visual pollution. Bulga has in effect become a sacrifice zone, with one resident describing the town as ‘on the edge of an industrial hell-hole’.75 68 Patricia Ranald, ‘The Legal Clause Which Could Allow Adani to Sue Australia’, The Guardian (online, 17 December 2018) . 69 Wood (n 53) 112. 70 Bulga Milbrodale v Minister for Planning (n 31), upheld on appeal in Warkworth v Bulga Milbrodale (n 32). 71 Bulga Milbrodale v Minister for Planning (n 31) 429. 72 Ibid 435. 73 Environmental Planning and Assessment Act 1979 (NSW) s 23F. 74 Jackson Vernon, ‘Proposal to Relocate Town of Bulga in NSW Hunter Region For Mine Expansion Will Destroy Heritage’, ABC News (online, 18 April 2015) . 75 Quoted in Judith Leslie, ‘Bulga Residents Continue to Raise Awareness about the Impact of Mining on their Village’, The Newcastle Herald (online, 21 September 2016) .

42  Climate catastrophism and legal aporia A new legal landscape for Australian coalmine challenges: the Rocky Hill mine decision The Rocky Hill mine decision,76 handed down by Chief Justice Brian Preston in February 2019, signals a turning point in Australian coalmine litigation in that for the first time a coalmine was rejected on climate change grounds. This was a remarkable judgment that reverberated around the world. The judge considered and discarded, with measured reasoning, the stumbling blocks which had impeded earlier challenges: the substitution argument or ‘drug dealer’s defence’,77 the ‘drop in the ocean’ argument78 and arguments relating to the remoteness and irrelevance of Scope 3 emissions from the mine.79 Rather than adopting a sceptical approach to the evidence of climate scientists, the judge accepted and relied upon Professor Will Steffen’s evidence relating to future climate impacts,80 the global carbon budget81 and the urgent need to keep all further fossil fuel reserves in the ground.82 He concluded, on the basis of the visual, amenity and social impacts of the mine, that the idyllic83 rural setting of Gloucester is the ‘wrong place’ for the mine.84 More significantly, he found that in light of the immediate need for ‘a rapid and deep decrease in GHG emissions’, it is also the ‘wrong time’ for this coalmine85 and, by implication, for most if not all proposed new coalmines. Climate time thus entered the judicial lexicon in anti-coalmine litigation. Two key factors distinguished the legal proceedings. First, unlike much earlier case law that took the form of judicial review challenges, the case took the form of a merits appeal and thus the judge was in a position to re-make the original decision.86 Second, it involved a coalmine that the New South Wales government had itself rejected, although not on climate change grounds,87 and therefore a political reversal of the court’s finding is unlikely. In this respect, the decision can be distinguished from earlier cases in which the court found against a coalmine and the government subsequently provided a new approval

76 Gloucester Resources Limited v Minister for Planning (n 20). 77 Ibid [534]–[545]. 78 Ibid [514]–[525]. Jacqueline Peel uses this term in ‘Issues in Climate Change Litigation’ (2011) 5(1) Carbon and Climate Law Review 15, 16–7. She explains that ‘[a] common defense … is that the GHG emissions from a particular activity are but a “drop in the ocean” in global terms and hence cannot be said to cause climate change harm and/or have a significant environmental impact’: at 16. 79 Gloucester Resources Limited v Minister for Planning (n 20) [487]–[513]. 80 Ibid [438]. 81 Ibid [441]–[443]. 82 Ibid [444]–[449], [527], [550]–[551]. 83 Ibid [2]. 84 Ibid [699]. 85 Ibid. 86 Ibid [7]. 87 Ibid [22].

Climate catastrophism and legal aporia  43 or intervened legislatively to negate the impact of the finding. Nevertheless, the mining company filed a Notice of Intention to Appeal. The case heralds a new direction in Australian coalmine litigation; indeed, the environmental public interest lawyers who represented the community group Groundswell Gloucester believe that the decision has major implications for both Australia and the world. 88 The judge was fully cognisant of recent international developments in climate litigation and climate policy and drew upon these developments to bolster his reasoning. He referenced Australia’s international commitments under the Paris Agreement89 and the alarming content of the 2018 IPCC Special Report.90 He quoted91 from the successful Dutch Urgenda decisions.92 His reasoning, and in particular his application of the ‘wrong time’ test, cannot be disregarded in future Australian coalmine litigation. Yet, as with all environmental cases, the decision related to only one specific project. Amongst the factors that reduce the efficacy of environmental law as a mechanism for addressing climate change is what Andreas Philippopoulos-­ Mihalopoulos calls the ‘devastating rhetoric of piecemeal action’.93 In the next part, I consider the so-called ‘next generation’ of climate litigation. Here, the focus has shifted away from individual projects. Instead, litigants are using legal arguments outside the scope of environmental law to hold governments to account for failing to introduce necessary mitigation measures.

The ‘next’ generation of climate litigation Holding governments to account Irrespective of the success or otherwise of environmental challenges and appeals, their narrow focus can at best provide only a fragmented approach to mitigation. Even in such specific, project-focused cases, judges can deliberately refrain from controversial decision-making, maintaining that the issue of climate change

88 David Morris and Brendan Dobbie, ‘Coal Miners Derided Climate Action “Sideshow”. Now It’s the Main Event’, The Sydney Morning Herald (online, 11 February 2019) . 89 Gloucester Resources Limited v Minister for Planning (n 20) [439]–[440], [526]–[527]. 90 Ibid [434]. 91 Ibid [521]–[524], [537]. 92 Urgenda v Netherlands (Hague District Court, ECLI:NL:RBDHA:2015:7196, 24 June 2015), unofficial tr (‘Urgenda v Netherlands’); Netherlands v Urgenda (The Hague Court of Appeal, ECLI:NL:GHDHA:2018:2610, 9 October 2018), unofficial tr (‘Netherlands v Urgenda’). These decisions are discussed in the next part. 93 Andreas Philippopoulos-Mihalopoulos, ‘Critical Environmental Law in the Anthropocene’ in Louis J Kotze (ed), Environmental Law and Governance for the Anthropocene (Hart Publishing, 2017) 117, 128.

44  Climate catastrophism and legal aporia mitigation is best left to the legislative arm of government.94 This ­reasoning, referred to as the ‘political question’ doctrine in United States case law, surfaces repeatedly in judgments in climate lawsuits. In some of the recent ‘next generation’ cases outlined below, however, judges have been prepared to venture boldly into the terrain described by others as law making. Jacqueline Peel, Hari Osofsky and Anita Foerster have designated as ‘next generation’ climate litigation a cluster of certain recent and current cases. In these cases, the focus is no longer on specific projects and the applicability of environmental statutes and, instead, the intention is ‘to hold governments and corporations directly to account for the climate change implications of their activities’.95 In 2015, two such cases, one in the Netherlands and one in Pakistan, resulted in remarkable outcomes. In 2018, one day after the stark warnings in the IPCC’s Special Report 96 were publicly released, the appellate court in the Netherlands upheld the earlier decision. These cases represent a turning point in climate litigation and in ‘law’s confrontation with [climate] catastrophe’;97 in Weaver and Kysar’s words, they exemplify ‘the more dynamic, adaptive and restless forms of jurisdictional assertion required in an age of unlimited harm’.98 In the Netherlands, a Dutch non-government organisation called the Urgenda Foundation, joined by some 886 Dutch citizens, succeeded in the District Court in the Hague in arguing that the Dutch government owed and was in breach of a duty of care to the plaintiffs to take effective action by 2020 to reduce its emissions by at least 25%, relative to its 1990 emissions. Actions in tort 99 had been previously mounted without success against the fossil fuel industry and big emitters but this was the first time that a tortious action had been mounted against a national government. The proceedings were inspired by a book written by Urgenda’s lawyer, Roger Cox, who argued therein that judicial intervention ‘is the last option still available to us within the framework of our Western democratic model to take targeted and effective action to mitigate the consequences of climate change and oil decline’.100 In Urgenda, the expectation that judges would act where governments failed to do so was met. The fact that the legal issue to be addressed was one ‘which has

 94 See, for instance, the member of the Queensland Land Court in the Alpha Coalmine case, who expressed sympathy for ‘the position of objectors who see GHG emissions rising, and the likely adverse climate change consequences that will flow should nothing be done to alter the course that the world is heading down’ but went on to state that addressing such dire consequences was not within the jurisdiction of his court, but rather a matter for the international community and the federal government: Hancock Coal Pty Ltd v Kelly (No 4) [2014] QLC 12 [231]–[232].  95  Peel, Osofsky and Foerster (n 12) 803.  96  I PCC Special Report (n 18).  97  Weaver and Kysar (n 5) 329.   98 Ibid 330.  99 See Native Village of Kivalina v ExxonMobil Corporation, 696 F 3d 849 (9th Cir 2012) and American Electric Power Company v Connecticut, 131 S Ct 2527 (2011). 100 Roger HJ Cox, Revolution Justified. Why Only the Law Can Save Us Now (Planet Prosperity Foundation, 2012) 243.

Climate catastrophism and legal aporia  45 never before been answered in Dutch proceedings and for which jurisprudence does not provide a ready-made framework’101 did not deter the court. In finding for Urgenda, the judges rejected a version of the substitution argument, here presented as a phenomenon known as the ‘waterbed effect’ or ‘carbon leakage’: namely, that ‘other European countries will neutralise reduced emissions in the Netherlands, and that greenhouse gas emission in the EU as a whole will therefore not decrease’.102 The Court also rejected the ‘drop in the ocean’ argument, according to which the current emissions from the Netherlands are an insignificant contribution to the global problem; consequently, any reduction on the part of the Netherlands will not have much practical effect as it ‘would hardly effect global emissions’.103 Critics decried the political nature of the court’s role in this case104 and the Dutch government, although prepared to implement the ruling on the basis that climate change mitigation and emission cuts are necessary,105 appealed the decision. In the appeal, heard in May 2018, the government argued that the judges had overstepped their authority; climate minister Eric Wiebes told the media that democracy had been ‘sidelined’ by the judgment.106 The Hague Court of Appeal disallowed the appeal, upholding the original decision of the lower court but relying even more heavily upon rights-based reasoning. The appellate court held107 that the State’s failure to meet its duty of care to the plaintiffs arose from Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.108 The judges flatly rejected the State’s argument that ‘it is not up to the courts but to the democratically legitimised government as the appropriate body to make the attendant policy choices’; they held that the violation of human rights called for the imposition of measures and the State had ‘sufficient room’ to decide how to comply with the requirement to reduce emissions.109 Given that Urgenda had not appealed the lower court’s ruling for an emissions reduction of at least 25% by 2020, the appellate judges could not find that a greater reduction must occur.110 In light of the judges’ acceptance of the looming dangers of climate change111

01 Urgenda v Netherlands (n 92) [4.53]. 1 102 Ibid [4.81]. 103 Ibid [4.78]. 104 KJ de Graaf and JH Jans, ‘The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change’ (2015) 27(3) Journal of Environmental Law 517, 523–4. 105 Ibid 527. 106 Quoted in Arthur Neslen, ‘Dutch Government Appeals against Court Ruling over Emission Cuts’, The Guardian (online, 29 May 2018) . 107 Netherlands v Urgenda (n 92) [73]. 108 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953). 109 Netherlands v Urgenda (n 92) [67]. 110 Ibid [39]. 111 Ibid [44]–[45].

46  Climate catastrophism and legal aporia and their stringent view of the State’s obligations to do its utmost to avert these dangers,112 it is quite possible that they would otherwise have done so.113 In November 2018, the Netherlands government announced its intention to ask the Supreme Court to review the appellate court’s decision.114 In Pakistan, the Leghari decision in 2015 constitutes an even more overt example of judicial ‘law-making’ in a regulatory vacuum, or, as Weaver and Kysar have described it, ‘an especially bold example of judicial prodding and ­pleading’.115 The litigant, Ashgar Leghari, is a law student and sugar cane farmer, frustrated by the ongoing failure of the Pakistani government to address climate change while its small-scale farmers struggle with drought and other unpredictable weather patterns.116 He filed a petition in the Lahore High Court, claiming that his fundamental rights were being violated by this failure on the part of the government. Judge Syed Mansoor Ali Shah summoned representatives from all federal ministries and provincial-level authorities into his court. In accordance with Judge Shah’s orders in this case,117 a Climate Change Commission was established with the task of ensuring that the government’s 2012 National Climate Policy and the 2013 Framework for its implementation are observed by the relevant government representatives.118 Judge Shah held that both constitutional rights and constitutional values ‘provide the necessary judicial toolkit to address and monitor the Government’s response to climate change’.119 Clearly Judge Shah, as a representative member of Pakistan’s ‘traditionally activist judiciary’,120 is not concerned about the court overstepping its role in instructing the government to act. A third extraordinary attempt to hold governments to account is the Juliana case against the United States government. I return to this case in the next chapter, as a pre-eminent example of youth climate litigation. As one of a suite of

12 Ibid [71]. 1 113 Ibid [75]. The judges stated that ‘[a] reduction of 25% should be considered a minimum, in connection with which recent insights about an even more ambitious reduction in connection with the 1.5°C target have not even been taken into consideration’: at [73]. 114 ‘Dutch State Will Appeal against Climate Change Verdict’, DutchNews.nl (online, 16 November 2018) . 115 Weaver and Kysar (n 5) 343. 116 Anam Gill, ‘Farmer Sues Pakistan’s Government to Demand Action on Climate Change’, Reuters (online, 14 November 2015) . 117 Leghari v Federation of Pakistan (Lahore High Court, WP No 22501/2015, 4 September 2015) (‘Leghari’). 118 Ibid [8]; Malini Mehra, ‘Pakistan Ordered to Enforce Climate Change by Lahore Court’, Climate Home News (online, 20 September 2015) . 119 Leghari (n 117) [7]. 120 Peel and Osofsky (n 15) 52.

Climate catastrophism and legal aporia  47 Children’s Trust lawsuits, the Juliana case raises the issue of atmospheric public trust obligations on the part of the federal government. The litigants are also arguing that the government is infringing a number of their fundamental rights in failing to act on climate change, as I discuss further in Chapter 4. In this historic trial, should it take place, the adequacy of United States federal fossil fuel policy in light of ‘the imperative’ of climate reality will be assessed in a courtroom for the first time.121 Writing in 2017, Weaver and Kysar have pointed out that ‘[p]erhaps the most surprising aspect of the Juliana case is that the plaintiffs have not yet lost’.122 Considerable legal obstacles have been thrown in the path of the young litigants by the Trump administration and fossil fuel corporations, which successfully sought leave to intervene as co-defendants and then subsequently withdrew from the proceedings; these have led to lengthy delays. There have been ongoing attempts on the part of the defendants to get the case dismissed or otherwise derail it. Amongst other hurdles, the political question doctrine has been argued by the government but failed to deter Magistrate Judge Thomas Coffin from finding that there was a case to answer, nor Justice Aiken in the United States District Court for Oregon when she denied the government’s motion to dismiss the case. Magistrate Coffin stated that the ‘intractability of the debates before Congress and state legislatures … necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government’.123 In her judgment, Justice Aiken similarly held that ‘[e]ven when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government’.124 The trial, predicted to be ‘the trial of the century’ by both lead plaintiff Kelsey Juliana125 and Deputy Assistant Attorney General Grant,126 was scheduled to commence before Justice Aiken at the end of October 2018 but delayed by a last minute temporary stay granted by the United States Supreme Court at the defendants’ request. In December 2018, the trial was further postponed by the decision of the Ninth Circuit Court of Appeals to grant the government’s petition for an interlocutory appeal.

121 Michael C Blumm and Mary Christina Wood, ‘“No Ordinary Lawsuit”: Climate Change, Due Process and the Public Trust Doctrine’ (2017) 67(1) American University Law Review 1, 55. 122 Weaver and Kysar (n 5) 347. 123 Juliana v United State (D Or, No 6:15-cv-01517-TC), Order and Findings and Recommendation, 8 April 2016, 8. 124 Juliana v United States, 217 F Supp 3d 1224, 1264 (D Or 2016). 125 Quoted in Megan Darby, ‘US Set For Intergenerational “Trial of the Century”’, Climate Home News (online, 12 April 2016) . 126 Quoted in Richard Frank, ‘Awaiting the Climate Change “Trial of the Century”’, Legal Planet (online, 31 July 2018) .

48  Climate catastrophism and legal aporia Other lawsuits against governments have taken place and are currently underway.127 The proliferation of such challenges in a number of different national jurisdictions, some with successful outcomes, is a clear sign that activists are increasingly turning to the courts in order to compel governments to act on climate change. It is difficult to create ‘compelling stories’128 from the dry and complex statutory regimes of environmental law. It is arguable that the urgency of the climate crisis is more clearly understood, and provides a more pressing imperative for effective judicial decision-making, when framed within the context of governmental duties of care and hazardous negligence, the public trust doctrine in its application to the atmosphere and civil and constitutional rights. In such litigation, the focus has shifted from a particular project, and the adequacy of its assessment process given its proportionate contribution to global warming, to the overarching issues raised by climate change: the critical urgency of national governments addressing global warming immediately in light of scientific predictions and their obligations to their citizenry, the current and future impact of climate change on human rights, and the vulnerability of future generations to climate change impacts. These narratives fall into the category of influential and creative legal storytelling identified by Laura King, with the potential to attract the public’s attention, change public perceptions and even shift culture.129 Irrespective of the significance of the stories, themes and, in some instances, symbolic messages conveyed by these lawsuits, they also raise the important and fundamental question: can, and indeed should, the courts compel governments to act on climate change? The view of the judges in the Urgenda and Leghari cases is that they can and should. Marjan Minnesma, the charismatic, seemingly indefatigable director of the Urgenda Foundation, has stated that the Dutch appellate court’s 2018 decision ‘puts all governments on notice. They must act now, or they will be held to account’.130 In other courtrooms, the ongoing application of the political question doctrine indicates that not all judges are prepared to be proactive on the issue of climate mitigation.131 1 27 See, for instance, the New Zealand lawsuit brought by a former law student in which she challenged the government’s emissions reduction target and failure to review its climate change targets: Thomson v Minister for Climate Change Issues [2017] NZHC 733; and the action brought by Senior Women for Climate Protection Switzerland against the Swiss government. Three German organic farming families have recently brought an action against the German government on the basis that their rights to life and health are endangered by the government’s failure to meet its mitigation targets. In December 2018, four French organisations commenced proceedings against the French government for its failure to adequately address climate change. These and other cases are discussed further in Chapters 3 and 4. 128 Laura King, ‘Narrative, Nuisance and Environmental Law’ (2014) 29(2) Journal of Environmental Law and Litigation 331, 352. 129 Ibid 334. 130 Quoted in Neslen (n 106). 131 Two 2018 decisions, in youth climate lawsuits brought against the State of Alaska and the State of Washington, demonstrate that this reasoning is still prevalent within the judiciary; see Dana Drugmond, ‘Alaska Judge Dismisses Youth Climate Suit Vs State Government’,

Climate catastrophism and legal aporia  49 The view that governments must comply with judicial decision-making in relation to their mitigation policies has attracted considerable criticism and the question is far from being settled. In the event that the conservative United States Supreme Court eventually finds in favour of the Juliana litigants, and the Trump administration is still in power when that occurs, it is difficult to envisage the somewhat intransigent executive arm of government in the United States cooperating with any mitigation requirements imposed by such a ruling. In Chapter 3, I consider the role played by recent lawsuits in ‘telling the tale of the children’ by highlighting the plight of today’s youth and future generations in a climate-changed future. In Chapter 4, I look further at the contribution that these lawsuits make to the ongoing narrative of rights against the backdrop of climate change.

Addressing corporate complicity in climate change In the sections above, I have considered litigation that targets State actors. The focus on the obligations and responsibilities of State actors is also apparent in international discussions on mitigation under the auspices of the United Nations; these are directed towards the setting of national targets rather than to reining in the powerful multinational corporations that profit from the continued use of fossil fuels. This emphasis, however, is shifting, at least in the area of climate litigation. Increasingly we are now seeing, particularly in the United States, litigation intended to hold fossil fuel corporations to account for their key role in the climate crisis. Such corporations, the leading global producers of oil, natural gas, coal and cement,132 are known, collectively, by the term ‘the Carbon Majors’. In the previous chapter, I highlighted some of the trickster attributes of such multinational corporations, including the duplicity apparent in their promulgation of unreliable climate narratives. Corporate tricksters play a key contributory role in driving the climate change phenomenon and yet are notoriously elusive when it comes to providing remedies and compensation for victims of climate change. Corporate trickster attributes and, in particular, legally enabled shape shifting contribute to this elusiveness. In addition, the corporate co-optation of the rights narrative is an important consideration. In Chapter 4, I look at the insidious contribution of corporate rights to climate change.

Climate Liability News (online, 1 November 2018) . 132 See Richard Heede, ‘Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010’ (2014) 122(1–2) Climatic Change 229, in which Heede presents a quantitative analysis of the overwhelming contribution of 90 ‘carbon major’ entities to the rise in global greenhouse gas emissions.

50  Climate catastrophism and legal aporia Civil lawsuits against the Carbon Majors At the same time as citizen groups and individuals are seeking to hold governments to account for their failure to implement effective mitigation policies, governments at various levels in the United States are arguing that certain corporations bear legal responsibility for the ravages of climate change. There have been some earlier unsuccessful attempts to sue such corporations for damages, including a lawsuit by the State of California against six major car ­manufacturers,133 a claim by Gulf Coast residents against oil, coal, electric and chemical corporations for damages sustained as a consequence of Hurricane ­K atrina,134 a lawsuit in public nuisance brought by eight American States and New York City against five major utilities135 and the action taken by Inupiat Eskimos from the doomed village of Kivalina against 24 oil, energy and utility companies.136 However, an unprecedented wave of lawsuits instigated by various public authorities since 2017 have shone a legal spotlight on the contribution to climate change on the part of the Carbon Majors and highlighted complex issues of legal responsibility. In July 2017, Marin and San Mateo Counties and the City of Imperial Beach, California began three separate lawsuits in public nuisance against a number of large oil companies and coal producers. Later that year, the Californian cities of San Francisco and Oakland launched similar lawsuits in public nuisance against five major oil companies, seeking financial compensation for the infrastructure costs which they will incur in responding to climate change impacts. In January 2018, in an attempt to ‘shift the costs of protecting [the] City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat’,137 New York commenced its own lawsuit in public nuisance, private nuisance and trespass against the same five oil companies: ExxonMobil, Chevron, BP, Royal Dutch Shell and ConocoPhillips. In April 2018, three local government entities in the State of Colorado started proceedings against ExxonMobil and Suncor Energy Inc. In May, King County in ­Washington State commenced an action in public trespass and nuisance against five large fossil fuel companies. In July 2018, the State of Rhode Island filed its own complaint against 21 major fossil fuel corporations, seeking compensatory and punitive damages, and in the same month the Mayor and City of Baltimore began similar proceedings against 26 defendants. In the international arena, the Vanuatan government announced in November 2018 that it was considering litigation against fossil fuel corporations and the nation states that had colluded with them ‘in actively and knowingly creat[ing]

33 People of the State of California v General Motors Corporation (2007) WL 2726871 (ND Cal). 1 134 Comer v Murphy Oil USA, 607 F 3d 1059 (5th Cir 2010). 135 American Electrical Power Company v Connecticut, 564 US 410 (2011). 136 Native Village of Kivalina v ExxonMobil Corporation, 696 F 3d 849 (9th Cir 2012). 137 City of New York v BP PLC (SDNY, No 1:18-cv-00182), Opinion and Order, 19 July 2018, 7.

Climate catastrophism and legal aporia  51 this existential threat’ to Vanuatu.138 In April 2019, seven environmental and human rights organisations and more than 17,000 citizens in the Netherlands commenced a lawsuit against Royal Dutch Shell, arguing that its failure to modify its business model and growth strategy in accordance with the goals of the Paris Agreement was unlawful and infringed various human rights.139 As previously stated, climate change litigation in public nuisance is not unprecedented but has not, to date, met with success. It is difficult to succeed in any lawsuits against powerful transnational corporations. Amongst other issues, ‘the transnational corporate form deploys protean modes of mutation unavailable to corporeally specific human beings in order to evade liability for harms’.140 As previously stated, the propensity to shape shift is a corporate trickster attribute. The restructuring manoeuvres of the Australian company James Hardie Industries in order to avoid paying compensation to asbestos victims141 exemplify such ‘protean modes of mutation’. In the corporate climate litigation, four of the five defendant companies in the San Francisco and Oakland lawsuit argued successfully that the companies were not residents of California and hence the state court lacked jurisdiction over them. Furthermore, the United States judiciary has been loath to intervene in the climate change context, with various judges contending that the regulation of greenhouse gas emissions and claims for damages arising from greenhouse gas emissions are matters which are non-justiciable and best left to the executive and legislative arms of government.142 Judge Keenan of the United States District Court dismissed the lawsuit brought by the City of New York on the basis that: the serious problems caused [by climate change] are not for the judiciary to ameliorate. Global warming and solutions thereto must be addressed by the two other branches of government.143 He also expressed concerns about the foreign policy implications of holding the defendant companies liable for the emissions caused by their worldwide 138 Lisa Cox, ‘Vanuatu Says It May Sue Fossil Fuel Companies and Other Countries Over Climate Change’, The Guardian (online, 22 November 2018) . 139 Karen Savage, ‘Shell Sued in the Netherlands for Insufficient Action on Climate Change’, Climate Liability News (online, 5 April 2019) . 140 Grear (n 13) 120. 141 See Peta Spender, ‘Weapons of Mass Dispassion: James Hardie and Corporate Law’ (2005) 14 Griffith Law Review 280. 142 Actions in public nuisance brought against four power companies and the Tennessee Valley Authority failed on appeal when the United States Supreme Court held that the federal Clean Air Act displaces any such claims: American Electric Power Company v Connecticut (2011) 131 S Ct 2527. An action in public nuisance brought by the Inuit Village of Kivalina against oil, power and coal companies failed for the same reason on appeal in the Ninth Circuit Court of Appeals. 143 City of New York v BP PLC (SDNY, No 1:18-cv-00182), Opinion and Order, 19 July 2018, 20.

52  Climate catastrophism and legal aporia activities in producing and selling fossil fuels.144 New York has appealed this decision. Finally, in the specific context of climate change, establishing a legal chain of responsibility from the past and current emissions of the so-called Carbon Majors to existing and future climate change impacts is fraught with difficulty. Ample evidence has been uncovered of both long-standing knowledge of the dangers and deliberate obfuscation on the part of the fossil fuel industry. The authors of a report of the Center of International Environmental Law have concluded that the American oil industry was aware of the real risks of climate change from as early as 1968, when a Stanford Research Institute Report commissioned by the American Petroleum Institute was completed,145 and probably from 1957.146 Will Frank, a German lawyer, has argued that: From a legal perspective, human-induced climate change is not a black box in which causality vanishes. Far from being a random phenomenon for which no one bears responsibility, climate damage is legally attributable.147 Dr Frank is acting for Saul Luciano Lliuya, a Peruvian citizen who is suing the largest German electricity corporation, RWE, in German courts; he is seeking a monetary contribution to the cost of protecting his house from the risk posed by a melting glacier. The contribution sought is 0.47% of the cost of flood protection works on the basis that RWE contributes 0.47% of annual global greenhouse gas emissions. An appellate ruling in November 2017 has allowed the case to progress into the evidentiary phase. Nevertheless, the chain of responsibility for climate change impacts involves many corporate and non-corporate players and, despite evidence of corporate awareness of the hazards and risks associated with their activities and corporate deviousness in seeking to conceal such risks from the public, establishing the causal contribution of any particular individual, corporation or group of corporations is inherently problematic. This was the reasoning adopted by the five oil companies in the San ­Francisco and Oakland lawsuits. In their Motion to Dismiss, filed in March 2018, the corporations argued inter alia that the claims depended on ‘an attenuated causal chain involving billions of intervening third parties – i.e., fossil fuel users like Plaintiffs themselves – and complex environmental phenomena occurring

44 Ibid 21–2. 1 145 Carroll Muffett and Steven Feit, Smoke and Fumes. The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis (Briefing Note, Center for International Environmental Law, November 2017) 21 . 146 Ibid 8. 147 Will Frank, ‘Climate Change – Not a Legal Black Box’, tr Christopher Hay (2018) Neue Zeitschrift für Verwaltungsrecht 960, 962.

Climate catastrophism and legal aporia  53 worldwide over many decades’.148 In a so-called climate science tutorial in the courtroom the next day, Chevron’s lawyer did not dispute the conclusions of the IPCC about anthropogenic climate change; his strategy was rather ‘to sow doubt about where oil companies fit into the blame game’.149 He argued that the cause of climate change is not the production and extraction of oil and gas but ‘the way people are living their lives’.150 This argument apparently swayed the judge, who dismissed the proceedings in June 2018 on the basis that ‘the problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case’. In his ruling, he also suggested that it might not be fair to ‘ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded’.151 This decision is currently under appeal.152

The narrative of the corporate villain If, as Weaver and Kysar have argued, the Urgenda and Juliana cases are telling a narrative of environmental apocalypse wherein redemption still lies at hand,153 the current lawsuits against the Carbon Majors are constructed around the narrative of the corporate villain. In 2012, renowned activist and writer Bill McKibben, in explaining the rationale for 350.org’s global fossil fuel divestment campaign, described the fossil fuel industry as ‘Public Enemy Number One to the survival of our planetary civilization’.154 It is arguable that there are inherent dangers in constructing a legal narrative of blame focused upon corporations. This narrative deflects attention away from the complicity of all carbon users, the daunting challenge of global transformative change, and the need for effective, transnational, mitigation policies.

148 People of the State of California v BP PLC (ND Cal, No C-17-0611-WHA), Defendants’ Motion to Dismiss; Memorandum of Points and Authorities, 20 March 2018, 2–3. 149 Quoted in Sarah Jeong and Rachel Becker, ‘Chevron’s Lawyer Speaking for Major Oil Companies, Says Climate Change Is Real And It’s Your Fault’, The Verge (online, 22 March 2018) . 150 Quoted in Kurtis Alexander, ‘People Cause Climate Change, But Don’t Blame Big Oil, Industry Tells Judge’, San Francisco Chronicle (online, 21 March 2018) . 151 Quoted in Sudin Thanawala, ‘US Judge Throws Out Climate Change Lawsuits against Big Oil’, Bloomberg (online, 26 June 2018) . 152 Karen Savage, ‘San Francisco, Oakland Appeal Dismissal of Climate Lawsuits’, Climate Liability News (online, 13 March 2019) . 153 Weaver and Kysar (n 5) 351–4. 154 Bill McKibben, ‘Global Warming’s Terrifying New Math’ (19 July 2012) The Rolling Stone .

54  Climate catastrophism and legal aporia There is clear evidence of duplicity and ongoing obfuscation on the part of the Carbon Majors and undoubtedly these corporate tricksters can and should play a key role in climate adaptation initiatives. Nevertheless, legal actions that hold the Carbon Majors to account for their contribution to greenhouse gas emissions will not necessarily assist with requisite social and economic adjustments. As the IPCC has made clear in its 2018 Special Report, the 1.5 degree modelled pathways which are most consistent with sustainable development goals necessitate lifestyle changes in the form of ‘low energy demand … low material consumption, and low GHG-intensive food consumption’:155 in other words, requirements involving large-scale individual adaptation, particularly in the Global North. In a recent study, the authors have concluded that reducing the significant contribution that the global food system, for instance, makes towards greenhouse gas emissions necessitates widespread dietary adjustments on the part of individuals.156 Author Nathaniel Rich adopts a more nuanced approach to corporate complicity and responsibility for climate change. He agrees that ‘the dominant narrative’ places the fossil fuel industries in the role of villain, a role that they have played with ‘comicbook bravado’.157 He does not attempt to absolve these corporate players from blame in relation to climate policy failure over the last 25 years. He maintains, however, that during the critical decade, from 1979 to 1989, when the science on climate change was made public and it was still possible to break ‘our suicide pact with fossil fuels’, some of the major fossil fuel industry players attempted to understand the crisis and contemplate possible solutions.158 Their extensive ‘disinformation campaigns’ began only after James Hansen’s historic testimony before Congress in 1988. He argues that corporate ‘villain[s]’, despite their ‘mustache-twirling depravity’,159 cannot be held solely responsible for the failure to achieve concerted international action on climate change in that decade nor, despite their documented campaigns of deceit and obfuscation, for that ongoing failure in subsequent decades. Recent philosophical developments resonate with acknowledgments of the multi-agential and ‘wicked’, in the sense of complex, nature of climate change. The arguments of new materialists such as Jane Bennett do not necessarily assist litigants seeking remedies from the major players in the fossil fuel industry on the basis of their causal role in climate change. This is despite the fact that Bennett’s insights into the complex interplay of human and nonhuman forces seem particularly appropriate to the climate change phenomenon. Bennett’s philosophy of vibrant materialism is, in part, a political project designed to enhance

55 IPCC Special Report (n 18) 26. 1 156 Marco Springmann et al, ‘Options for Keeping the Food System within Environmental Limits’ (2018) 562 (October) Nature 519. 157 Nathaniel Rich, ‘Losing Earth: The Decade We Almost Stopped Climate Change’ (1 August 2018) The New York Times Magazine . 158 Ibid. 159 Ibid.

Climate catastrophism and legal aporia  55 ecological sensitivity. However, she acknowledges that her focus on the agency of assemblages deflects attention away from individual blame.160 She writes that: In emphasizing the ensemble nature of action and the interconnections between persons and things, a theory of vibrant matter presents individuals as simply incapable of bearing full responsibility for their effects.161 In a posthumous publication, Australian philospher Val Plumwood, self-­ identifying as an animalist materialist, also wrestled with the concept of human and nonhuman agency within an ecological framework. She wrote that the ecological crisis demanded a disassembling of the key tenets of modernist reductionism, with its ‘narratives of the empire of man over mere things’,162 and recognition of the ‘possibility of creative, mindful matter’.163 This philosophical position of asserting nature itself to be ‘the domain of agency’164 does not sit well with the establishment of a chain of legal responsibility between the activities of the Carbon Majors and climate change. As Ariel Salleh has asked: ‘what happens politically, if the fashionable posthuman word “actant” replaces the intentional “agent”?’165 Posthumanist theorist Karen Barad, however, provides a different perspective in which acknowledgment of nonhuman agency or posthuman actants does not necessarily detract from legal accountability. She has written that: Learning how to intra-act responsibly within the world means understanding that we are not the only active beings – though this is never justification for deflecting that responsibility onto other entities. The acknowledgment of nonhuman agency does not lessen human accountability; on the contrary, it means that accountability requires that much more attentiveness to existing power asymmetries.166 Reconciling the multi-agential nature of climate change with legal concepts of responsibility and causation presents a major challenge for those seeking to sue the Carbon Majors. Assuming that such a reconciliation is possible, the awarding of damages, even in large amounts, does not necessarily assist with or promote mitigation efforts. Mega-corporations are unlikely to cease their profit-making activities in the event that damages are awarded; it is more probable that these 60 Jane Bennett, Vibrant Matter. A Political Ecology of Things (Duke University Press, 2010) 38. 1 161 Ibid 37 (emphasis in original). 162 Val Plumwood, ‘Nature in the Active Voice’ (2009) 46 Australian Humanities Review 113, 120. 163 Ibid 125. 164 Ibid 126. 165 Ariel Salleh, ‘The Anthropocene: Thinking in “Deep Geological Time” or Deep Libidinal Time?’ (2016) 6(3) International Critical Thought 422, 431. 166 Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter (Duke University Press, 2007) 219.

56  Climate catastrophism and legal aporia activities would intensify to offset the costs of litigation. Attaching monetary consequences to corporate contributions to climate change is still, in essence, playing by the rules of the marketplace and corporate tricksters are skilled at playing by and with these rules. This throws up an important question: are there more effective legal strategies that can and should be adopted in relation to the Carbon Major tricksters, in order to curtail their contribution to global greenhouse gas emissions and hence to climate change?

Corporate criminality Civil actions against the Carbon Majors have thus far foundered. Criminal actions pose even more difficulties, given the more stringent burden of proof and evidentiary issues arising in relation to the chain of causation and intent. Nevertheless, it is worth considering the possible extrapolation of existing criminal offences to encompass prosecution of such emitters for the death and suffering to come, or even for the death and suffering already experienced. There is consensus that some of the likely future effects of runaway climate change include mass displacement, disease, and conflict arising from rapidly diminishing resources. This means climate-related deaths, in increasingly large numbers. In fact, such deaths are already occurring. As already mentioned in the previous chapter, an analogy between the Holocaust and climate change has been drawn by James Hansen, who controversially stated in 2007 in testimony before the Iowa Utilities Board that: If we cannot stop the building of more coal-fired power plants, those coal trains will be death trains – no less gruesome than if they were boxcars headed to crematoria, loaded with uncountable irreplaceable species.167 He later apologised for any pain caused to readers. Yet, by way of this analogy, it is worth noting that the origins of the offences of crimes against humanity and genocide lie in the Holocaust; prior to World War II, they were not recognised as crimes. Philippe Sands has documented the intensely personal journey of the two Jewish lawyers who argued for the incorporation of these new offences into international human rights law in the wake of World War II.168 Sands’ account raises interesting questions for lawyers and activists seeking to hold the Carbon Majors to account for their contribution to climate change impacts: should they engage in similar campaigns for the extension of such offences to capture the activities of the Carbon Majors and their directors, or alternatively for the creation of other offences to cover the corporate complicity in the future 167 Quoted in James Randerson, ‘Comparing Climate Change to the Holocaust’, The Guardian (online, 1 December 2007) . 168 Philippe Sands, East West Street. On the Origins of Genocide and Crimes against Humanity (Weidenfeld and Nicolson, 2016).

Climate catastrophism and legal aporia  57 deaths of many millions? There have already been suggestions that such crimes are applicable in the context of the climate crisis. In 2015, the Marshall Islands’ Foreign Minister Tony de Brum, without specifying the identity of the perpetrators, described forced future climate migration as cultural genocide.169 Politicians have also been identified as the perpetrators of these crimes. The United Kingdom group Rising Up UK, in announcing the launch of its Extinction Rebellion campaign of mass civil disobedience on 31 October 2018, postulates on its website that ‘those who govern us intend to kill our children and are presently engaged in a crime against humanity’ and also refers to the ‘genocidal behaviour’ of ‘elites and politicians’.170 Is it timely, appropriate or possible to prosecute the directors of the Carbon Majors now for their participation in the most heinous of crimes, particularly in light of mounting evidence that they contributed to the Great Acceleration in full knowledge of the dangerous consequences of their actions? Can or should we, to paraphrase Deborah Bird Rose in her discussion of the mass genocides arising from colonisation in Australia,171 bring the future dead into the legal dialogue, and what sort of legal dialogue can take place between our generation and the future or even present generations who may live and die in wild time? There are, after all, precedents in post-September 11 terrorist trials and in various pieces of Western anti-terrorism legislation for pre-emptive prosecution of offenders, whose crimes are nebulous, future crimes of terror that have not yet occurred. This is an underdeveloped area of research but one that may be worth exploring, given that criminal convictions may act as a far more effective deterrent for the Carbon Majors than damages awards. The Carbon Majors and their directors are not only arguably responsible for future human deaths but, given the contribution of climate change to the extinction of nonhuman species and the wholesale obliteration of ecosystems, could also be charged with ecocide; barrister Polly Higgins172 and other activists have been campaigning for many years to have ecocide recognised as an international crime prosecutable before the International Criminal Court.

The corporate Trojan horse Chief Justice Brian Preston has described actions in consumer law and corporations law as the ‘next phase’ in the expanding territory of climate change

169 ‘Climate Change Migration Is Cultural Genocide – Tony de Brum’, Dateline Pacific (Radio NZ, 6 October 2015) . 170 Extinction Rebellion (Web Page) . 171 Deborah Bird Rose, Reports from a Wild Country. Ethics for Decolonisation (University of New South Wales Press, 2004) 30. 172 See Polly Higgins, Eradicating Ecocide. Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws Needed to Eradicate Ecocide (Shepheard-Walwyn, 2010).

58  Climate catastrophism and legal aporia litigation.173 Various scholars174 have highlighted possibilities for addressing corporate accountability for climate change from within the corporate structure itself. In conjuring up a corporate Trojan horse, a trickster narrative comes into play. Reverting to trickster tactics in order to tackle the immorality of corporate tricksters has an undeniable appeal and there is a clear element of shape shifting when shareholders, as part of the corporate body, morph into external irritants. Activist shareholders, acting within the corporate structure, are initiating and voting for resolutions designed to improve corporate accountability for climate change related risks.175 Even mainstream investors, including those in the powerful Climate Action 100+ group,176 are seeking better management of climate risks by large corporate players.177 Corporations have no duty of care to the public in the way that governments have a duty of care to their citizenry. They are, however, accountable to shareholders and investors. Activist shareholders are also initiating lawsuits intended to highlight and interrogate the widespread failure on the part of corporations and their managing bodies to address and respond to climate change risks. Examples of such Trojan horse tactics can be found in the Australian litigation launched in 2017 against the Commonwealth Bank of Australia by two shareholders, and the lawsuit currently underway against superannuation fund Retail Employees Superannuation Trust (REST) by a member of the fund, Mark McVeigh. The action by Guy and Kim Abrahams against the Commonwealth Bank, alleging that the bank was in breach of the Corporations Act 2001 (Cth) due to non-disclosure of climate change related risks in its 2016 annual report, was discontinued after the Bank released its 2017 report; for the first time, the Bank acknowledged the risks posed by climate change to its operations and stated that it would be assessing risks through climate

1 73 Brian Preston, ‘Mapping Climate Change Litigation’ (2018) 92(10) Australian Law Journal 774, 788. 174 See, eg, Grear (n 13) 128; Sally Wheeler, ‘The Corporation and the Anthropocene’ in Kotze (ed) (n 93) 289, 302. 175 See, eg, Marianne Lavalle, ‘Exxon Shareholders Approve Climate Resolution: 62% Vote for Disclosure’, Inside Climate News (online, 31 May 2017) ; Ben Smee, ‘Whitehaven Coal: Activist Shareholders To Force Vote On Climate Strategy’, The Guardian (online, 25 October 2018); . 176 ‘Global Investors Driving Business Transition’, Climate Action 100+ (Web Page) ; see, eg, Adam Vaughan, ‘BP to Explain How Business Chimes with Paris Climate Deal’, The Guardian (online, 1 February 2019) and Lisa Cox, ‘Glencore Pressured to Withdraw from New Coalmines to Prove Climate Change Commitment’, The Guardian (online, 21 February 2019) . 177 Stephanie Venuti and Martijn Wilder, ‘Obligations on Australian Companies to Address Climate Change’ (2018) 92(10) Australian Law Journal 789, 797.

Climate catastrophism and legal aporia  59 change scenario analysis throughout 2018.178 McVeigh’s 2018 lawsuit against REST similarly relates to an alleged failure to disclose climate change business risks on the part of the fund and consequent breach of the Corporations Act. In a widely circulated 2016 Memorandum of Opinion, Australian barristers Noel Hutley and Sebastian Hartford Davis advised that climate change risks constitute foreseeable risks of harm to the interests of Australian companies and that, therefore, company directors who fail to consider climate change risks could be found liable in the future for breaching their duty of care and diligence under section 180 of the Corporations Act 2001 (Cth).179 The Memorandum of Opinion was described as both ‘legally sound’ and ‘entirely unremarkable’ by one of the Australian Securities and Investments Commission’s Commissioners, John Price, in June 2018.180 In a Supplementary Memorandum of Opinion, released in March 2019, Hutley and Davis referred to an exponential growth in the risk of exposure of individual company directors to climate change litigation181 and stated that ‘regulators and investors now expect much more from companies than cursory acknowledgement and disclosure of climate change risks’.182 The authors of another legal opinion, commissioned by Market Forces and released in June 2017,183 advised that the same duties and obligations apply to trustees who manage superfunds.184

Conclusion In the face of the ‘business as usual’ approach of governments, an ever-­ growing group of litigants are seeking effective responses from the judiciary to the exceptionalism of climate change. The practical outcomes depend in

178 Gareth Hutchens, ‘Commonwealth Bank Shareholders Drop Suit over Nondisclosure of Climate Risks’, The Guardian (online, 21 September 2017) . 179 See Noel Hutley and Sebastian Hartford Davis, Memorandum of Opinion: Climate Change and Directors’ Duties (The Centre for Policy Development and the Future Business Council, 7 ­October 2016) . 180 John Price, ‘Climate Change’ (Keynote Address, The Centre for Policy Development: Financing a Sustainable Economy, 18 June 2018) . 181 Noel Hutley and Sebastian Hartford Davis, Supplementary Memorandum of Opinion: Climate Change and Directors’ Duties (The Centre for Policy Development, 26 March 2019) 9 . 182 Ibid 8. 183 Noel Hutley and James Mack, Memorandum of Opinion: Superannuation Fund Trustee Duties and Climate Change Risk, 15 June 2017 184 Discussed in Venuti and Wilder (n 177) 794–5.

60  Climate catastrophism and legal aporia part upon the judiciary’s perception of their role and responsibilities in relation to climate  change and the capacity of the judiciary to compel governments to act on climate change.185 The litigation is also contributing to the rapid evolution of climate change narratives. Climate litigation has spread well beyond the narrow confines of environmental law, and the constitutional, civil rights, public trust, tortious and corporate dimensions of climate change are highlighted in current lawsuits. Novel and contentious aspects to this ongoing litigation include the causal links between activities and decisions and current and future climate change impacts, the allocation of agency and responsibility for climate change, the diverse range and ages of litigants, and the global nature of what is at stake. Atmospheric public trust litigation poignantly highlights the threat which climate change represents for the next generation. In the next chapter, I look more closely at the tale of the children in an age of climate disruption, focusing on this litigation, on youth activism and on the significance of the child in climate fiction. Tortious, constitutional and civil rights litigation bring to the foreground the havoc which climate change has already caused and will increasingly cause for human populations, and the responsibilities of governments to take action to avert the worst impacts of climate change on their citizenry. In Chapter 4, I consider the developing climate change narratives of both human and nonhuman rights. Given the limitations of courtroom narratives in the context of the climate crisis, it is tempting to argue that climate catastrophism is best addressed outside legal framings rather than within them. In Chapter 6, I turn to a courtroom narrative that does demand legal recognition of climate change as a catastrophic phenomenon for humanity and nonhuman species. This account appears in what might appear to be an unlikely forum, the criminal trials of climate activists, in the form of the defence of necessity. The twist to this particular legal narrative is the demand for retrospective judicial validation of deliberate law-breaking on the basis that the urgency and extent of the climate crisis and the inadequacy of legal and political solutions justify the resort to extra-legal measures. However, such arguments of exceptionalism can be used by the State as well as by activists, and pose a potent threat to the rule of law. The potential for governments to disregard existing legal constraints in responding to the climate crisis, the ensuing impact on human rights, and the possible parameters of a climate state of exception are also explored in this chapter.

185 Weaver and Kysar describe this as the ‘forg[ing of] a new jurisprudence of catastrophe’: Weaver and Kysar (n 5) 354.

3 Telling the tale of the children

The concept of intergenerational equity, with its concomitant requirement of intergenerational responsibility, forms a critical part of any anthropocentric reading of the climate change crisis. In this chapter, I address some of the legal, fictional and activist initiatives that have framed, and continue to frame, climate change as a tale of the children. In these climate change narratives, the paramount focus is on the climate change legacy bequeathed to today’s youth and future human generations. From an anthropocentric perspective, our most powerful fears about climate change crystallise in the figure of the human child. As Adeline Johns-Putra has written, reflecting on the centrality of the child in climate change discourse: Not only does the figure of the child metonymically represent future generations, its status as the ultimate, even primal subject of protection, shelter, and guardianship also means that it readily speaks to contemporary anxieties about whether we are doing enough to protect, shelter, and safeguard that for which we are responsible – in short, whether we are caring enough.1 Politicians are not immune to these fears and anxieties, nor to the symbolic importance of the child in the climate change context; then United States Secretary of State John Kerry chose to sign the Paris Agreement in April 2016 while holding his granddaughter on his lap.2 We are compelled to ask the most difficult of questions: what experiences and encounters will our children and their children face on Hothouse Earth; what will be their quality of life; and, furthermore, what experiences will the most vulnerable of children, who are not children of the Global North, have to endure? In a recent scientific paper, James Hansen3

1 Adeline Johns-Putra, ‘“My Job Is to Take Care of You”: Climate Change, Humanity and Cormac McCarthy’s The Road’ (2016) 62(3) Modern Fiction Studies 519, 523. 2 Suzanne Goldenburg and Arthur Neslen, ‘World Governments Vow to End Fossil Fuel Era at UN Climate Signing Ceremony’, The Guardian (online, 23 April 2016) . 3 Hansen’s concerns for his own grandchildren are apparent in his choice of title for his 2009 book on the manifold threats posed by climate change: James Hansen, Storms of My Grandchildren.

62  Telling the tale of the children and his co-authors have concluded that ‘the burden placed on young people and future generations may become too heavy to bear’.4 The Children’s Trust lawsuits, in which young plaintiffs have argued that the atmosphere forms part of the public trust and that governments have an obligation to protect it for present and future generations, commenced in the United States in 2011; these lawsuits have triggered a wave of youth climate lawsuits in other nations. The most prominent of the United States lawsuits is the ongoing Juliana case. Such proceedings carry enormous symbolic significance, in that the youth litigants represent the future generations who will inherit a social and geographical landscape transfigured by climate disruption. At the same time, the litigants clearly articulate in their pleadings the present and future harm that they personally are experiencing and will experience as a consequence of climate change. John Knox, when serving as the United Nations Special Rapporteur on human rights and the environment, noted in a 2018 report that ‘discussions of future generations [must] take into account the rights of the children who are constantly arriving, or have already arrived, on this planet’ and continued: We do not need to look far to see the people whose future lives will be affected by our actions today. They are already here.5 Damage inflicted by climate change is frequently seen as a legacy of future rather than present generations but youth climate litigants and activists bring climate change into sharp focus as our children’s problem. In this chapter, I also reflect upon the symbolic and political power of contemporaneous youth climate activist movements. The connections between youth activism and youth litigation are clear, with actors such as Jamie Margolin, founder of youth climate activist group Zero Hour, and Xiuhtezcatl Martinez, Earth Guardians Youth Director, participating in both litigation and activism. Some youth organisations adopt both legal and activist strategies; for example, Nature and Youth, which is one of Norway’s largest youth environmental organisations, has taken the Norwegian government to court over its plans for oil and gas drilling in the Barents sea and also trains for and participates in direct action offshore protests.6 Zero Hour, which led a youth climate march in ­Washington in July 2018 and was instrumental in the organisation of the United States school climate strike in March 2019, collected over 30,000 signatures for The Truth about the Coming Climate Catastrophe and Our Last Chance to Save Humanity (Bloomsbury, 2009). See Johns-Putra (n 1) 523. 4 James Hansen et al, ‘Young People’s Burden: Requirement of Negative CO2 Emissions’ (2017) 8 Earth System Dynamics 577, 596. 5 John H Knox, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc A/ HRC/37/58 (24 January 2018) 18. 6 Thomas Nilsen, ‘This Is How Several Hundred Norwegian Youth Prepare to Meet Arctic Oil Drilling’, The Barents Observer (online, 3 August 2017) .

Telling the tale of the children  63 an online petition in support of the Juliana litigants; through its parent organisation, Power Shift Network, it then lodged a Young People’s amicus brief in the interlocutory appeal in that case.7 Both litigious and activist initiatives are spearheaded by charismatic, articulate teenagers and young adults publicly contesting the failure of governments to legislate effectively for their survival. At the heart of these initiatives is the same sobering message: we, their elders, are failing to protect our children and they are therefore compelled to take steps to protect themselves. This is a message with a profound impact. In failing to meet our intergenerational duty of care, we are flouting one of the most basic and primeval of impulses. Novelist Ian ­McEwan has observed that ‘we are shaped by our history and biology to frame our plans within the short-term, within the scale of a single lifetime’.8 However we are also shaped by our history and biology to care, deeply and profoundly, about our children and their future. In the final part of this chapter, I consider the tale of the children being told in climate fiction. Here I focus upon the fate of children in an age of climate disruption and the recurrent themes of intergenerational guilt, intergenerational responsibility and intergenerational reproach.

Litigious children The tale of the children can be, and often is, told in adult voices. It is common for adults to speak for children. Some countries have appointed advocates and representatives for future generations.9 Adults, in recounting the tale of children in an age of climate disruption, frequently verbalise their guilt and a daunting sense of responsibility. Given the significance of biological bonds, these emotions are most intensely experienced with respect to the speaker or writer’s own children or grandchildren. In a sobering essay entitled ‘Raising a Daughter in a Doomed World’, writer Roy Scranton reflects on his mixed emotional response to the realisation that he has brought a child into a ‘broken world’. He writes that ‘[m]y partner and I had, in our selfishness, doomed our child to life on a dystopian planet, and I could see no way to shield her from the future’.10 As journalist David Wallace-Wells has observed, there can increasingly be found amongst the well-to-do classes in

7 Dana Drugmand, ‘Youth Climate Movement Gains Steam, and Signatures, to Support Landmark Case’, Climate Liability News (online, 20 February 2019) ; Dana Drugmand, ‘More Than a Dozen Groups File Briefs in Support of Kids Climate Suit’, Climate Liability News (online, 4 March 2019); . 8 Ian McEwan, ‘The Hot Breath of Civilisation’, The Sydney Morning Herald (Sydney, 8–9 March 2008) 36. 9 For instance, there is a Committee for the Future in the Finnish Parliament and a Commissioner for Future Generations in Wales. Hungary has an Ombudsman for Future Generations. From 2001 to 2006, Israel had a Commission for Future Generations. 10 Roy Scranton, We’re Doomed. Now What? (Soho Press, 2018) 320.

64  Telling the tale of the children the Global North similar expressions of concern and, furthermore, recognition of the potential contribution of these additional ‘little consumption machine[s]’ to the problem.11 The hugely influential Democratic congresswoman Alexandria Ocasio-Cortez has queried the legitimacy of decisions to reproduce at this pivotal point in human and planetary time.12 Parental voices can also convey messages of defiance, reassurance and hope to children in the frontline of climate change. In September 2014, Marshall Islander poet Kathy Jetnil-Kijiner received a standing ovation when she performed her poem Dear Matafele Peinam, written for her seven-month-old daughter, at the Opening Ceremony of the United Nations Secretary-General’s Climate Summit. The Marshall Islands are exceptionally vulnerable to sea level rise but, in her poem, Jetnil-Kifiner promised her daughter that ‘no one will come to devour you’.13 The audience, consisting of ‘world leaders, diplomats and corporate powerbrokers’, was visibly moved. The standing ovation was an exceptional moment in the proceedings of the United Nations.14 In boldly challenging the ‘greedy whale[s] of … company[ies] sharking through political seas’, ‘businesses with broken morals’ and ‘blindfolded bureaucracies’15 on behalf of her daughter, Jetnil-Kijiner, a diminutive figure dressed in traditional costume, had tapped into the rich seam of intergenerational and intragenerational guilt and responsibility. It is, however, young people themselves who are most powerfully conveying the tale of the children in an age of climate change. In the climate lawsuits initiated by children and youth, we hear the authentic voices of the children as they turn to adult forums to safeguard their own future. The legal outcomes of these lawsuits are critically important but the lawsuits also have significance as a mechanism through which the young litigants can publicly articulate, with persistence and power, their climate change fears. It is, in large part, the youth of the litigants that makes these stories particularly compelling. The emphasis on and power of narrative in the documents produced by young litigants evoke the narratives of past atrocities and human rights violations that have been, and are, increasingly told by victims in various international arenas and forums.16 There is, however, a key difference: the child litigants in ­climate 11 David Wallace-Wells, An Uninhabitable Earth: A Story of the Future (Allen Lane, 2019) 135. 12 Matthew Taylor, ‘Is Alexandria Ocasio-Cortez Right to Ask If the Climate Means We Should Have Fewer Children?’, The Guardian (online, 28 February 2019) . 13 Kathy Jetnil-Kijiner, Dear Matafele Peinam (2014) . 14 Rosemary Neill, ‘Marshall Islands Poet Kathy Jetnil-Kijiner Fights for Her Country’, The Australian (online, 2 March 2018) . 15 Jetnil-Kijiner (n 13). 16 Julie Stone Peters, ‘“Literature”, the “Rights of Man,” and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony’ (2005) 17(2) Yale Journal of Law and the Humanities 253, 253.

Telling the tale of the children  65 lawsuits reference present losses and deprivations17 but also focus on the hardships and atrocities to come. Hence, these narratives do not serve functions of redress, healing or closure.18 They are intended to warn and to prevent, to compel governments to take effective action. Each litigant shares his or her personal narrative that makes climate change real and a source of fear and trepidation, even for the Juliana group of children, teenagers and young adults in the most powerful nation in the world. Their narratives, set out in the complaint, allude to the diverse and damaging nature of past, present and future climate change impacts on their homes, surrounding environment, health and activities. Many of the young litigants suffer from allergies and/or asthma, conditions that are aggravated by climate change.19 One young litigant, Miko V, currently lives in Oregon but was born in the Marshall Islands and ‘fears she will never be able to travel back to the Marshall Islands as she intends to because the islands will likely be underwater in the future’.20 Jaime B, a member of the Navajo Nation, was forced to move from the Navajo Nation Reservation due to water scarcity.21 Levi D, who was eight when the complaint was filed, lives on a vulnerable barrier island in Florida that separates the Indian River lagoon from the Atlantic Ocean.22 A supplemental declaration filed in 2016 by then 13-year-old Jayden F contains a particularly stark narrative. Justice Aiken of the Oregon District Court 23 and commentators24 have been understandably struck by, and quoted from, her graphic description of the flooding of her Louisiana home: Flood waters were pouring into our home through every possible opening. We tried to stop it with towels, blankets, and boards. The water was flowing down the hallway, into my Mom’s room and my sisters’ room. The water drenched my living room and began to cover our kitchen floor. Our toilets, sinks, and bathtubs began to overflow with awful smelling sewage because

17 Michael C Blumm and Mary Christina Wood point out that nearly 30 pages of the litigants’ complaint in the Juliana case set out specific harm already experienced by them as a consequence of climate change; Michael C Blumm and Mary Christina Wood, ‘No Ordinary Lawsuit: Climate Change, Due Process and the Public Trust Doctrine’ (2017) 67(1) American University Law Journal 1, 34. 18 These have been identified as some of the functions of narratives of past atrocities in various arenas: Peters (n 16) 254. 19 Juliana v United States (D Or, No 6:15-cv-01517-TC), First Amended Complaint for Declaratory and Injunctive Relief, 9 October 2015 [28], [37], [41], [46], [48], [56], [64], [67], [72], [75], [85]. 20 Ibid [58]. 21 Ibid [65]–[66]. 22 Ibid [82], [84]. 23 Juliana v United States, 217 F Supp 3d 1224, 1244 (D Or 2016). 2 4 This passage is quoted, for instance, in Michael D Wilson, ‘Climate Change and the Judge as ­Water Trustee’ (2018) 48(3) Environmental Law Reporter 10235, 10240 and referenced in Blumm and Wood (n 17) 35–6.

66  Telling the tale of the children our town’s sewer system also flooded. Soon the sewage was everywhere. We had a stream of sewage and water running through our house.25 In this document, Jayden described the destruction of her home and town and the widespread illnesses that followed exposure to the polluted floodwaters. She stated: ‘I am scared. But I will not back down. We will conquer climate change’.26 In a media interview, Jayden has explained how isolated she is from her peers and former friends as a youth climate litigant in a conservative state in which the oil and gas industry is one of the largest employers.27 The enormous symbolic value in young people suing their government and President increased exponentially when Donald Trump took power; the lawsuit subsequently attracted headlines such as ‘The Plucky Millenials Racing to Save the World from Donald Trump’, 28 ‘Meet the Kids Suing the US Government for Ruining the Earth for Future Generations’29 and ‘Trump Named Climate Villain Number One in Landmark Youth Suit’.30 The lawsuit was commenced in the time of the Obama administration and the audacity in children suing the United States President and the government captured the public imagination even then. However, the narrative of the Juliana litigation became more compelling with the addition of a far more plausible climate ‘villain’, in the form of President Trump as defendant. President Trump’s efforts to extricate himself from the lawsuit prevailed two weeks before the scheduled trial date at the end of 2018, when Judge Aiken granted a motion to dismiss him as defendant. Another intriguing storyline in the extensive pre-trial proceedings involves corporate tricksters. At the outset, three associations representing most large fossil fuel companies, the National Association of Manufacturers, American Fuel and Petrochemical Manufacturers and American Petroleum Institute, sought leave to intervene on the basis that the lawsuit directly threatened their businesses. They were granted defendant status in January 2016. In 2017, they filed motions requesting the court’s permission to withdraw from the litigation; this request was granted by court order in June.

25 Juliana v United States (D Or, No 6:15-cv-01517-TC), Declaration of Jayden F In Support of Plaintiffs’ Opposition to Defendants’ Motions to Dismiss, 7 September 2016 [8]. 26 Ibid [21]. 27 Neela Banerjee and Zahra Hirji, ‘Fighting Climate Change Can Be a Lonely Battle in Oil Country, Especially For a Kid’, Inside Climate News (online, 13 June 2017) . 28 Abby Rabinowitz, ‘The Plucky Millenials Racing to Save the World from Donald Trump’, The New Republic (16 November 2016) . 29 Dana Varinsky, ‘Meet the Kids Suing the US Government for Ruining the Earth for Future Generations’, Business Insider Australia (online, 20 November 2016) . 30 Lauren McCauley, ‘Trump Named Climate Villain Number One in Landmark Youth Suit’, Common Dreams (online, 9 February 2017) .

Telling the tale of the children  67 The General Counsel for the National Association of Manufacturers attributed the reversal to changed ‘dynamics’ that meant that their participation was no longer necessary to protect industry and workers.31 Doubling back and reversal is certainly a classic trickster attribute.32 Tricksters are also renowned for their duplicity and stealthiness.33 Julia Olson, who acts for the plaintiffs, has attributed the decision to withdraw to a desire to avoid discovery and the release of ‘potentially damaging information’.34 Discovery requests would have exposed ‘the longstanding, but largely surreptitious, relationship between the government and the fossil fuel industry’;35 even with the withdrawal of the intervenor corporations, the trial, should it take place, may well expose the collusion between public officials and industry groups.36 The publicity surrounding the Juliana case dwarfs the coverage of the other Children’s Trust lawsuits. The identity of the high-profile defendants contributes to this. The inclusion of James Hansen in the list of plaintiffs, as guardian for future generations, is another unusual feature. Although Hansen has filed amicus curiae briefs setting out his concerns in the successful Future Generations lawsuit in Colombia discussed later in this section and in other youth climate lawsuits, he has not previously been a litigant. In addition, the federal lawsuit, in engaging with the evolving climate change narrative of human rights by raising constitutional issues, heralds a new direction in the Children’s Trust lawsuits; subsequent lawsuits at State level are also now similarly combining public trust and constitutional rights arguments.37 Despite aspects of the Juliana case that are sui generis, it forms part of the now substantial body of Children’s Trust lawsuits that commenced in 2011. There have been a host of precursors to Juliana and other such lawsuits are ongoing. Youth litigants are arguing that the federal and State governments in the United States have a sovereign fiduciary obligation to protect the atmosphere on their behalf, and that the failure of governments to effectively reduce greenhouse gas emissions amounts to a breach of these obligations. These lawsuits have met with varying degrees of success since they commenced in 2011. An earlier lawsuit against the federal government was dismissed on 31 May 2012, with the District Court for the District of Columbia holding that the

31 Neela Banerjee, ‘Fossil Fuel Groups Want Out of Children’s Climate Change Lawsuit’, Inside Climate News (online, 26 May 2017) . 32 Lewis Hyde, Trickster Makes This World. Mischief, Myth and Art (Farrar, Strauss and Giroux, 1998) 49. 33 Ibid 45, 71. 3 4 Banerjee (n 31). 35 Blumm and Wood (n 17) 59–60. 36 Ibid 60. 37 For instance, in Reynolds v Florida (Fla Cir Ct, No 37 2018 CA 000819), commenced in April 2018, eight youth litigants, including Levi D who is a litigant in the Juliana case, are arguing that the State of Florida, its Governor and various State departments have caused them injury due to their ‘deliberate indifference to their fundamental rights’.

68  Telling the tale of the children public trust doctrine was a matter of state rather than federal law and that, in any event, the public trust claim was displaced by the Clean Air Act.38 An appeal was unsuccessful and the United States Supreme Court refused to hear the case, denying the plaintiffs’ petition for a writ of certiorari. On the other hand, in July 2012, a Texan judge was prepared to hold that the atmosphere does form part of the public trust in a lawsuit initiated by Angela Bonser-Lain and the parents of three children.39 Another partial victory for the group occurred shortly after the Texan ruling, with the decision of a judge in New Mexico to allow a lawsuit to proceed to hearing.40 Neither of these lawsuits was ultimately successful. While some lawsuits directly address each government’s failure to meet its public trust obligations, others have involved judicial review of petitions in which the child and teenage petitioners have asked State agencies for appropriate reductions in greenhouse gas emissions. In June 2015, an Oregon court ordered the Washington State Department of Ecology to reconsider its denial of such a petition.41 The Department affirmed its denial of the petition, advising that it was initiating a rulemaking to adopt a greenhouse gas emissions rule. On this basis, the Court rejected the petitioners’ appeal. The judge, however, was prepared to find that the Department had atmospheric public trust obligations, that climate change is a reality, and that ‘the very survival [of the petitioners] depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emission of GHG’s’.42 When the Department withdrew its proposed rule in February 2016, the children obtained a court order requiring the Department to promulgate an emissions reduction rule, to make recommendations to the legislature and to consult with them before doing so.43 This was reversed on appeal in September 2017. Before the appeal was heard, in November 2016, the same judge in the Washington Superior Court issued an order permitting the children to raise the public trust doctrine and their constitutional right to a healthy environment in amended pleadings.44 38 Alec L v Jackson, 863 F Supp 2d 11 (2012). 39 For a discussion of the case in Texas, Bonser-Lain v Texan Commission on Environmental Quality (D Tex, No D-1-GN-11-002194), see Caroline Cress, ‘It’s Time to Let Go: Why the Atmospheric Trust Won’t Help the World to Breathe Easier’ (2013–14) 92 North Carolina Law Review 236, 263–4. 40 For a discussion of the case in New Mexico, Sanders-Reed v Martinez (D NM, No D-101-CV-2011-01514), see Kasssandra Castillo, ‘Climate Change and the Public Trust Doctrine: An Analysis of Atmospheric Trust Litigation’ (2014–15) 6 San Diego Journal of Climate and Energy Law 221. 41 Foster v Washington Department of Ecology (Wash Sup Ct, No 14-2-25295-1 SEA), Order remanding Department of Ecology’s denial of petition for rulemaking, 23 June 2015. 4 2 Foster v Washington Department of Ecology (Wash Sup Ct, No 14-2-25295-1 SEA), Order affirming the Department of Ecology’s denial of petition for rulemaking, 19 November 2015. 43 Our Children’s Trust, ‘Youths Secure Second Win in Washington State Climate Lawsuit’ (Media Release, 29 April 2016) . 4 4 Foster v Washington Department of Ecology (Wash Sup Ct, No 14-2-25295-1 SEA), Order denying motion for order of contempt and granting sua sponte leave to file amended pleading, 19 December 2016.

Telling the tale of the children  69 Youth climate litigation is increasingly occurring in other jurisdictions. In Uganda, Pakistan and India, children have launched lawsuits against their governments.45 In the so-called Magnolia case, two Swedish youth organisations, PUSH Sweden and Nature and Youth Sweden, together with 176 individuals, sought unsuccessfully in 2016 to challenge the government’s approval of the sale of a State-owned company’s lignite assets in Germany to a Czech energy company.46 Rights-based youth litigation is also underway, in the Nature and Youth case in Norway, the Colombian Future Generations case, the current Carvalho case against the European Union, and the youth class action against the Canadian government. Nature and Youth, in conjunction with the Greenpeace Nordic Association, was unsuccessful at first instance in its constitutional challenge to the Norwegian government’s issue of licences for oil and gas extraction in the Barents Sea; there is an appeal on foot. The Future Generations case in 2018 positioned 25 young litigants against the Colombian government, Colombian municipalities and various corporations. The young people argued that their ‘supralegal’ rights were infringed by climate change and that climate change was exacerbated by ongoing deforestation in the Colombian Amazon. The appellate judges in that case acknowledged that today’s children and future human generations are imperilled by climate change and related environmental catastrophes, finding that: Without a healthy environment, subjects of law and living beings in general will not be able to survive, let alone safeguard those rights for our children or for future generations.47 They ordered the government to create an ‘intergenerational pact for the life of the Colombian Amazon’.48 The judgment contained strong statements about the need to protect the rights of the unborn, as well as the rights of all people, animals and plants, and the obligations of the present generation with respect to ‘the unborn’, who ‘deserve to enjoy the same environmental conditions that we have’.49

45 In Uganda, four minors and Greenwatch commenced legal action against the Attorney General in 2012 and added the National Environment Management Authority as a defendant in 2015. In Pakistan, the plaintiff is seven-year-old Rabab Ali, who began the lawsuit in the Supreme Court of Pakistan in 2016. In India, nine-year-old Ridhima Pandey commenced proceedings in the National Green Tribunal in March 2017. 4 6 See Anna Martinez-Zemplén, ‘Magnolia Case. Youth NGOs and Individuals v. the Government of Sweden’, Network of Institutions for Future Generations (Document, 17 May 2017) . 47 ‘Climate Change and Future Generations Lawsuit in Colombia: Key Excerpts from the Supreme Court Decision’, DeJusticia (Post, 13 April 2018) . 48 Ibid. 49 Ibid.

70  Telling the tale of the children Children, including an association of indigenous Sami youth, and their families are amongst the 37 litigants in the Carvalho case. The case is being heard in the European General Court, part of the Court of Justice of the European Union. The litigants are seeking an injunction to compel the European Union to adopt more stringent mitigation measures. Subsequently, in late November 2018, the Canadian youth organisation ENvironnement JEUnesse sought authorisation from the Quebec Superior Court to bring a class action against the Canadian government on behalf of all Quebecan citizens aged 35 and under, on the basis that the government’s failure to introduce effective mitigation policies constitutes a violation of the rights of young people. These cases form part of an evolving narrative of rights in climate litigation, which I address in more detail in the next chapter.

Marking climate time in the courtroom Both time and timing are critical to child-centred climate lawsuits and, indeed, in all climate litigation. Chris Hilson argues that ‘future scientific time frames’, in which the dangerous effects of climate change are presented as ‘some way off in the modelled future’, and ‘policy time frames’, in which climate change is presented as an urgent problem requiring immediate action, ‘sit relatively happily together’ in such cases.50 The premise behind youth climate litigation is that there is currently a very small window of opportunity: the issue is extremely urgent but there is still time to act. This perception is clearly articulated by James Hansen in his Supplemental Declaration in the Juliana case, in which he states that: While much further delay in effective action will soon undermine a realistic chance, it is not yet too late for the federal government to act so as to protect the fundamental right of our children and future generations to a viable climate system.51 Without the requirement of urgency, the lawsuits lose much of their impetus. If the time to act has passed, the lawsuits are futile. Conveying the imperative for immediate action is one of the foremost challenges for plaintiffs and some judges have been receptive to this message. For instance, in a hearing in the Foster case in April 2016, Judge Hollis Hill acknowledged that ‘this is an urgent situation’ and continued: This is not a situation that these children can wait on. Polar bears can’t wait, the people of Bangladesh can’t wait. I don’t have jurisdiction over their needs in this matter, but I do have jurisdiction in this court, and for that reason I’m taking this action.52 50 Chris Hilson, ‘Framing Time in Climate Change Litigation’ Onati Socio-Legal Series (forthcoming). 51 Juliana v United States (D Or, No 6.15-cv-01517-TC), Supplemental Declaration of Dr James E Hansen, 5 January 2016 [5]. 52 Transcript of Proceedings, Foster v Washington Department of Ecology (Wash Sup Court, No 142-25295-1 SEA, Judge Hollis Hill, 29 April 2016) 20.

Telling the tale of the children  71 There is, however, a clear disparity between the leisurely pace at which the youth climate lawsuits progress through American and other legal systems and the available timeframe for effective action, recently put as 12 years by the IPCC in their 2018 Special Report. The laggardness in the resolution of the lawsuits is in part systemic but also in part attributable to roadblocks deliberately created by the defendants. The stalling strategies of the United States government in the Juliana case, already referred to in Chapter 2, exemplify this. The government has attempted to have the case dismissed, objecting to the Findings and Recommendation of Magistrate Judge Coffin to deny this, and then seeking unsuccessfully to appeal Judge Aiken’s order adopting those Findings and Recommendation. The federal defendants have also sought a stay of proceedings, a stay on discovery, summary judgment in their favour and, on four occasions, a writ of mandamus in the Ninth Circuit Court of Appeals. They have twice sought a stay in proceedings from the United States Supreme Court, with the second petition lodged only two weeks before the scheduled date of the trial. In December 2018, the Ninth Circuit Court of Appeals granted the government’s petition for an interlocutory appeal. At the request of the youth litigants, the Ninth Circuit Court agreed to an expedited schedule for the appeal. Given the delay in having their case heard and the urgency of the issues at stake, the young litigants also sought a preliminary injunction to prevent the granting of permits for new fossil fuel infrastructure projects until the interlocutory appeal is resolved. Delays are symptomatic of other climate litigation, although not necessarily attributable to such tenacious, pre-trial manoeuvres on the part of defendant governments. In the Urgenda case,53 for instance, the letter that effectively launched the proceedings was sent to the Dutch Prime Minister in late 2012, and the official summons against the Dutch government was filed in the District Court in the Netherlands in late 2013. The judgment was handed down in June 2015 and the appellate court’s judgment was delivered in October 2018. Six years passed between Urgenda’s formal request for mitigation and the historic outcome; this can be viewed as an unconscionable deferment in light of the rapidly diminishing timeframe for effective mitigation efforts. The government’s subsequent announcement of its intention to appeal the decision to the Supreme Court signifies further procrastination on its part. An even more extraordinary, three-year procedural delay ensued in the climate litigation commenced in Belgium against the Belgian government by a non-profit organisation, Klimaatzaak, while the relevant court decided whether to conduct the proceedings in French or in Dutch.54 One consequence of these lengthy timeframes for youth litigants is that some of the teenagers who initiate the lawsuits are or will be young adults by the time the cases are heard. Kelsey Juliana, the leading plaintiff in the Juliana case, was 19 when the action was commenced. She was 22 in October 2018, when the trial was scheduled to take place. She is, together with Ollie Chernaik, plaintiff in

53 Urgenda v Netherlands (Hague District Court, ECLI:NL:RBDHA:2015:7196, 24 June 2015); Netherlands v Urgenda (The Hague Court of Appeal, ECLI:NL:GHDHA:2018:2610, 9 October 2018). 54 See timeline of case at .

72  Telling the tale of the children another youth atmospheric public trust lawsuit brought against the state of Oregon in 2012. The Lane County Circuit Court and the Oregon Court of Appeal have handed down a number of decisions in this matter, culminating most recently in the Court of Appeal’s adverse finding55 in January 2019. The plaintiffs plan to appeal. Chernaik, then 18, pointed out at a press conference that ‘[f]or almost a decade I have been part of this case and I am upset that it has taken us so long to move through the courthouse on an issue that will not wait’.56 It is clear that all the youth climate activists behind the current wave of litigation are acutely conscious of the relevance of time. They are driven by a sense of the imminence of catastrophe and an awareness of lost time, squandered time, time rapidly running out. One of the Juliana litigants, responding to the Trump government’s third petition for a writ of mandamus, stated that ‘it is truly frightening that their priority in the face of [runaway climate change] is to waste our time and the public’s resources by desperately trying to avoid trial’.57 This sentiment is widespread amongst all young climate activists, who make frequent reference to futures forfeited and compromised by decision-makers. Jamie Margolin, founder of youth climate activist group Zero Hour, began the Instagram post in which she first proposed a youth climate march on Washington with the statement that ‘youth’s futures are being stolen from us’.58 The name of her group sums up the critical sense of urgency59 and Zero Hour reproduces the imagery of a Doomsday Clock as its logo.60

‘The oceans are rising, so are we’61 Climate change is no longer an invisible threat. As it becomes increasingly more and more tangible, author Nathaniel Rich has predicted that ‘[a]t some point, the fears of young people will overwhelm the fears of the old’ and soon after

55 Chernaik v Brown, 295 Or App 584 (2019). 56 Quoted in Karen Savage, ‘Oregon Court again Dismisses State-Level Youth Climate Case’, Climate Liability News (online, 10 January 2019) . 57 Quoted in Karen Savage, ‘Trump Administration Launches Third “Hail Mary” to Halt Youth Climate Case’, Climate Liability News (online, 12 October 2018) . 58 Sophie Yeo, ‘“No Climate Justice without Racial Justice”: Inside the Youth Climate March’, Pacific Standard Magazine (2 July 2018) . 59 Zero Hour is the name of a recently formed youth climate activist group in the United States. 60 ‘Getting to the Roots of Climate Change’, Zero Hour (Web Page) . 61 This slogan is appearing on placards in the school climate strikes; see Cecilia Rodriguez, ‘Unprecedented Climate Strikes by Students around the World to Save the Planet, in Photos’, Forbes Magazine (15 March 2019) .

Telling the tale of the children  73 that ‘the young will amass enough power to act’.62 Youth climate activists are arguing that this turning point has been reached. In 2018, youth activism became a powerful and highly visible political force. In March of that year, the world was transfixed by the spectacle of energised, eloquent teenagers rallying together to demand gun control in the United States. The survivors of the 2018 shooting at the Margery Stoneman Douglas High School in Florida addressed a global audience with extraordinary raw power and conviction. Young participants in the rallies were motivated by the most basic of survivalist impulses, by their very real fear that they could be killed while sitting in their classroom. The same survivalist impulse drives youth climate activists. In July 2018, directly inspired by March for Our Lives, the newly formed youth group Zero Hour organised a climate action march in Washington. The founder of Zero Hour, Jamie Margolin, is in regular contact with Emma Gonzalez,63 who rose to international prominence as one of the key student organisers in March for Our Lives.64 One year after the March for Our Lives rally in Washington, Zero Hour helped to organise a nationwide school climate strike in the United States as part of a global movement discussed in the next section. There are strong similarities between sentiments expressed by the teenage March for Our Lives organisers, who are incensed by the government’s inaction on gun control, and Zero Hour’s ‘Enough is enough’ statement on its website. On the March for Our Lives website is an invitation to ‘make history together’ and the bold claim that ‘young people will change this country for the better’.65 Zero Hour speaks for ‘we, the youth’ and states that ‘we cannot afford to wait any longer for adults’ to act.66 A similar message of youth strength and capacity is apparent in the indigenous youth activism movement that spearheaded the Standing Rock protests against the construction of the Dakota Access Pipeline in North Dakota. The indigenous activists, who gathered together at the Standing Rock Sioux reservation as the International Indigenous Youth Council and found new purpose as water protectors, describe themselves as the Seventh Generation, the Generation with a ‘messianic role to help restore order, on behalf of all beings, to a world thrown out of balance by modernity and greed’.67 The prayer camp set up at the Stand-

62 Nathaniel Rich, ‘Losing Earth: The Decade We Almost Stopped Climate Change’, The New York Times Magazine (1 August 2018) . 63 Yeo (n 58). 6 4 Julie Turkewitz, Matt Stevens and Jason M Bailey, ‘Emma Gonzalez Leads a Student Outcry on Guns: “This Is The Way I Have to Grieve”’, The New York Times (online, 18 February 2018) . 65 ‘March for Our Lives #Turnout Tuesday Series’, March for Our Lives (Web Page) . 66 ‘Who We Are’, Zero Hour (Web Page) . 67 Sean Elbin, ‘The Youth Group That Launched a Movement at Standing Rock’, The New York Times Magazine (31 January 2017) .

74  Telling the tale of the children ing Rock Sioux Reservation by a handful of indigenous youth in April 2016 developed into a community of committed protesters.68 The young people organised a relay prayer run from Standing Rock to Omaha to deliver a letter to the Army Corps of Engineers and the initial group swelled in numbers as reservation youths joined the movement. A later relay run to the Army Corps headquarters in Washington covered over 2,000 miles.69 There are multiple narratives underlying both youth climate litigation and youth climate activism. The predominant message broadcast by the participants is one of generational empowerment. Twelve-year-old Haven Coleman has stated that ‘[w]e are so lucky to get to be the generation that changes the entire system’.70 Youth activists self-identify as ‘climate warriors’,71 speak of their ‘messianic role’, and disparage fatalism. They reference lost or compromised futures but do not take refuge in victimisation. Some, despite their youth, have a history of active, ongoing engagement with climate change and other environmental issues. The charismatic Xiuhtezcatl Martinez, hip-hop artist and one of the Juliana plaintiffs, gave his first public speech on climate change at the age of six, became a member of President ­Obama’s youth council at 13 and addressed a full session of the United Nations at the age of 15,72 during which he stated: I stand before you representing my entire generation. Youth are standing up all over the planet to find solutions. We are flooding the streets and now flooding the courts.73 Yet many youth climate activists, and certainly the vast majority of participants in the school climate strikes described in the next section, are new to activism. The Sunrise Movement is another recently founded group of committed youth climate activists in the United States, ‘turning our rage at decades of inaction on climate change into a political machine capable of helping to elect honest leaders who will fight for our generation and create millions of good jobs in the

68 Ibid. 69 Ibid. 70 Quoted in Clementine De Pressigny, ‘Why Are Thousands of Students Striking from School?’, i-D (11 February 2019) . 71 ‘Don’t Call Them “Climate Kids”’, The Register-Guard (online, 25 September 2018) . 72 Andrew Masterton, ‘Why Teenage Hip-Hop Artist and Climate Change Warrior Xiuhtezcatl Martinez Is Suing the US Government’, The Sydney Morning Herald (online, 9 January 2017) . 73 Quoted in Coco McPherson, ‘Meet the Teenage Indigenous Hip-Hop Artist Taking on Climate Change’, Rolling Stone (13 July 2015) .

Telling the tale of the children  75 process’.74 Their expressed goal is to create a ‘whirlwind movement’: whirlwind in the trickster sense of something that ‘disorients, defies gravity, upends things and leaves them in a new place’.75 In November 2018, the movement organised a theatrical sit-in outside the office of Congress Democratic Leader and House Speaker Nancy Pelosi.76 Fifty protesters were arrested. Many wore T-shirts printed with the words ‘12 years’, a reference to the critical timeframe identified in the 2018 IPCC Special Report.77 While some held banners, members of the group took turns to tell their climate change stories and sang protest songs.78 The purpose of the incursion was to obtain Pelosi’s support for the Green New Deal, an ambitious policy proposal for an emissions neutral United States within ten years subsequently drafted by the Sunrise Movement, two other progressive organisations, and the staffers of newly elected member of Congress Alexandria Ocasio-Cortez.79 This alternative vision of a transformed economy and society constitutes dangerous youth climate dissent at its most powerful.80 Constant access to social media and networking skills honed by their facility and familiarity with this communication platform are important factors in the burgeoning phenomenon of youth climate activism.81 After 18-year-old Rose Strauss was publicly called ‘young and naïve’ by a Republican candidate who receives fossil fuel funding, videos of their exchange went viral on social media

74 Izzi Graj, ‘Climate Change Needs to Be an Important Platform for Elected Leaders, And Here’s Why’, Teen Vogue (14 September 2018) . 75 Sam Adler-Bell, ‘The Story behind the Green New Deal’s Meteoric Rise’, The New Republic (6 February 2019) . 76 Dino Grandoni, ‘The Energy 202: Green Protests at Pelosi’s Office Signal Rift over Democratic Climate Strategy’, The Washington Post (online, 14 November 2018) . 77 Ibid. 78 Adler-Bell (n 75). 79 Benjamin Wallace-Wells, ‘How Alexandria Ocasio-Cortez’s Allies Supplanted the Obama Generation’, The New Yorker (17 January 2019) . The blueprint for the Green New Deal was released by Alexandria Ocasio-Cortez in early February: Robinson Meyer, ‘The Millenial Era of Climate Politics Has Arrived’, The Atlantic (7 February 2019) . 80 Karen O’Brien, Elin Selboe and Bronwyn M Hayward define dangerous dissent on the part of youth climate activists as dissent which ‘generates new and alternative systems, new ways of doing things, new types of economic relationships, and new ways of organizing society’ in ‘Exploring Youth Activism on Climate Change: Dutiful, Disruptive and Dangerous Dissent’ (2018) 23(3) Ecology and Society 42:1–13, 6 . 81 See Alexandra Yoon-Hendriks, ‘Meet the Teenagers Leading a Climate Change Movement’, The New York Times (online, 21 July 2018) .

76  Telling the tale of the children under the hashtag ‘YoungandNaive’.82 Strauss commented that ‘[o]ur generation has the power of social media to spread information’.83 A later videoed exchange between children and members of the Sunrise movement and Senator Dianne Feinstein, in which she peremptorily dismissed their request to support the Green New Deal resolution, was also widely circulated on social media, with the group condemning the senator’s behaviour as smug and disrespectful.84 Internationally there are youth organisations and networks dedicated to climate activism in most countries. The Australian Youth Climate Coalition, founded by two university students in 2006, campaigns in and outside high schools, has held several youth summits called Power Shift, and has over 150,000 members.85 Power Shifts have also been held in other countries. SEED is Australia’s first indigenous youth climate network, working towards climate justice.86 350 ­Pacific is a youth-led climate activist network in the Pacific region; members have participated in protests as the Pacific Climate Warriors.87 Student-led fossil fuel divestment campaigns, coordinated by 350.org, are underway at 850 universities around the world.88 Karen O’Brien, Elin Selboe and Bronwyn M Hayward have put forward a typology of youth climate activism in which they identify three types of dissent: dutiful, disruptive and dangerous.89 Dutiful dissent involves working within existing systems and institutions, drawing upon existing norms and rules. Many youth initiatives fall into this category and arguably youth climate litigation could be classified as dutiful dissent. Given the defensive reaction of governments, however, it appears to have strongly disruptive and even potentially d ­ angerous elements, in that youth litigants are ‘strengthening their personal and political agency’.90 Generally, there has been a recent shift towards disruptive and dangerous modes of youth climate activism; this reflects the desperation of a generation confronting the radical uncertainties and hardships of life on Hothouse Earth. In late 2018 and 2019, young people embraced a powerful, new, disruptive

82 Dan Levin, ‘A Politician Called Her “Young and Naïve”. Now She’s Striking Back’, The New York Times (online, 25 July 2018) . 83 Quoted in ibid. 84 Lois Beckett, ‘“You Didn’t Vote for Me”: Senator Dianne Feinstein Responds to Young Green Activists’, The Guardian (online, 23 February 2019) , 85 Clare Press, Rise and Resist. How to Change the World (Melbourne University Press, 2018) 131–4. 86 ‘Fighting for Climate Justice’, Seed (Web Page) . 87 ‘Pacific Warriors Campaign against Climate Change’, ABC News (online, 4 March 2013) . 88 Nicole Hoey, ‘“We Are Not a Force To Be Ignored”: Young People Take Up Climate Activism’, Reuters (online, 11 April 2018) . 89 O’Brien, Selboe and Hayward (n 80). 90 Ibid 6.

Telling the tale of the children  77 strategy, organising and participating in large-scale, coordinated, school climate strikes. The inspiration for this burgeoning movement came from an unlikely source: a blunt-spoken and uncompromising Swedish teenager.

Skipping school for the planet In 2018, following the example set by students in the March for Our Lives movement,91 then 15-year-old Greta Thunberg staged a now internationally famous school climate strike, sitting alone outside the Swedish Parliament for three weeks until the September election. Her reasoning was that since adults did not care about her future, nor did she.92 On the last day of her strike, she delivered a speech entitled ‘Our lives are in your hands’. She pointed out that­ ‘[t]hose of us who are still children can’t change what you do now once we’re old enough to do something about it’.93 Speaking at the launch of the Extinction Rebellion in London on 31 October 2018, Thunberg outlined the critical urgency of the climate crisis with concise clarity, stating that ‘[t]here are no grey areas when it comes to survival’.94 She also addressed the United Nations at the COP 24 in Poland in December 2018, where she accused world leaders of failing the people and told them that ‘change is coming, whether they like it or not’.95 At this gathering, she made pointed reference to a reversal of generational roles: ‘[s]ince our leaders are behaving like children, we will have to take the responsibility they should have taken long ago’.96 A narrative of inter-generational reproach and condemnation, the corollary of the adult narrative of inter-generational guilt and responsibility, underlies much youth climate activism. A month later, Thunberg addressed delegates at the World Economic Forum in Davos, Switzerland, calling world business leaders to account for their complicity in the climate change catastrophe and demanding urgent action.97 In February 2019, flanked by fellow striking students, she addressed the European Economic and Social Committee in Brussels, identifying the doubling of the 91 Damian Carrington, ‘“Our Leaders Are Like Children”, School Strikes Founder Tells Climate Summit’, The Guardian (online, 4 December 2018) . 92 David Crouch, ‘The Swedish 15-Year-Old Who’s Cutting Class to Fight the Climate Crisis’, The Guardian (online, 1 September 2018) . 93 Greta Thunberg, ‘Our Lives Are in Your Hands’ (Speech, 7 September 2018) . 94 Greta Thunberg, ‘The Rebellion Has Begun’ (Speech, Parliament Square London, 31 October 2018) . 95 Quoted in Carrington (n 91). 96 Quoted in ibid. 97 Greta Thunberg, ‘“Our House Is On Fire”: Greta Thunberg, 16, Urges Leaders to Act on Climate’, The Guardian (online, 26 January 2019) .

78  Telling the tale of the children European Union’s current emissions reduction targets as a necessary response to the climate crisis.98 A failure to act now, she warned, will mean that current political leaders ‘will be remembered as the greatest villains of all time’.99 Thunberg currently goes to school for four days a week but continues to strike on Fridays.100 She is joined by growing numbers of young people all over the world on her Friday strikes;101 this has become the global #FridaysForFuture movement. Her example has led to ongoing and escalating school strikes by hundreds of thousands of students around the world. In Belgium, large-scale, regular school strikes have been organised by the Youth for Climate movement.102 In the United Kingdom, the Students Climate Network was established in December 2018 and organised its first nationwide school strike on 15 February 2019, in which thousands of children participated.103 In Australia, the School Strike 4 Climate movement began in October 2018 with a strike staged by three Victorian teenagers, who stated, quite simply, that ‘[w]e want a world that’s safe to live in, and futures we can look forward to’.104 The Australian youth initiative escalated into a nationwide school strike on 30 November 2018, when thousands of students gathered in capital cities and regional areas.105 The strike occurred the day after Indian company Adani announced its intention to commence construction of the controversial Carmichael  98 Jennifer Rankin, ‘Greta Thunberg Tells EU: Your Climate Targets Need Doubling’, The Guardian (online, 22 February 2019) .  99 Quoted in Robin Emmott, ‘Swedish Student Leader Wins EU Pledge to Spend Billions on Climate’, The New York Times (online, 21 February 2019) . 100 Jessica Corbett, ‘Teen Climate Activist to Crowd of Thousands: “We Can’t Save the World by Playing by the Rules Because the Rules Have to Change”’, Common Dreams (online, 20 October 2018) . 101 Graeme Wearden and Damian Carrington, ‘Teenage Activist Takes School Strikes 4 Climate Action to Davos’, The Guardian (online, 24 January 2019) . 102 Lisa Bradshaw, ‘35,000 Attend Youth for Climate March in Brussels’, Flanders Today (online, 30 January 2019) . 103 Matthew Taylor et al, ‘School Pupils Call for Radical Climate Action in UK-Wide Strike’, The Guardian (online, 16 February 2019) . 104 Harriet O’Shea Carre and Milou Albrecht, ‘Why We’re Striking from School over Climate Change Inaction’, The Sydney Morning Herald (online, 31 October 2018) . 105 Naaman Zhou, ‘Climate Change Strike: Thousands of Students Join National Protest’, The Guardian (online, 30 November 2018) ; Livia AlbeckRipka, ‘Climate Change Protest Draws Thousands of Australian Students’, The New York Times (online, 30 November 2018); . The Canberra strike occurred on 28 November; Naaman Zhou, ‘Hundreds of Children Striking over Climate Change Descend on Parliament’, The

Telling the tale of the children  79 coalmine in Queensland’s Galilee Basin before the end of the year;106 Stop Adani signs and chants proliferated at every rally. A week later, young students organised Stop Adani, March 4 Our Future rallies, attended by thousands of people, in four major Australian cities.107 By participating in the school strike, Australian children ignored an extraordinary directive from Prime Minister Scott Morrison. In Question Time, he had stated that ‘what we want is more learning in schools and less activism’;108 this condescending statement, coupled with the Resources Minister’s contribution that the only thing children would learn by protesting was ‘how to join the dole queue’,109 contributed to the popularity of the strike. In February 2019, Theresa May, Prime Minister of Britain, expressed similar disapproving sentiments in response to the first major United Kingdom school climate strike.110 Disparaging and negative comments by leading political figures reinforce the children’s clearly stated message: they are fully cognisant that it is their future at stake and they are resorting to school strikes because adults, and in particular politicians, are failing them. The condemnation of senior politicians also amplifies the disruptive impact of the school strikes and highlights the extent to which they constitute a challenge to existing power relationships. After New South Wales Education Minister Rob Stokes threatened to apply sanctions to students who participated in the March 2019 global strike, Greta Thunberg responded on twitter with the simple words: ‘we don’t care’.111 Detractors have portrayed the striking children as gullible and manipulable. The comments by Belgian environment minister Joke Schauvlidge, in which she insinuated that the children were being directed by unspecified adult figures, culminated Guardian (online, 28 November 2018) . 106 Nicole Hasham, ‘Adani Announces Coal Mine Construction Will Begin’, The Sydney Morning Herald (online, 29 November 2018) . 107 Jocelyn Garcia, ‘Students “March for Our Future” in Brisbane to Stop Adani’, Brisbane Times (online, 8 December 2018) ; ‘Adani: Thousands Protest across Australia against Carmichael Mine’, The Guardian (online, 8 December 2018) . 108 Quoted in ‘Scott Morrison Tells Students Striking over Climate Change to be “Less Activist”’, The Guardian (online, 26 November 2018) . 109 Quoted in Remy Varga, ‘School Kids Strike in Thousands for Climate Action’, The Australian (online, 30 November 2018) . 110 Colin Drury, ‘Climate Strike: Thousands of UK Schoolchildren Walk Out of Classes to Protest Ecological Strike’, The Independent (online, 16 February 2019) . 111 Quoted in ibid.

80  Telling the tale of the children in her tearful resignation; the Youth for Climate group called the allegation ‘an insult to the authentic engagement of so many young people’.112 A similar claim that children were being ‘used as climate pawns’ surfaced on the front page of an Australian newspaper in February 2019.113 Three days before the global climate strike in March 2019, another Australian newspaper published an opinion piece in which the author asserted that the ‘strike is just the most recent example of how the cultural Left is using the curriculum to indoctrinate students with its neo-Marxist and postmodern ideology’.114 The next day, an influential commentator described the school strikers as ‘mere pawns in a bid to undermine capitalism’.115 Members of the major political parties in contemporary liberal democracies are subject to unrelenting lobbying by powerful interest groups.116 According to the research and campaign group Corporate Europe Observatory, Exxon­ Mobil, for instance, has spent €35 million since 2010 on lobbying the European parliament; 6 of its 12 declared lobbyists have ‘lobby badges’ which provide them with direct access to members of the Parliament.117 The complicity between the mining industry and the Australian government has already been noted in Chapter 2. However, teenage and child climate strikers operate independently of such complex political and economic enmeshments. They are more concerned about their long-term future than about short-term political survival and have formed their own views about the lack of effective political action on an existential threat. Pithy messages on the signs waved in front of cameras in November 2018 made clear the contempt that Australian children feel for their politicians. One eye-catching placard at the Melbourne rally read: ‘I’ve seen smarter cabinets at

112 Quoted in Daniel Boffey, ‘Belgian Minister Resigns over School-Strike Conspiracy Claims’, The Guardian (online, 6 February 2019) . 113 Josephine Tovey, ‘“Belongs in a Museum”: Greta Thunberg Condemns Politician against School Strike’, The Guardian (online, 21 February 2019) . 114 Kevin Donnelly, ‘Our Schoolkids Just Doing as They’re Told’, The Australian (online, 12 March 2019) . 115 Maurice Newman, ‘Climate Kids Mere Pawns in a Bid to Undermine Capitalism’, The ­Australian (online, 14 March 2019) . 116 A 2019 report by InfluenceMap has stated that the five largest publicly owned oil and gas companies spend nearly $200 million a year on lobbying against climate mitigation policies: Sandra Laville, ‘Top Firms Spend Millions Lobbying to Block Climate Change Policies’, The Guardian (online, 22 March 2019) . 117 ‘Climate Arson: The Strategies and Impact of ExxonMobil’s Dangerous EU Lobbying’, Corporate Europe Observatory (Post, 18 March 2019) .

Telling the tale of the children  81 Ikea’.118 Jean Hinchliffe, one of the organisers of the Sydney rally, summed up the prevailing sense of disillusionment and betrayal with the following statement: ‘As a generation, we are sick of those in power failing to stop the climate crisis’.119 Our children, who have not been spared the stark facts of climate change in their classrooms,120 are afraid, angry and, increasingly, empowered.121 On 15 March 2019, over 1.4 million school and university students, together with their adult supporters, participated in a historic, global climate strike.122 In Australia, strikes took place in more than 50 locations, with an estimated 30,000 striking in Sydney alone123 and an estimated 150,000 Australia-wide.124 The global, all-encompassing nature of the strike meant that continuous images, commentary and footage were generated and circulated over a 24-hour period. Children and young adults, chanting defiantly and holding handmade signs and placards, marched in their thousands through the streets of major cities around the world. The message was clear: young people in every continent are united in their desire for transformative change and they will continue to demand effective climate action until political leaders respond appropriately. The widespread sense of desperation is palpable. In the words of some of the organisers, ‘[t]his movement had to happen, we didn’t have a choice’.125

The child in wild time The tale of the children in an age of climate change is also being told in varied and nuanced ways in climate fiction. 118 ‘Schools Climate Strike: The Best Banners and Posters’, The Guardian (online, 30 November 2018) . 119 Quoted in Josh Dye, ‘Striking Students Defy PM To Protest at Inaction on Climate Change’, The Sydney Morning Herald (online, 30 November 2018) . 120 Veronica Hester, ‘Yes, Prime Minister, I’m Striking From School: Consider It a Climate ­L esson’, The Sydney Morning Herald (online, 29 November 2018) . 121 Ibid. 122 350.org, ‘1.4 Million Students across the Globe Demand Climate Action’ (Press Release, 15 March 2019) . 123 Sandra Laville, Matthew Taylor and Daniel Hurst, ‘“It’s Our Time to Rise Up”: Youth Climate Strikes Held in 100 Countries’, The Guardian (online, 16 March 2019) . 124 Griff Witte, Sarah Kaplan and Brady Dennis, ‘School Climate Strikes Draw Thousands to the Streets in Cities around the Globe’, The Washington Post (online, 15 March 2019) . 125 Greta Thunberg et al, ‘Think We Should be at School? Today’s Climate Strike Is the Biggest Lesson of All’, The Guardian (online, 15 March 2019) .

82  Telling the tale of the children Here, children can be represented as a void or absence. Alfonso Cuaron’s dystopian film Children of Men,126 while not specifically within the genre of climate fiction, compelled us to consider the bleak implications of a barren future without children and without the possibility of children. The characters’ desires and ambitions coalesce around an archetypal figure from Judeo-Christian mythology, a pregnant woman fleeing the authoritarian structures which seek to possess and control her and her unborn child. This miraculous child, the first to be born in 18 years, represents the only source of hope. Some commentators have pointed out that a world without children, or at least with strictly controlled reproduction, is one of the most compelling and rational responses to climate change. Peter Singer has pointed out that ‘if we would all agree to have ourselves sterilized then no sacrifices would be required – we could party our way into extinction!’127 In a similar vein, Amitav Ghosh points out that although the Chinese one-child policy was ‘draconian and repressive’, it can be seen, in hindsight, as a ‘mitigatory measure of great significance’.128 The organisation Birthstrike consists of young men and women who have decided not to have children, in light of the climate crisis and the looming depredations of wild time.129 Children, nevertheless, play a prominent role in most climate fiction and in fictitious portrayals of wild time. Within this genre, children can be portrayed as assertive leaders and protagonists, fighting for their futures; such characters, however, are largely confined to children’s and young adult literature. Children in climate fiction are more commonly perceived through adult eyes, as victims and as vulnerable individuals and groups needing protection. Here, the adult sense of guilt and responsibility for children stranded in the vicissitudes of wild time is clearly conveyed. In wild time, children are both human and posthuman, both socialised and feral, and adult caregivers and observers react differently to each group.

Children as activists A number of placards in the United States March for Our Lives rallies on 24 March 2018 drew attention to the influence of strong teenage role models in popular children’s and young adult fiction on today’s youth activists. One such sign asked the rhetorical question: ‘You think kids raised on Harry Potter and Hunger Games are going to give up?’130 126 Children of Men (Universal Studios, 2006). 127 Peter Singer, ‘Should This be the Last Generation?’, The New York Times (online, 6 June 2010) . 128 Amitav Ghosh, The Great Derangement. Climate Change and the Unthinkable (University of Chicago Press, 2016) 113. 129 Elle Hunt, ‘Birthstrikers: Meet the Women Who Refuse to Have Children until Climate Change Ends’, The Guardian (online, 12 March 2019) . 130 Minyvonne Burke and Jennifer Smith, ‘“There Are No Words”: J K Rowling’s Touching Tribute to Parkland Survivor Who Threw Up On Stage During Emotional Speech at the March For

Telling the tale of the children  83 In climate fiction for a youth audience, children are similarly empowered; key child protagonists become inspirational leaders and activists. One such character with leadership qualities is teenage Mara in Julie Bertagna’s Exodus.131 Mara is brave, visionary and charismatic. Overcoming her doubts and fears, she inspires and ultimately leads a disparate group of refugees, abandoned children and the unworldly Treenesters to a refuge in Greenland. Fox, whose family ‘is at the heart of the global power that governs all the cities of the New World’,132 is also a visionary and idealistic teenager, determined to forge a fairer and more just world by ‘plant[ing] seeds of dissent’ in the new version of the internet and thus launching a revolution.133 In Saci Lloyd’s highly acclaimed The Carbon Diaries,134 yet another teenager, Laura, reacts with teenage cynicism and scathing wit to the introduction of carbon rationing in Britain and the ensuing social and political upheaval. She finds herself embroiled in a water war, detained in a refugee camp135 and rioting with fellow youths in a London controlled by an increasingly authoritarian government.136 These unpleasant experiences, far from quashing her spirit, contribute to her growing politicisation and empowerment. By the end of the second book, she no longer avoids politics nor distrusts the fervour with which some of her contemporaries, most notably the ‘global underground green army’ called 2,137 are responding to the imposition of a draconian police state. She has matured into a committed activist for whom revolution has become ‘the only thing that matters’.138 Such portrayals are in marked contrast to the prevalent representation of children as innocent victims in a hostile landscape. Writers commonly explore, from an adult and often parent’s perspective, the themes of generational obligation, failure and betrayal of children in the age of climate disruption.

Children as victims Children are unseen protagonists but very much at the heart of Lucy Kirkwright’s play The Children,139 first performed at the Royal Court Theatre in London in 2016. Kirkwood’s intention was to write a play about climate change140 and the

Our Lives Rally’, Daily Mail (online, 26 March 2018) . 131 Julie Bertagna, Exodus (Walker and Company, 2009). 132 Ibid 222. 133 Ibid 283. 134 Saci Lloyd, The Carbon Diaries 2015 (Hodder, 2009) and Saci Lloyd, The Carbon Diaries 2017 (Hodder, 2009) (‘Carbon Diaries 2017’). 135 Lloyd, Carbon Diaries 2017 (n 134) 286–93. 136 Ibid 384–5. 137 Ibid 71. 138 Ibid 400. 139 Lucy Kirkwood, The Children (Nick Hern Books, 2016). 140 Darryn King, ‘Lucy Kirkwood, British Playwright: The Children and Climate Change’, The Australian (online, 3 February 2018) . 141 Tim Stephens, ‘Wishful Thinking? The Governance of Climate Change-Related Disasters in the Anthropocene’ in Rosemary Lyster and Robert R M Verchik (eds), Research Handbook on Climate Disaster Law (Edward Elgar, 2018) 31, 33–4. 142 Geologist Bill McGuire explores the correlation between climate change, and earthquakes and tsunamis, in Waking the Giant. How a Changing Climate Triggers Earthquakes, Tsunamis and Volcanoes (Oxford University Press, 2013). 143 Adeline Johns-Putra states that this theme has ‘continued to preoccupy dramatists and theatergoers alike’ and also refers to the theatrical framing of ‘personal engagement with climate change in terms of intergenerational relationships’: Adeline Johns-Putra, ‘Climate Change in Literature and Literary Studies: From Cli-fi, Climate Change Theater and Ecopoetry to Ecocriticism and Climate Change Criticism’ (2016) 7(2) WIREs Climate Change 266, 271. 144 Kirkwood (n 139) 47–9. 145 Ibid 33. 146 Ibid 60–61. 147 Ibid 70. 148 Ibid 35. 149 Ibid 53.

Telling the tale of the children  85 The play opens with Rose’s question: ‘How are the children?’;150 this seemingly innocent enquiry takes on much broader dimensions as the play progresses. What are the extent of our responsibilities and the nature of our duty of care to our children and the world’s children, given the cascade of future disasters that lies in wait? Should we sacrifice ourselves for them? Should we, as Hazel believes, try to ward off disaster with possibly futile gestures such as bottled water,151 sunscreen152 and yoga153 and remain committed to self-preservation,154 partly because we believe that we are needed by our children155 but largely because of our selfish and, at least in the Global North, endemic conviction that we are entitled to a long life? How culturally and temporally specific, how increasingly unrealistic, are such pervasive expectations of a long, comfortable life? ‘I don’t know how to want less’,156 states Hazel, thereby summing up the shared dilemma of privileged classes in the Global North. The adult generation has bequeathed to our children a perilous and uncertain future. The Children explores the parameters of adult responsibility for the next generation, the illogical, unreasoned adherence to beliefs and habits that have diminishing relevance in wild time, and the fundamental difficulty in recognising and acknowledging our own contribution to environmental catastrophe. Parents in particular struggle with this understanding in attempting to accommodate their children’s needs and desires. One of the more challenging dimensions to parenting in an age of climate disruption is the intimate relationship between parental expectations and the interconnected phenomena of consumerism, capitalism and climate change. The instinct to care for our children is linked, in the Global North at least, to destructive patterns of over-consumption and over-indulgence. The corporate world is prepared to exploit this instinct; the 1997 United States fossil fuel industry campaign against the Kyoto Protocol, for instance, featured a stereotypical ‘soccer mom’ and her SUV. As Matthew Paterson has pointed out, the campaign implied that mitigation strategies were in conflict with her maternal obligations.157 Our ready responsiveness to our children’s needs and our inability to say no to them play a major role in contributing to the global environmental problem. We can be aware of this particular paradox, and despairing about the planet’s future, but still find ourselves susceptible to the mainstream perception that we must care for our children by providing expensive educational opportunities and a surfeit of material possessions. The father of youth climate activist

50 Ibid 4. 1 151 Ibid 9. 152 Ibid 56. 153 Ibid 14, 43, 78. 154 Ibid 15. 155 Ibid 70. 156 Ibid 77. 157 Matthew Paterson, ‘The Sociological Imagination of Climate Futures’ in Paul Wagner and Hilal Elver (eds) Reimagining Climate Change (Routledge, 2016) 14, 23.

86  Telling the tale of the children Jamie Margolin has explained that although he understands the panic and sense of urgency on the part of the younger generation, his own focus as a parent is on more short-term concerns such as paying for her college tuition.158 Roy Scranton has written that ‘consumer capitalism exploits’ his ‘overwhelming and irrational’ love for his daughter every day.159 Parents are biologically compelled to sacrifice everything for the sake of our children. Yet, in pursuing endeavours with financial rather than planetary outcomes, in remaining complicit in the corporate trashing of the planet, in disregarding future consequences in order to experience short-term gratification and to ensure that our children experience short-term gratification, we have all, however unwittingly, failed them. There is a growing disparity between parental goals and hopes, which are usually based on the assumption that our children’s life experiences will mirror or improve on their own, and their unpredictable futures in a world of runaway climate change. Norwegian author Maja Lunde addresses this disparity in her novel about bees, parents and intergenerational misunderstandings: The History of Bees.160 Lunde has interwoven three stories, set in very different time periods, which focus upon humanity’s interrelationship with and dependence upon bees. In each storyline, a fraught relationship between parent and child is paramount; the child is the unwilling focus of the parent’s dreams and hopes and the parents experience a corresponding sense of failure in relation to their children. The children in each story have a unique role to play in enhancing and restoring humankind’s relationship with bees but this is a role never envisaged, and certainly not sanctioned, by their parents. Charlotte, the daughter of a nineteenth-century naturalist, develops an innovative design for hives which best suits bee colonies but her father, who is preoccupied with his hopes and ambitions for his son, fails to appreciate and appropriately acknowledge her achievement.161 Tom Savage, the son of an ­A merican bee farmer whose hives have fallen victim to the colony collapse disorder in the first decade of the twenty-first century,162 is a talented writer who chronicles the collapse and proposes a global solution. His father, however, disparages his writing, wanting him instead to assume the role of heir to the beekeeping operations. Wei-wen, the small child at the centre of the third story, unwittingly alerts the authorities to the unexpected return of the bees when he suffers an anaphylactic reaction to a bee sting. His mother Tao’s dreams for her son are sharply at odds with his role as martyr and as the national symbol of hope and ecological recovery. Only the third storyline takes place in wild time, in futuristic China. Bees disappeared a long time ago, with dire ramifications for the world’s food supply;

158 ‘Pictures from Youth Climate Strikes around the World’, The New York Times (online, 15 March 2019) . 159 Scranton (n 10) 332. 160 Maja Lunde, The History of Bees, tr Diane Oatley (Simon and Schuster, 2017). 161 Ibid 296. 162 Ibid 207–8.

Telling the tale of the children  87 after ‘the Collapse’, democracies failed, world war followed and ‘food became a commodity bestowed upon only a select few’.163 The residents in Tao’s agricultural district eke out a living by painstakingly hand pollinating fruit trees.164 The mystery behind Wei-Wen’s sudden malaise and subsequent disappearance dominates this story, as Tao tries desperately to find him and uncover the truth. She is grieving and guilt-ridden, believing that her fixation on using all their spare time to improve his literacy and numeracy led to his death. By the end of the book, Wei-Wen, dead but perpetually preserved in the frozen atmosphere of a hospital vault,165 has become pivotal to the restoration of natural ecosystems.166 At Tao’s urging, the ruling authorities are implementing Tom Savage’s recommendations in his book The History of Bees and allowing the new generation of bees to be free rather than tamed,167 for the sake of all children.168 In some climate fiction, we find parents struggling to protect their children from the multiple hazards of wild time. One of the most harrowing accounts appears in Cormac McCarthy’s The Road. In this novel, subsequently made into a film, an unspecified widespread disaster has led to catastrophic environmental damage and social collapse. Here, we find the anguish of a parent unable to shield his child from the horrors of a world without rules, in which natural and social systems have broken down, or to effectively provide for his future. This is a world in which babies and children are literally devoured;169 as one commentator has written, ‘[a] child is reduced to nothing but ghastly sustenance’.170 Cannibalism is rife and the grisly reminders of this are everywhere.171 For the nameless man, his devotion to his son provides him with his only motivation to continue living and, furthermore, enables him to retain his humanity in an inhumane world;172 they are ‘each the other’s world entire’.173 He is prepared to kill to save his son174 and tries to steel himself to the possibility of having to kill his son himself in order to save him from a worse fate.175 Isobel, the central character in Alice Robinson’s The Glad Shout,176 also faces the challenge of parenting alone in the hostile world of wild time. Climate 63 Ibid 22. 1 164 Ibid 1–2. 165 Ibid 309. 166 Ibid 337. 167 Ibid 334. 168 Li Xiara, the leader of the ruling body the Committee, is prepared to adopt Tao’s advice and follow the recommendations in the book in fostering and protecting the returned bees because, as she tells Tao, ‘I have children, too’: ibid 328. 169 Cormac McCarthy, The Road (Picador, 2006) 167. 170 Kevin Kearney, ‘Cormac McCarthy’s The Road and the Frontiers of the Human’ (2012) 23(2) Literature Interpretation Theory 160, 161. 171 McCarthy (n 169) 76, 107. 172 See Johns-Putra (n 1) 530. 173 McCarthy (n 169) 5. 174 Ibid 65. 175 Ibid 96. 176 Alice Robinson, The Glad Shout (Affirm Press, 2019).

88  Telling the tale of the children change impacts have gradually encroached throughout Isobel’s life in the form of rising sea levels, civil unrest, border controls, food shortages, unemployment, drought and internal migration as families flee non-viable rural existences.177 It is only, however, when a catastrophic storm surge inundates the eastern ­seaboard of Australia that the last vestiges of her old life are stripped away, the ­‘[w]orld ending, and everything destroyed’.178 Isobel struggles to care for, protect and reassure a small daughter in the challenging conditions of a temporary disaster refuge in a Melbourne stadium, and then on a hazardous sea journey to ­Tasmania. As she makes her way to the boat, piggybacking her daughter through the flooded city, she is grimly aware that ‘all she has to fight for, to cherish, she carries on her back’.179

Feral children The ravages of runaway climate change threaten to rip apart families and communities. James Bradley has observed that ‘repeated motifs of disrupted families and missing children’ appear in climate fiction.180 Writers are exploring the plight of the lost or abandoned child in wild time, the child devoid of family and community who lives by his or her wits. Some adults feel a protective impulse to care for these children; in The Glad Shout, prior to the flood, the charity ­Children Survive supports abandoned or surrendered ‘small-town kids whose parents had lost everything as services were cut, who stumbled out on foot with what they could carry’.181 In other accounts, such children are left to their own devices, scavengers on the fringes of what remains of society, their savage behaviour deplored by indifferent adults. Although not a work of climate fiction, Doris Lessing’s Memoirs of a S­ urvivor182 alludes to the plight of the abandoned children of wild time. In this 1974 novel set in a futuristic London, a spiralling societal breakdown is underway. The narrator, compelled to adopt a caretaker role for a young girl left in her custody, observes events from the dubious sanctuary of her ground floor flat. Gangs of young feral children are both pitiful and dangerous.183 These children ‘seemed never to have had parents, never to have known the softening of the family’.184 They steal, destroy and kill without scruples, ‘because of a whim, a fancy, an impulse’.185 With admirable dedication, the kind-hearted Gerald attempts to

1 77 Ibid 88. 178 Ibid 286. 179 Ibid 202. 180 James Bradley, ‘Writing on the Precipice’, Sydney Review of Books (21 February 2017) . 181 Robinson (n 176) 210. 182 Doris Lessing, The Memoirs of a Survivor (Picador, 1976). 183 Ibid 154–6. 184 Ibid 154. 185 Ibid 183.

Telling the tale of the children  89 socialise them but other adults in the neighbourhood perceive the children as dangerous and oppose his efforts to integrate them.186 Similar groups of unsocialised and amoral children feature in some climate fiction. Tao encounters three feral teenagers, ‘desperately hungry young people, without any hope for a life’,187 in an abandoned urban district in her search for Wei-Wen. They are prepared to attack her until she offers them her remaining food.188 Gangs of street children appear in Margaret Atwood’s The Year of the Flood189 as ‘pleebrats’ and in Julie Bertagna’s Exodus, in which ‘a warren of water rat children’, ‘the orphaned castaways of the drowned world’,190 are eventually rescued by Mara, the teenage protagonist. The Treenesters, who share their drowned world beneath the sky city, view them as ‘dangerous little animals’,191 ‘not human like us’,192 and the inhabitants of the sky city use them as slave labour.193 These children are in fact different, other, the product of abandoned experiments in bioengineering, with various aquatic adaptations such as ‘thick seaworthy skin like a water rat or seal’.194 Posthuman children play a central role in other climate fiction works and throw up compelling questions about the ambit of intergenerational responsibilities.

Posthuman children Posthuman children are generally the product of scientific experimentation. In Margaret Atwood’s MaddAddam trilogy, in the wild time after the Waterless Flood, the bio-engineered Crakers are passive, peace-loving, naïve vegans with an adaptive blend of somewhat quirky nonhuman and human attributes. There are marked differences between these ‘preternaturally beautiful’,195 genetically engineered hybrids, and human adults and children. In this post-apocalpytic world, there are Craker children, albeit with an accelerated maturation,196 and also a new hybrid mix of human and Craker,197 conceived when Craker men rape two human survivors in a ‘major cultural misunderstanding’.198 Even adult Crakers, however, have many child-like qualities, including innocence, ingenuousness and insatiable curiosity to make sense of their world. They are commonly referred to as the Children of Crake, their

86 Ibid 159–63. 1 187 Lunde (n 160) 221. 188 Ibid 222. 189 Margaret Atwood, The Year of the Flood (Bloomsbury, 2009). 190 Bertagna (n 131) 83. 191 Ibid 127. 192 Ibid 133. 193 Ibid 165–6. 194 Ibid 106. 195 Margaret Atwood, MaddAddam (Bloomsbury, 2013) 36 (‘MaddAddam’). 196 Margaret Atwood, Oryx and Crake (Bloomsbury, 2003) 303 (‘Oryx and Crake’). 197 Atwood, MaddAddam (n 195) 379–80. 198 Ibid 13.

90  Telling the tale of the children ­ enius creator, and indeed Crake endowed all of them, irrespective of their dig verse skin tones, with the signature touch of his own ‘uncanny green eyes’.199 The Paradice scientist survivors who were forcibly recruited by Crake continue to view the Crakers dispassionately as the evolving product of a laboratory experiment. Swift Fox, who worked on their brains, describes them as ‘walking potatoes’; 200 Manatee explains that they would have been ‘zucchinis’ had the capacity to sing been removed from their gene-spliced DNA.201 By way of contrast, Jimmy, the central human character in Oryx and Crake, 202 and Toby, who features in the last two books of the trilogy, both feel a strong degree of protective concern for the Crakers. Toby adopts a particularly quasi-parental and mentoring role with one of the Craker children, Blackbeard; this may, as one commentator suggests, be attributable to her infertility and thwarted maternal instincts.203 Jimmy’s assumption of his role as Craker caretaker, on the other hand, arises from Crake’s instructions, 204 his promise to his beloved Oryx, 205 and Crake’s final injunction to him.206 His capacity for empathy207 and sense of responsibility208 also influence his behaviour. The sense of obligation felt by Toby and the grieving and dysfunctional Jimmy corresponds with the requirement of care for our ‘technocultural’ creations articulated in Australian artist Patricia Piccinini’s sculptures.209 Piccinini’s unsettling work depicts human figures interacting lovingly with various hybrid, inter-species mixes. Donna Haraway, in an essay on ‘the narrative speculative fabulation’210 inherent in Piccinini’s work, observes that: Piccinini insists in word and object that the people of technoculture have a familial, generational duty to their failures, as well as their accomplishments. Natural or not, good or not, safe or not, the critters of technoculture make a body- and soul-changing claim on their ‘creators’ that is rooted in the generational obligation of and capacity for responsive attentiveness.211

99 Ibid 238. 1 200 Ibid 19. 201 Ibid 43. 202 Atwood, Oryx and Crake (n 196). 203 Jane Bone, ‘Environmental Dystopias: Margaret Atwood and the Monstrous Child’ (2016) 37(5) Discourse: Studies in the Cultural Politics of Education 627, 635. 204 Atwood, Oryx and Crake (n 196) 320–1. 205 Ibid 322. 206 Ibid 329. 207 Karin Hopker, ‘A Sense of an Ending – Risk, Catastrophe and Precarious Humanity in Margaret Atwood’s Oryx and Crake’ in Sylvia Mayer and Alexa Weik Von Mossner (eds), The Anticipation of Catastrophe. Environmental Risk in North American Literature and Culture (Universitatsverlag Winter, 2014) 161, 173–4. 208 Atwood, Oryx and Crake (n 196) 350. 209 Donna Haraway, ‘Speculative Fabulations for Technoculture’s Generations: Taking Care of Unexpected Country’ (2011) 50 Australian Humanities Review 95, 101. 210 Ibid 95. 211 Ibid 102 (emphasis in original).

Telling the tale of the children  91 The dimensions of adult responsibility and care for children who are a hybrid and potentially monstrous mix of human and not-human are also explored in Louise Erdrich’s Future Home of a Living God.212 Here an unexpected reversal of the evolutionary process has thrown social institutions into disarray and challenged prevailing norms. The pregnant narrator does not know if her unborn child will emerge as recognisably human; indeed, the same question applies to all gestating foetuses. In response, the State invokes its emergency powers and steps in to regulate the process. This involves forcibly institutionalising pregnant women to ensure that any throwback babies are delivered under strict supervision, 213 and enlisting the services of ‘Womb Volunteers’ to gestate the existing nationwide collection of frozen and hence genetically intact embryos.214 The narrator, Cedar Songmaker, narrates the gripping melodrama of her pregnancy as it unfolds in an inherently unstable social and biological environment. Her maternal imperative to care for her child is overwhelmingly strong, no matter whether the child is human, posthuman or prehuman; the book reads as a love letter addressed to this baby, who is taken from her at birth. The role of posthuman children in wild time is also a key theme in the 2017 film Blade Runner 2049.215 Here the emphasis has shifted from the first Blade Runner film, 216 in which rebel cyborgs wanted only the same longevity as that enjoyed by humans. In Blade Runner 2049, a much larger group of rebel replicants desires something far more ambitious: the capacity to reproduce. They see this as liberation; ‘[i]f a baby can come from one of us, we are our own masters’.217 A scene that graphically depicts a cyborg’s ‘birth’ and subsequent termination, 218 as clinically orchestrated by its manufacturer Niander Wallace, serves to illustrate the importance of cyborgs gaining control over the perpetuation of their species. The film is constructed around the theme of a missing posthuman child, born to a replicant 28 years before. The child is perceived by the dominant law enforcement agency as a threat to what remains of Earth-bound civilisation, a world breaker.219 For the rebel cyborgs, however, the child represents a ‘miracle’:220 vindication of their belief that they can wrest control over their continued existence as a species from the Wallace Corporation. For that corporation’s CEO, Niander Wallace, the lost child offers new economic possibilities: the ‘single perfect specimen’221 that will enable him to create an infinitely vast workforce. The significance and value of this lost child is in contrast to the devalued existence 12 Louise Erdrich, Future Home of the Living God (Corsair, 2017). 2 213 Ibid 72. 214 Ibid 90. 215 Blade Runner 2049 (Alcon Entertainment, 2017) (‘Blade Runner 2049’). 216 Blade Runner: The Director’s Cut (Ladd Company, 1992). 217 Blade Runner 2049 (n 215) 2:00:28–2:00:33. 218 Ibid 0:36:39–0:40:42. 219 Ibid 0:48:45. 220 Ibid 0:09:12, 1:50:43. 221 Ibid 2:06:50.

92  Telling the tale of the children of the hordes of children in the municipal waste processing area beyond the city limits, where they work as slave labour sorting rubbish in a giant orphanage. The identity of the lost child is revealed in the final scenes of the film; her future role in wild time remains an enigma.

Children as narrators In the above discussion, the focus has largely been upon adult voices and responses in climate fiction. One exception is the voice of teenager Laura, vividly captured in her diary entries in The Carbon Diaries. Admittedly, Laura views her parents and their frequently eccentric life choices with some cynicism. However, Kavanagh, the young narrator in the climate-changed ‘new world’222 of John Lanchester’s The Wall, is far more explicit about a gulf between generations and the contempt which he and his peers feel for adults, given their complicity in the so-called Change. Kavanagh and his fellow recruits are reluctant conscripts serving a two-year term guarding the Wall, or ‘National Coastal Defence Structure’, 223 which protects Great Britain from desperate climate refugees. As their parents never experienced life on the Wall, they cannot advise or assist their children in relation to that period of service: ‘the single most important and formative experience in the lives of [that] generation’. Kavanagh observes dispassionately that ‘[n]one of us can talk to our parents’ due to ‘mass guilt, generational guilt’.224 The older generation ‘feel they irretrievably fucked up the world, then allowed us to be born into it’; 225 their children agree with this assessment. Given dramatically different generational experiences before and after the Change and ongoing self-recrimination on the part of adults, Kavanaugh and his peers attach no value to and have little use for the ‘life advice, the ­k nowing-better, the back-in-our-day wisdom’ that used to be ‘a big part of the whole deal b ­ etween parents and children’.226 One of the important narratives captured in the school climate strike movement, that of condemnation of the adult generation’s failure to act, surfaces here in a future iteration when the young are carrying the brunt of that failure. As Kavanaugh points out, the world ‘broke on their watch’.227 Posthuman child narrators emerge in the final book of the MaddAddam ­t rilogy; these particular narrators, however, feel no antagonism or resentment towards their creators or towards human adults. The Crakers display a passion for storytelling and they demand their own creation stories, couched as myths, from Jimmy and then from Toby. Although the Crakers struggle with sarcasm

222 John Lanchester, The Wall (Faber and Faber, 2019) 11. 223 Ibid 21. 224 Ibid 55. 225 Ibid. 226 Ibid. 227 Ibid 151.

Telling the tale of the children  93 and double entendre, Craker children have themselves acquired literacy and storytelling skills by the end of the trilogy. Blackbeard assumes the role of narrator for the last few stories in MaddAddam: the ‘Story of the Battle’ and the ‘Story of the Trial’. He reassures Toby that he ‘will write the story’ when she is ‘too tired to do it’.228 The final ‘story’ in MaddAddam, which completes Toby’s own life story, is told by Blackbeard in keeping with this promise, and recorded by him in ‘the Book’ of which he is designated custodian.229 One commentator has even suggested that the entire trilogy is the narrative product of the Crakers.230

Conclusion The tale of the children in an age of climate change is being told in many diverse ways, in multiple forums and across multiple disciplines. It is a story of broken trust and broken promises. It is a story of parental love, parental foreboding and parental failure. It is a story of empowerment, of brave young people confronting the corporate villains intent on destroying their future and the politicians who refuse to act on the urgency of the climate crisis. It is a story of loss and tragedy and future suffering of unimaginable magnitude. It is a story of responsibility, and shirked responsibility. It is a story of posthuman children who are from us but not of us, and who could be monsters but are not. It is a tale of the mute unborn, who will pay a heavy price for our misdeeds and non-deeds. It is the story of our children and it is a story that we cannot ignore. In the next chapter, I explore another compelling human-focused narrative of climate change, and its companion nonhuman-focused narrative, in looking at the interrelationship between climate change and human and nonhuman rights.

228 Atwood, MaddAddam (n 195) 375. 229 Ibid 388. 230 Debrah Raschke, ‘Margaret Atwood’s MaddAddam Trilogy: Postmodernism, Apocalypse and Rapture’ (2014) 39 Studies in Canadian Literature/Etudes en Literature Canadienne 22, 24.

4 The narrative of rights on a warming planet

There is now an extensive body of academic and other commentary on the broad topic of climate (in)justice and on the related topic of the intersection of climate change and human rights. It is well recognised that runaway climate change will jeopardise most, if not all, fundamental human rights and that its impacts will be dispersed across time and space. Certain groups and populations are the most vulnerable in the short term as a consequence of their geographical location and socio-economic status; they will experience and are already experiencing adverse impacts before the rest of us. There are stark inequalities in terms of contribution to emissions, and present and likely future experiences of climate change impacts. In this chapter, I consider the impact of climate change on human rights and, conversely, the contribution of the discourse of human rights to climate change. Climate change has been exacerbated by activities and patterns of behaviour protected by the human rights discourse. The entrenchment of certain human rights is incompatible with many mitigation and adaptation initiatives. Proposals to address climate change through a stronger expression of existing human rights or the ‘re-imagining’ of human rights,1 or even through the recognition of relatively new rights such as a human right to a healthy environment 2 and a specific right to a healthy climate,3 can therefore be viewed as inherently problematic. In the second part of this chapter, I look at the implications of climate change for nonhuman rights. Here, I flag recent legal turning points in relation to the extension of the narrative of rights to encompass nonhuman species and entities, developments that can be viewed as the legal manifestation of the nonhuman turn. Yet, despite the perceived need for recognition of interspecies co-existence

1 Louis Kotze, ‘Human Rights and the Environment in the Anthropocene’ (2014) 1(3) The Anthropocene Review 252, 271. 2 See, for instance, John H Knox and Ramin Pejan (eds), The Human Right to a Healthy Environment (Cambridge University Press, 2018). 3 Dana Drugmand, ‘NH Town Passes Law Recognizing Right to a Healthy Climate’, Climate Liability News (online, 14 March 2019) .

Narrative of rights on a warming planet  95 and collaboration, recently recognised rights of nonhuman living species, rivers and forests may prove to be short-lived in light of the dwindling resources of a warming planet and the prioritisation of human and corporate needs. I also explore here the interrelationship between the recognised rights of corporate tricksters and climate change. Finally, as part of the evolving narrative of nonhuman rights, I touch briefly on the contentious issue of the rights of cyborgs.

Human rights in a time of climate change The interplay between human rights and climate change is complex. It is clear that climate change jeopardises human rights, or at least the human rights currently recognised in international human rights law at this precarious moment in human history. There is also a causal relationship between the exercise of certain fundamental human rights and climate disruption, between the prevailing narrative of human rights with its ‘anthropocentric focus’ and ‘liberal ideas of individual freedom and human dignity’ and our ‘current ecological overreach’.4 As Dipesh Chakrabarty, looking at the climate change crisis from a historian’s perspective, has written, ‘[t]he mansion of modern freedoms stands on an ­ever-expanding base of fossil-fuel use’.5 He asks: ‘Is the geological agency of humans the price we pay for the pursuit of freedom?’6 The key instrument which ushered in the era of international human rights law was the 1948 Universal Declaration of Human Rights,7 followed by the 1966 International Covenant on Civil and Political Rights 8 and the 1966 International Covenant on Economic, Social and Cultural Rights.9 The development of international human rights law in the wake of World War II coincided with the advent of what Will Steffen and his colleagues have labelled the Great Acceleration:10 the steep, exponential rise in global greenhouse gas emissions and indeed in the overall human imprint on the Earth system which has distinguished the second half of the twentieth century and beyond. International documents, treaties and declarations with aspirational statements about the rights of human beings proliferated in number at the same time that ‘humanity (or until recently a small fraction of it) … [became] a planetary-scale geological

4 Kotze (n 1) 263. 5 Dipesh Chakrabarty, ‘The Climate of History: Four Theses’ (2009) 35(2) Critical Inquiry 197, 208. 6 Ibid 210. 7 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (adopted 10 ­December 1948) (‘Universal Declaration’). 8 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). 9 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 ­December 1966, 993 UNTS 3 (entered into force 3 January 1976). 10 Will Steffen et al, ‘The Trajectory of the Anthropocene: the Great Acceleration’ (2015) 2 The Anthropocene Review 81, 82.

96  Narrative of rights on a warming planet force’.11 International human rights law developed apace with an unprecedented ­‘planetary-style coupling … between the socio-economic system and the biophysical Earth system’.12 This suggests a correlation between a system of thinking which prioritises the needs and privileges of the human individual and, as part of the so-called ‘second generation’ and ‘third generation’ of international human rights law, groups of humans and human societies, and the rapid global growth in the human imprint, both in the form of greenhouse gas emissions and more generally. The struggle for liberation and freedom from exploitation is undoubtedly dependent upon and linked to ongoing resource usage.13 It may even be overly simplistic to focus on the postwar era in analysing possible linkages between the human rights discourse and the Great Acceleration. The popular acceptance of a discourse of rights predates this time, occurring in the later part of the eighteenth century.14 Interestingly, this coincides with Paul Crutzen and Eugene Stoermer’s original tentative date for the onset of the Anthropocene,15 although ‘large-scale shifts in Earth system functioning’ have occurred only after 1950.16 Will Steffen and his co-authors have speculated as to whether the Great Acceleration will terminate abruptly in a Great Collapse.17 The dire ramifications for human rights in a Great Collapse have been foreshadowed in many fictitious imaginings of wild time and I consider such imaginings in the next chapter and in Chapter 6. It is clear, in any event, that the Great Acceleration cannot continue indefinitely. Three of the nine planetary boundaries, which represent the ‘safe operating space for humanity’18 or the limits of Earth’s life support systems, have already been breached. Any causal connections between the discourse and exercise of fundamental human rights and climate change tend to attract less attention than does the impact of climate change on human rights. In recent years, the latter dimension of climate change has been highlighted through a number of legal, governmental and non-governmental initiatives. The term ‘climate justice’ has become commonplace in literature and discussions, due to the efforts of scholars, activists and organisations such as the influential Mary Robinson Foundation – Climate

11 Ibid 94. 12 Ibid. 13 See discussion in Ben Dibley, ‘“The Shape of Things to Come”: Seven Theses on the Anthropocene and Attachment’ (2012) 52 Australian Humanities Review 139, 141–2. 14 Julie Stone Peters, ‘“Literature”, the “Rights of Man,” and Narratives of Atrocity: Historical Backgrounds to the Culture of Testimony’ (2005) 17(2) Yale Journal of Law and the Humanities 253, 259. 15 Paul J Crutzen and Eugene J Stoermer, ‘The “Anthropocene”’ (2000) 41 (May) Global Change Newsletter 17, 17. 16 Steffen (n 10) 93. 17 Ibid 94. 18 Johan Rockstrom et al, ‘A Safe Operating Space for Humanity’ (2009) 461(7263) Nature 472.

Narrative of rights on a warming planet  97 Justice. We are yet to see substantive action on the part of nation states and the international community to redress climate injustice. The correlation between climate change and human rights infringements has been acknowledged over many years in numerous international documents. The 2002 Bali Principles of Climate Justice19 states that ‘the perpetration of climate change violates the Universal Declaration On Human Rights and the United Nations Convention on Genocide’. In the Male’ Declaration of 2007, 20 Small Island Development States called for further assessment of the impact of climate change on human rights by the Office of the United Nations High Commissioner for Human Rights and the United Nations Human Rights Council. The Office of the United Nations High Commissioner for Human Rights subsequently produced a report in 2009 in which it was acknowledged that climate change negatively impacts upon a range of recognised human rights, including the right to life, the right to adequate food, the right to water, the right to health, the right to adequate housing and the right to self-determination.21 Both organisations have continued, through resolutions, reports and activities, to draw attention to the human rights impacts of climate change. These included a submission to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change in Paris (‘COP 21’) in December 2015, in which it was recommended that the new agreement ‘specifically address the human rights impacts of climate change and be consistent with existing human rights agreements, obligations, standards and principles’.22 Prior to COP 21, in February of the same year, the non-binding voluntary Geneva Pledge for Human Rights in Climate Action23 was announced by 18 countries; the Pledge emphasises the importance of addressing the human rights implications of climate change and allowing human rights to inform climate responses. Nevertheless, the signed version of the Paris Agreement refers to human rights only in its Preamble.24

19 International Climate Justice Network, Bali Principles of Climate Justice (29 August 2002) . 20 Small Island Developing States, Malé Declaration on the Human Dimension of Global Climate Change (adopted 14 November 2007) . 21 Office of the United Nations High Commissioner for Human Rights, Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights, UN Doc A/HRC/10/61 (15 January 2009). 22 Office of the High Commissioner for Human Rights, ‘Understanding Human Rights and Climate Change’, Submission to the 21st Conference of Parties to the United Nations Framework Convention on Climate Change, 27 November 2015, 28 . 23 Geneva Pledge for Human Rights in Climate Action, 13 February 2015 . 2 4 Paris Agreement, opened for signature 22 April 2016, [2016] ATS 24 (entered into force 4 November 2016). The Preamble states that: ‘Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the

98  Narrative of rights on a warming planet Seeking rights-based remedies In addition to these documents, the pursuit of remedies by litigants and petitioners has drawn further attention to the deleterious impact of climate change on human rights. There has been a noticeable escalation in the number of such human rights-based proceedings in recent years. These proceedings, irrespective of outcome, serve to highlight ‘the “human face” of climate disaster’.25 I shall outline here some key developments, in which the focus is on the plight of past, present and future victims of climate change, on possible corporate culprits, on the responsibility and potential liability of State actors, and on the need to both protect victims through mitigation initiatives and obtain some form of compensation for rights which have been infringed. A number of obstacles have to be overcome for such proceedings to succeed; these pertain to causation, attribution, accuracy of future modelling and extraterritoriality.26 In 2005, the Inuit in the United States and Canada lodged a historic petition with the Inter-American Commission on Human Rights, seeking relief from the human rights violations caused by the greenhouse gas emissions of the United States and consequent global warming. Referencing the American Declaration of the Rights and Duties of Man, 27 the petition enumerated the rights of the Inuit people impacted by climate change: the rights to enjoy the benefits of their culture, rights to use and enjoy their traditional lands, rights to use and enjoy their personal property, rights to preserve their health, rights to life, physical integrity and security, rights to their own means of subsistence and rights to residence, movement and inviolability of home.28 In 2006, the Commission refused to rule on the petition. Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Conference, then requested a hearing on the linkages between climate change and human rights, which took place in 2007.29 Ultimately, the Commission did not make a ruling. Despite this, the lodging of the petition constituted a significant step in the evolution of a human rights narrative around climate change, one which furthermore took into account the traditions and voices of indigenous people. It was ‘a telling of the story’, in ‘the language … of international human rights law’, of the responsibility of the

25 26 27

28 29

rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity.’ Jacqueline Peel and Hari M Osofsky, ‘A Rights Turn in Climate Change Litigation?’ (2018) 7(1) Transnational Environmental Law 37, 67. Ibid 46. American Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Bogotá, Colombia, 1948 . Hari M Osofsky, ‘The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous People’s Rights’ (2007) 31(2) American Indian Law Review 675, 685–6. Ibid 676.

Narrative of rights on a warming planet  99 United States for the devastating impacts of climate change on the Inuit people,30 and it took place in a formal legal arena. A further unfolding of the human rights narrative in the climate change context through an inquiry process has taken place in the Philippines. In 2015, in response to the devastation left in the wake of Typhoon Haiyan and other climate-related disasters, Greenpeace South East Asia, a number of community groups and various individuals lodged a petition with the Commission on Human Rights of the Philippines, arguing that 47 of the world’s largest oil, gas, coal and cement companies, the so-called Carbon Majors, are responsible for numerous human rights violations in the Philippines. At the beginning of 2016, the Commission commenced a National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People, described by Greenpeace as the ‘world’s first human rights investigation into corporate responsibility for climate change’.31 More than half of the corporations listed in the petition failed to respond to it.32 The first public hearing was held in the Philippines in March 2018, with five subsequent hearings in 2018. Two of these took place in London and New York ‘in an attempt to nudge the Carbon Majors to participate’;33 this strategy proved to be unsuccessful, with none of the corporations testifying or participating in the hearings.34 Commissioner Cadiz, Chair of the Inquiry, has described the proceedings as dialogic rather than as adversarial; there was an emphasis on victims’ and survivors’ stories as told by petitioners.35 It is anticipated that the Commission will hand down its findings in mid-2019. As highlighted already in Chapter 2, human rights infringements have also been raised in argument in recent climate change lawsuits. In some proceedings, litigants have relied upon constitutional rights to a healthy environment and corresponding State obligations to provide a healthy environment. The right to a healthy environment as a collective right falls within the third generation of recognised international human rights but litigants are also arguing that various first generation civil and political human rights, including the fundamental right 30 Ibid 694. 31 Greenpeace, ‘World’s First Human Rights Investigation into Corporate Responsibility for Climate Change Intensifies’ (Press Release, 10 December 2017) . 32 ‘Company Response Status’, Business and Human Rights Resource Centre (Post) . 33 Ucilia Wang, ‘Philippines Human Rights Commission Begins Climate Hearings Vs Fossil Fuel Giants’, Climate Liability News (online, 27 March 2018) . 3 4 Isabella Kaminski, ‘Can Fossil Fuel Companies Be Held Responsible For Human Rights?’, Climate Liability News (online, 8 November 2018) . 35 Republic of the Philippines Commission on Human Rights, ‘PHL at the Forefront of Seeking Climate Justice with CHR’s National Inquiry on the Effects of Climate Change to Human Rights’ (Press Release, 28 March 2018) .

100  Narrative of rights on a warming planet to life, are jeopardised by the climate change impacts of inadequate or counterproductive decision-making on the part of their governments. Rights arguments were, for instance, raised in the Urgenda decision.36 Although the court’s finding for the litigants was based upon its expansive reading of the government’s tortious duty of care rather than on rights infringements, Jacqueline Peel and Hari Osofsky have commented upon the significance in the court’s use of rights as ‘an interpretative tool’ in developing its reasoning in relation to the duty of care,37 thereby foreshadowing the role which rights can play in future cases in a court’s interpretation of a range of both statutory and common law obligations relating to climate change.38 The appellate court in 2018, in disallowing the government’s appeal,39 emphasised even more strongly the rights-based nature of the government’s duty to the litigants, stating that its duty arose from Articles 2 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 40 (‘ECHR’). These Articles protect, respectively, the right to life and the right to private life, family life, home and correspondence. In the Leghari case in Pakistan, also considered in Chapter 2, fundamental rights were raised in argument and Judge Syed Mansoor Ali Shah acknowledged the importance of such rights in relation to mitigation efforts. He held that: Right to life, right to human dignity, right to property and right to information under articles 9, 14, 23 and 19A of the Constitution read with the constitutional values of political, economic and social justice provide the necessary judicial toolkit to address and monitor the Government’s response to climate change.41 Rights arguments feature prominently in the Juliana case. As discussed in Chapter 3, the case forms part of the Children’s Trust lawsuits and draws upon the atmospheric public trust arguments that ground these proceedings. Here, however, in addition to the alleged violation of the public trust doctrine, the young plaintiffs are arguing that the United States government, in continuing to ‘permit, authorize, and subsidize fossil fuel extraction, development, consumption and exportation’42 in flagrant disregard of the many studies and reports which have alerted it to the significant harm caused by its actions, has thus infringed 36 Urgenda v Netherlands (Hague District Court, ECLI:NL:RBDHA:2015:7196, 24 June 2015). 37 Peel and Osofsky (n 25) 38. 38 Ibid 41, 50–1, 58–60. 39 Netherlands v Urgenda (The Hague Court of Appeal, ECLI:NL:GHDHA:2018:2610, 9 ­October 2018). 40 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). 41 Leghari v Federation of Pakistan (Lahore High Court, WP No 22501/2015, 4 September 2015) [7]. 4 2 Juliana v United States (D Or, No 6:15-cv-01517-TC), First Amended Complaint for Declaratory and Injunctive Relief, 9 October 2015 [7].

Narrative of rights on a warming planet  101 upon the plaintiffs’ fundamental constitutional rights to life, liberty and property under the Due Process Clause of the Fifth Amendment to the United States Constitution, and discriminated against them.43 In pre-trial proceedings, there has been some significant judicial acknowledgment of the validity of these arguments and the importance of the fundamental rights at stake.44 In November 2016, Judge Aiken, upholding the findings and recommendation of Magistrate Judge Coffin’s denial of the defendants’ motions to dismiss, held that she had ‘no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society’.45 Constitutional rights have also underpinned recent litigation by an organisation of Swiss ‘senior women’, and a Norwegian youth organisation, against their respective governments. Senior Women for Climate Protection Switzerland commenced their action by way of petition to four government authorities in 2016; they have argued that the Swiss government’s failure to introduce necessary greenhouse gas reduction measures constitutes a violation of Article 10 of the Swiss Constitution,46 which guarantees the right to life, Articles 73 47 and 74 48 of the Swiss Constitution, and Articles 2 and 8 of the ECHR.49 When the authorities declined to handle the matter, the organisation unsuccessfully sought review of this decision from the Federal Administrative Court. 50 The organisation is now considering an appeal to the Federal Supreme Court. 51 In 2017, the Norwegian youth organisation Nature and Youth in conjunction with Greenpeace Nordic Association argued unsuccessfully in the Oslo District Court that the government’s grant of oil and gas licences for deep sea extraction in the Barents Sea was unconstitutional, relying upon the right to a healthy, productive and diverse environment contained in Article 112 of the Norwegian Constitution.52 Article 112 specifically states that this right must be safeguarded for future generations.

43 4 4 45 4 6 47

48

49 50 51

52

Ibid [279], [292]. See discussion in Peel and Osofsky (n 25) 56–7. Juliana v United States, 217 F Supp 3d 1224, 1251 (D Or 2016). Federal Constitution of the Swiss Federation (Switzerland, 1999). Article 73 states that: ‘The Confederation and the Cantons shall endeavour to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population.’ Article 74 states that: ‘The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance’ and ‘shall ensure that such damage or nuisance is avoided.’ These articles protect, respectively, the right to life and the right to respect for private and family life. Cordelia Christiane Bahr et al, ‘KlimaSeniorinnen: Lessons from the Swiss Senior Women’s Case for Future Climate Litigation’ (2018) 9(2) Journal of Human Rights and the Environment 194, 195. Lisa Sturdee, ‘Swiss Court Rejects Grannies’ Climate Plea’, Climate Liability News (online, 11 December 2018) . Constitution of the Kingdom of Norway (Norway, 1814).

102  Narrative of rights on a warming planet The Norwegian District Court held, inter alia, that ‘emissions of CO2 abroad from oil and gas exported from Norway are irrelevant when assessing whether the decision entails a violation of Article 112’.53 An appeal has been filed in the Norwegian Supreme Court on the basis that the District Court erred in its interpretation of the application of Article 112. A rights narrative constructed around the human right to a healthy environment, fundamental human rights, and the rights of nonhuman species and ecosystems led to a successful outcome in climate litigation in the Colombian Supreme Court in 2018. In the Future Generations case, discussed in the previous chapter, the judges reversed the decision of a lower court and ruled that the Colombian rainforest was the subject of rights.54 Furthermore, the youth litigants’ rights to ‘life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem’.55 The year 2018 was remarkable for a slew of rights-based climate lawsuits launched in various countries. In July, in the so-called People’s Climate case, ten families from Portugal, Germany, France, Italy, Romania, Kenya and Fiji and an association of indigenous Sami youth from Sweden commenced a legal action against the European Parliament and the Council of the European Union.56 They are challenging the validity of existing European Union regulations and seeking more ambitious climate change targets on the basis that climate change threatens their fundamental human rights, as enshrined in the Charter of Fundamental Rights of the European Union 2000,57 in European Union primary law and in international law. In October, in the United States, the Animal Legal Defense Fund filed a lawsuit in the Oregon District Court alleging that the fundamental constitutional right to freedom and liberty is being infringed by government policies and actions, including the subsidising of fossil fuel industries, that jeopardise wilderness areas.58 Also in October, three German families of organic farmers commenced litigation against the German government, arguing that their rights to life and health are infringed by the government’s 53 Greenpeace Nordic Association and Nature and Youth v Norway (Oslo District Court, No 16-166674TVI-OTIR/0, 4 January 2018), unofficial tr, 21. 54 ‘Climate Change and Future Generations Lawsuit in Colombia: Key Excerpts from the Supreme Court Decision’, DeJusticia (Post, 13 April 2018) . 55 Ibid. 56 Carvalho v European Parliament (European General Court, No T-330/18). 57 Charter of Fundamental Rights of the European Union [2012] OJ C 326/02. These include the right to life (Article 2), the right to physical integrity (Article 3), the rights of children (Article 24), the right to engage in a work and to pursue a freely chosen or accepted occupation (Article 15), the right to conduct a business (Article 16), the right to property (Article 17) and the right to equal treatment (Articles 20, 21). 58 Animal Legal Defense Fund v United States (D Or, No 6:18-cv-01860); see Seamus McGraw, ‘Latest Climate Suit Vs US Government Launched By Animal Rights Group’, Climate Liability News (online, 22 October 2018) .

Narrative of rights on a warming planet  103 failure to reduce greenhouse emissions.59 In November, the Canadian youth organisation ENvironnement JEUnesse applied to bring a class action against the federal government on behalf of all citizens of Quebec aged 35 and under,60 seeking damages and a court order on the basis that the government’s failure to set and meet effective emission targets violates rights enshrined in the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. Finally, the climate lawsuit instigated in March 2019 by four French organisations against the French government draws in part on the government’s obligations arising from the ECHR.61

Mitigation initiatives and human rights These recent developments demonstrate that activists are increasingly deploying a rights narrative in climate lawsuits with, thus far, a chequered record in terms of successful outcomes. Conversely, however, human rights can provide the ‘justificatory basis’62 for activities that play a role in exacerbating climate change and in environmental degradation generally. Consequently, a rights narrative can generate powerful counter-arguments to any legislative attempts to limit or contain such activities. In particular, corporate tricksters can enlist a narrative of rights in ways that stymie mitigation efforts and undercut efforts to generate public awareness of the urgency of the climate change crisis. It is, however, the right to development rather than corporate rights which has tended to dominate any discussion of the inherent incompatibility of certain human rights and mitigation initiatives. The right to economic, social, cultural and political development, one of the ‘third generation’ collective rights in international human rights law, was recognised as part of international human rights discourse in 1986, with the proclamation of the United Nations Declaration on the Right to Development in a United Nations General Assembly resolution.63 China and India, in particular, have argued strongly that that they should not have to comply with the same emission targets as wealthy nations in the Global North.

59 Dana Drugmand, ‘German Government Faces Lawsuit over Its Failure to Meet Climate Goals’, Climate Liability News (online, 28 October 2018) . 60 Ingrid Peritz, ‘Quebec Group Sues Federal Government Over Climate Change’, The Globe and Mail (online, 26 November 2018) . 61 Notre Affaire à Tous, Greenpeace France, Fondation Pour La Nature et L’Homme and Oxfam France, ‘Inaction Over Climate Change: Let’s Fight For Justice’ (Press Release, 18 December 2018) . 62 See Kotze (n 1) 254. 63 United Nations Declaration on the Right to Development, GA Res 41/128, UN Doc A/RES/41/ 128 (adopted 4 December 1986).

104  Narrative of rights on a warming planet These arguments have played a key role in ongoing international negotiations on climate change responses. The Preamble in the 1992 United Nations Framework Convention on Climate Change acknowledges the need for international cooperation in responding to climate change ‘in accordance with [the] common but differentiated responsibilities and respective capabilities’ of different nations.64 Article 3 reiterates this phrase and emphasises the need to respect the requirements of developing countries; developed nations are required to take the lead in combating climate change.65 The principle of common but differentiated responsibilities and respective capabilities has thus shaped the international climate change regime for nearly three decades and continues to do so.66 A considerable number of commentators have looked at the impact of the exercise of the right to development on climate change mitigation efforts, and at the impact of climate change on the right to development. Important considerations of intra- and inter-generational equity and climate justice are central to this debate. Proposals for equitable solutions have been put forward, including the ‘contraction and convergence’ mechanism proposed and popularised by Aubrey Meyer of the Global Commons Institute67 in the United Kingdom; under this model, an overall reduction in global greenhouse gas emissions would be achieved by an equitable distribution of emission quotas amongst the world’s nations. In the following sections, I examine in more detail aspects of the problematic intersection of human rights and climate disruption by considering three rights that feature less prominently in public and political decision making on climate change: namely, the right to freedom of movement, property rights and right to freedom of speech. These rights are first generation human rights and share, with the right to development, the paradoxical quality of being increasingly affected by climate change impacts but also contributing to the climate change phenomenon. I focus on these rights as, unlike the right to development, these are rights of value and importance for citizens of the Global North; the interrelationship between these rights and climate change thus makes clear the global relevance and vulnerability of the rights narrative in the context of the climate crisis. I turn to climate fiction and to fictitious depictions of wild time in considering the role played by these particular rights in a time of increasing climate disruption. As the following discussion makes clear, the relationship between climate change and the narrative of human rights is complex and problematic. The impact of the narrative of human rights on climate change is as critically important as the impact of climate change on the ongoing exercise of human rights.

6 4 United Nations Framework Convention on Climate Change, opened for signature 20 June 1992, 1771 UNTS 107 (entered into force 21 March 1994), Preamble. 65 Ibid Art 3. 6 6 Lavanya Rajamani, ‘The Principle of Common But Differentiated Responsibilities and Respective Capabilities in the International Climate Change Regime’ in Rosemary Lyster and Robert RM Verchick (eds), Research Handbook on Climate Disaster Law (Edward Elgar, 2018) 46. 67 See Henry Nicholls, ‘Fiddling with Climate Change’ (2012) 2(1) Nature Climate Change 17.

Narrative of rights on a warming planet  105 Freedom of movement Climate change has already led to displacement and will increasingly do so. Widespread displacement of populations jeopardises a number of human rights, not least the right to self-determination.68 The vulnerability of nation states comprised of low-lying Pacific atoll islands, such as Kiribati, Tuvulu and the Marshall Islands, has been well documented. The Maldives and Torres Strait Islands constitute groups of islands also poised to experience substantial inundation as a consequence of sea level rise. The concerted efforts of small island nations to draw the world’s attention to their plight, and their pleas for mitigation, have failed to lead to decisive action. As a consequence, population displacement is an unpalatable but seemingly inevitable future outcome. A considerable degree of displacement will occur and has already occurred within national borders. Planned relocations as a consequence of climate change are taking place. In 2016, the remaining Native American residents of southern Louisiana’s Isle de Jean Charles, which has already lost most of its land and population due to rising sea levels and storm surges, received $52 million of federal funding from the United States government to relocate as a community.69 By the end of 2017, Fiji had already relocated three villages to higher ground, with plans to relocate an additional 43.70 On the other hand, despite extensive media coverage of the Carteret Islanders as the world’s ‘first official refugees of global warming’,71 their mass relocation from their traditional atoll islands to the high island of Bougainville in Papua New Guinea has thus far failed to eventuate due to governance and funding issues and unavailability of land.72 With or without the assistance of their governments, climate displaced persons will increasingly be forced to escape inundation and flooding, erosion and increasing storm surges, widespread drought, and escalating hostilities which are already occurring as a consequence of such natural disasters73 and which

68 ICCPR (n 8) Art 1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 69 Lauren Zanolli, ‘Louisiana’s Vanishing Island: the Climate “Refugees” Resettling for $52 Million’, The Guardian (online, 15 March 2016) . 70 Alister Doyle, ‘Fiji to Move More Than 40 Villages Inland as Seas Rise’, Reuters (online, 17 November 2017) . 71 Quoted in John Connell, ‘Last Days in the Carteret Islands? Climate Change, Livelihoods and Migration on Coral Atolls’ (2016) 57 Asia Pacific Viewpoint 3, 3. 72 Ibid 13. 73 The Syrian civil war and consequent refugee crisis have been linked to climate change, although this is contentious; see, for instance, Barack Obama, ‘Remarks at the United States Coast Guard Academy Commencement’ (Speech, United States Coast Guard Academy), 20 May 2015 , in which he stated: ‘It’s now believed that drought and crop failures and high food prices helped fuel the early unrest in Syria, which descended into civil war in the heart of the Middle East.’

106  Narrative of rights on a warming planet will undoubtedly increase in frequency as resources dwindle on a global scale.74 Property owners in the Global North with the capacity to sell and move from vulnerable areas are already doing so.75 Other groups will also attempt to retreat to more secure areas as climate disruption intensifies, thereby placing increasing stress upon existing populations and infrastructure. Climate change is associated with large-scale movement of people, within and beyond national boundaries. In climate fiction, we find stark depictions of climate change displacement and, in many cases, significant infringements of human rights as a consequence of this displacement. The plight of climate refugees is a powerful theme in Sally Abbott’s novel Closing Down,76 with its appalling but plausible refugee reality television show ‘Race for Home’,77 its over-crowded, inadequate, international refugee stations78 where people ‘[sit] in rows … waiting to die’,79 the adjacent resorts where refugees will be caged and killed for sport,80 and its hordes of walking people81 heading to some unspecified destination in the north as much of regional Australia is closed down. In Exodus, in a world largely inundated as a consequence of sea level rise, Julie Bertagna conjures up for her young adult readers a world almost completely covered in water and images of climate refugees in boats and rafts, crammed together in miserable conditions outside the large sea walls which protect the so-called sky cities. There is no land or harbour, only a blurred mass that heaves and bobs around the city. A huge, dull-coloured live thing. The vile, rotting stench of an open drain hits as the clustering thing sharpens into focus. Mara gasps as she sees it’s a heaving mass of humanity. A chaos of refugee boats crams the sea around the city and clings like a fungus to the huge wall that seems to bar all entry to refugees.82 A sea wall also encircles the United Kingdom following ‘the Change’, in John Lanchester’s The Wall;83 the Wall is intended to prevent the ‘Others’, the masses fleeing inundated or otherwise inhospitable homelands, from illegally entering the country.

74 See, for instance, Gwynne Dyer, Climate Wars. The Fight for Survival as the World Overheats (Scribe, 2010). 75 Oliver Milman, ‘Climate Gentrification: the Rich Can Afford to Move – What about the Poor?’, The Guardian (online, 25 September 2018) . 76 Sally Abbott, Closing Down (Hachette, 2017). 77 Ibid 147, 232–3. 78 Ibid 125–6. 79 Ibid 126. 80 Ibid 139–40. 81 Ibid 200–1. 82 Julie Bertagna, Exodus (Walker and Co, 2009) 72. 83 John Lanchester, The Wall (Faber and Faber, 2019).

Narrative of rights on a warming planet  107 In Doris Lessing’s Mara and Dann. An Adventure,84 a brother and sister experience drought, famine and war as they make their way across the African continent to the ice-covered north. Unlike other instances of climate fiction, the story is set many thousands of years hence, during an Ice Age of the future, but the southern part of a futuristic Africa shares uncanny similarities to a ­Hothouse Earth and the desperation of its central characters as they travel through an inhospitable environment speaks to the plight of the climate dispossessed. Dann describes ‘people on the move everywhere, looking for water or something better’. He states that: ‘Sometimes I think that all the people alive are on their feet walking somewhere’.85 In this climate-ravaged landscape, cities are ‘as temporary as dreams’.86 Such grim depictions foreshadow the crisis to come as habitable terrain rapidly diminishes, violence breaks out over dwindling resources, and nation states find themselves ill-equipped to deal with the displaced and the dispossessed. Disregard for the plight of refugees is already endemic. It is manifested, for instance, in the callous disregard of a sequence of Australian governments for asylum seekers. Although Australia is a wealthy nation well positioned geographically to receive refugees from the Pacific small island states, the nation’s refusal to assume responsibility for the resettlement of detained asylum seekers indicates that climate refugees are unlikely to be welcomed within its borders. There is an unpalatable irony in the fact that Nauru, an offshore detention facility utilised by the Australian government, is one of the low-lying Pacific islands facing the imminent threat of sea level rise and enforced relocation; Naomi Klein has pointed out that ‘[t]omorrow’s climate refugees have been recruited into service as today’s prison guards’.87 International refugee law fails to make provision for climate change refugees, as became clear when the case of Ioane Teitiota came before the New Zealand courts. Teitiota sought refugee status in New Zealand, arguing that climate change would soon render his island home of Kiribati uninhabitable. While that argument was not in itself contested, the decision of the New ­Zealand High Court at first instance and the appellate decisions of the Court of Appeals and the Supreme Court of New Zealand highlight the inadequacy of the 1951 Refugee Convention,88 with its requirement for a ‘well-founded fear of being persecuted’, in its application to climate refugees fleeing natural emergencies and homelands afflicted by extreme weather events and sea level rise. The Supreme Court did leave open the future possibility that ‘environmental degradation resulting from climate change or other natural disasters could … create a pathway

84 85 86 87

Doris Lessing, Mara and Dann. An Adventure (Flamingo, 1999). Ibid 84. Ibid 361. Naomi Klein, ‘Let Them Drown. The Violence of Othering in a Warming World’ (2016) 38(11) London Review of Books 11. 8 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 8 (entered into force 22 April 1954).

108  Narrative of rights on a warming planet into the Refugee Convention or other protected person jurisdiction’.89 However, the judges were in agreement that Teitiota’s claim for recognition as a refugee was ‘fundamentally misconceived’ and ‘attempts to stand the Convention on its head’.90 Thus, the implementation of international refugee law in its current framing hinders the freedom of movement of the stateless and displaced and does not accommodate those in the frontline of climate change impacts. In light of this, there have been some recent international attempts, including the intergovernmental 2018 Global Compact for Safe, Orderly and Regular Migration, to recognise the plight of those displaced by climate change.91 Yet it is likely that national border constraints will tighten rather than relax as climate change further impacts on available resources and habitable terrain. New Zealand, for instance, increasingly represents a climate change haven, not only for wealthy Americans who are purchasing properties to avoid future doomsday scenarios92 but also for citizens of small island Pacific states. The nation recently banned the sale of existing homes to foreigners.93 At the same time, it is, however, considering the issue of a humanitarian visa for climate change refugees.94 Freedom of movement is recognised as a fundamental civil and political right in international human rights law,95 but there are insidious dimensions to an unregulated freedom of movement, as a right both affected by and causally linked to climate change. In particular, freedom of movement in the form of the air travel of a privileged sector of the Global North has played and continues to play a key causal role in climate change. In recent years, China has also made a substantial contribution to international aviation emissions.96 Greenhouse gas

89 Ioane Teitiota v The Chief Executive of Ministry of Business, Innovation and Employment [2015] NZSC 107 (1 April 2015) [13]. 90 Ioane Teitiota v The Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA 173 (1 May 2014) (Wild J) [40]. 91 Rosemary Lyster and Maxine Burkett also refer to ‘the new synergies between the Paris Agreement, The Sendai Framework for Disaster Risk Reduction 2015–2030, and the 2015 Sustainable Development Goals’ and the 2016 Task Force on Displacement under the Warsaw International Mechanism for Loss and Damage; Rosemary Lyster and Maxine Burkett, ‘Climate-Induced Displacement and Climate Disaster Law: Barriers and Opportunities’ in Lyster and Verchick (eds) (n 66) 97, 98. 92 Evan Osnos, ‘Doomsday Prep for the Super-Rich’, The New Yorker (30 January 2017) . 93 Eleanor Ainge Roy, ‘“Tenants on Our Own Land”: New Zealand Bans Sale of Homes to Foreign Buyers’, The Guardian (online, 15 August 2018) . 94 Rick Noack, ‘A New Zealand Visa Could Trigger the Era of “Climate Change Refugees”’, The Sydney Morning Herald (online, 1 November 2017) . 95 Universal Declaration (n 7) Art 13; ICCPR (n 8) Art 12. 96 See ‘China Contributes 549 Mln Passengers to Global Aviation Industry in 2017’, Xinhua (online, 22 January 2018) .

Narrative of rights on a warming planet  109 emissions from air travel are significant and rising 97 and yet there has been no serious attempt to curtail freedom of movement in the airspace. Rather, the inclusion of carbon offsets in the purchase of air tickets misleadingly suggests that conscious consumerism and, by extension, the marketplace, can address any climate concerns raised by air travel. Authors of a recent study on aviation offsetting have pointed out that ‘the way carbon offsetting is framed is often incorrect from a scientific point of view’ and that most airlines have failed to make it clear that the emissions from air travel cannot be neutralised by offsets.98 Activists have sought to highlight the hidden costs and climate impact of air travel by staging protests on and near runways at major airports99 and initiating climate lawsuits designed to prevent runway extensions and airport expansions.100 Flying, in professional geographer Joseph Nevins’ words, ‘dwarfs all other single acts of individual consumption’.101 Some scientists and activists, acknowledging that ‘hour for hour, there’s no better way to warm the planet than to fly in a plane’,102 have voluntarily chosen to eschew air travel.103 Teenage climate activist Greta Thunberg, who launched the global climate school strike movement described in the previous chapter, does not fly and has persuaded her parents not to fly, even though her mother’s career as a famous opera singer depended on this mode of transportation. If Greta travels to the United Nations  97  See, eg, Brad Plumer, ‘US Carbon Emissions Surged in 2018 Even as Coal Plants Closed’, The New York Times (online), 8 January 2019 .  98 Susanne Becken and Brendan Mackey, ‘What Role for Offsetting Aviation Greenhouse Gas Emissions in a Deep-Cut Carbon World?’ (2017) 63 Journal of Air Transport Management 71, 78.  99 See, eg, Jessica Elgot and Haroon Siddique, ‘Heathrow Airport Disrupted as Climate Activists Protest on Northern Runway’, The Guardian (online, 14 July 2015) . 100 In 2018 Plan B and Friends of the Earth commenced a lawsuit against the British Secretary of State for Transport, challenging his decision to support the expansion of Heathrow airport on the basis that he, inter alia, failed to consider adequately the United Kingdom’s obligations under the Paris Agreement: Soila Apparicio, ‘Campaigners’ Case against Third Runway’, The Ecologist (14th March 2019) . In the Third Runway at Vienna International Airport case, a challenge was mounted to the decision to approve a third runway at the Vienna-Schwechat international airport. The Federal Administrative Court took rights arguments into account in deciding that the proposed third runway was contrary to the public interest but this decision was subsequently overturned by the Constitutional Court. The case is discussed in Peel and Osofsky (n 25) 58–9. In 2017, Friends of the Irish Environment mounted an unsuccessful legal challenge to stop a proposed third runway at Dublin Airport on the basis that it would accelerate the pace of climate change. 101 Joseph Nevins, ‘Academic Jet-Setting in a Time of Ecological Destabilization: Ecological Privilege and Professional Geographic Travel’ (2014) 66(2) The Professional Geographer 298, 306. 102 Peter Kalmus, ‘How Far Can We Get Without Flying?’, Yes! Magazine (11 February 2016) . 103 Ellie Broughton, ‘These People Have Given Up Flying to Help the Environment’, Huffington Post (online, 7 March 2019) .

110  Narrative of rights on a warming planet climate summit in New York in September 2019, she will do so by container ship.104 Melbourne-based artist and activist group Tipping Point organised a conference called Going Nowhere, staged simultaneously in Melbourne and Cambridge, to highlight the possibilities for international, creative collaboration without air travel. Other ‘international experiment[s] in carbon-conscious conferencing’105 are taking place. Yet to avoid or even criticise air travel is to invite ridicule from the overwhelming number of people who condone it and either regularly engage in it or aspire to do so. The wealthy, the aspirational and the not so wealthy in the Global North have normalised and trivialised frequent air travel, even without reference to their right to freedom of movement. The economic and social importance of readily available, reliable air travel in the Global North was made apparent when a number of drones disrupted pre-Christmas flights at Gatwick airport in the United Kingdom in December 2018; expressions of outrage, a militarised response,106 and the subsequent introduction of draconian penalties107 ensued. In her short story collection, Flight Behaviour, Helen Simpson satirises the complacency of our generation with respect to profligate jetsetting. Her ‘Carbon Coach’, in ‘Ahead of the Pack’, promotes his services by anticipating a time when ‘we’ll be casting around for scapegoats’.108 His suggestions include removing ‘the Antipodean leg of lamb’ and other products with high ‘atmospheric calorie content’ from the fridge,109 ‘editing photo albums’ to ‘[disappear] all visual evidence of Dad’s gap year in South America and Mum on Ayers Rock’, and selling the ‘hot potato’ of a second house immediately.110 In ‘The Tipping Point’, Simpson makes clear the extent to which air travel forms part of our cultural expectations in the Global North by giving voice to the exasperation of an English academic, who finds his principled ex-lover’s decision to end their long-distance relationship on the basis of its accumulated air miles completely unreasonable: ‘What possible difference can it make whether 104 Somini Sengupta, ‘Becoming Greta: “Invisible Girl” to Global Climate Activist with Bumps along the Way’, The New York Times (online, 18 February 2019) . 105 Displacements, a virtual conference of the Society of Cultural Anthropology, took place in April 2018. 106 Jacquelin Magnay, ‘Fury over Gatwick Airport Drone Inaction, Fears of Copycat Terrorists’, The Australian (online, 22 December 2018) . 107 Jacquelin Magnay, ‘Drone-Buster Bazookas on Way after Gatwick Airport Incident’, The Australian (online, 24 December 2018) . 108 Helen Simpson, In-Flight Entertainment (Jonathon Cape, 2010) 34. 109 Ibid 33. 110 Ibid 34.

Narrative of rights on a warming planet  111 I get on a plane or not?’111 He himself has no scruples about indulging in air travel: You used to have to join the Foreign Office if you wanted to travel on anything like this scale. Now everybody’s at it. The budget airlines arrived and life changed overnight. Sorry, but it’s true. The world’s our sweet shop. We’ve got used to it, we want it; there’s no going back.112 Freedom of movement in the form of unrestricted air travel cannot continue indefinitely, in light of the unpalatable realities of life on Hothouse Earth.113 Other writers of climate fiction have envisaged compulsory curtailment of our freedom of movement in belated response to the exigencies of the climate change crisis. In a futuristic short story, Homing Instinct, Dani McClain charts the response of one obstinate dissentient to ‘a new emergency rule that mandated that people lock themselves into a location’,114 gave everyone in the United States 90 days to ‘reposition’ themselves,115 and then restricted all ‘oil-dependent’ movement to 20 miles a month.116 In the civil reorganisation of Sarah Hall’s The Carhullan Army, movement is restricted, with people ‘bound … to their areas at the time of the collapse’.117 Cars, no longer available to the general population, are now ‘useless, husks of a privileged era’.118 Only government agents and members of the ruling Authority travel, usually by trains.119 Until the Authority is forced to use a military aircraft in its efforts to quell a women-led rebellion, Sister, the narrator, ‘had not seen anything put into the sky for almost ten years’.120

Property rights Issues of climate change displacement are linked to the vulnerability of property rights in a time of climate change. The profound impact of climate change on property cannot be understated. Nicole Graham has characterised the overlay of property rights on landscape as ‘lawscape’, writing that ‘what we see when we look at a landscape is a series of legally prescribed land use practices in action’.121

11 Ibid 67. 1 112 Ibid 68. 113 Will Steffen et al, ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115(33) PNAS 8252. 114 Dani McClain, ‘Homing Instinct’ in adrienne marie brown and Walidah Imarisha (eds), Octavia’s Brood. Science Fiction Stories from Social Justice Movements (AK Press, 2015) 239, 240. 115 Ibid 239. 116 Ibid 241. 117 Sarah Hall, The Carhullan Army (Faber and Faber, 2007) 9. 118 Ibid 20. 119 Ibid 9. 120 Ibid 206. 121 Nicole Graham, Lawscape: Property, Environment, Law (Routledge, 2011) 2.

112  Narrative of rights on a warming planet Rising sea levels, droughts and fire all threaten to destabilise or render redundant this ‘lawscape’. The volatile, precarious landscape of the future can best be characterised as a climatescape. Researchers are investigating the nature and viability of private and public property rights in this climatescape, and debating the applicability and usefulness of concepts such as accretion,122 the public trust,123 transferable development rights,124 the takings doctrine125 and disaster buyouts.126 Given its propensity to submerge small island states and coastal cities, reshape coastlines and render vast areas uninhabitable, climate change indiscriminately undermines the fundamental right not to be arbitrarily deprived of one’s property.127 ­Climate change destabilises current understandings of property rights. In Australia alone, according to findings released by the Coastal Council in 2014, more than $226 billion of commercial, industrial, road and rail and residential assets are endangered by a ‘quite plausible’, 1.1 metre sea level rise.128 Globally, in the absence of adaptation measures, coastal flooding will lead to projected annual losses of $US 1 trillion.129 Elizabeth Rush, documenting the impact of climate change and rising sea levels on the United States coastline, has argued that we must ‘[let] go of the static image of the coast that we have spent the last two centuries developing and attempting to defend’ and ‘begin to imagine the unthinkable: unsettling the American shore’.130 Property rights cannot retain their long-established foundational position in legal systems as climate change renders them temporary and tenuous. Ironically, however, in light of the threat that climate change poses to private property rights, these same rights have played a causal role in contributing to the phenomenon. It is, in part, the protected status and foundational position of private property rights, and the consequential devaluing of public property, that have impeded attempts to act on climate change despite clear scientific warnings

122 John R Corkill, ‘Ambulatory Boundaries in New South Wales: Real Lines in the Sand’ (2013) 3(2) Property Law Review 67. 123 Margaret E Peloso and Margaret R Caldwell, ‘Dynamic Property Rights: The Public Trust Doctrine and Takings in a Changing Climate’ (2011) 30(1) Stanford Environmental Law Journal 51. 124 John Sheehan et al, ‘Coastal Climate Change and Transferable Development Rights’ (2018) 35(1) Environmental and Planning Law Journal 87. 125 Daniel A Farber, ‘Governance Principles and Climate Disasters: Constitutional and Administrative Law Issues’ in Lyster and Verchick (eds) (n 66) 117, 122; John D Echeverria, ‘Climate Change and Property Law’ in Lyster and Verchick (eds) (n 66) 332, 340–6. 126 See Susan S Kuo, ‘The Uneasy Case for Disaster Buyouts’ in Lyster and Verchick (eds) (n 66) 235. 127 Universal Declaration (n 7) Art 17. This right is also enshrined in many Constitutions, including the Australian Constitution (section 51 (xxxi)) and the United States Constitution (Fifth Amendment). 128 Will Steffen, John Hunter and Lesley Hughes, Counting the Costs: Climate Change and Coastal Flooding (Climate Council of Australia, 2014) 23. 129 Ibid 33. 130 Elizabeth Rush, Rising. Dispatches from the New American Shore (Milkweed, 2018) 230.

Narrative of rights on a warming planet  113 and increasing public awareness of the problem for several decades. The continuing increase in global emissions of carbon into the atmosphere, which is a shared public rather than private domain, sits within Garrett Hardin’s (subsequently contested) paradigm of the tragedy of the commons;131 as Carol Rose has written, in reflecting upon the applicability of this famous ‘trope’ to the climate crisis, ‘[i]t is widely recognized that open access to a common resource disincentivizes forbearance about its use as well as investment in its conservation’.132 The over-zealous concern for private property at the expense of public property is deeply entrenched in Western culture. As is made clear in some instances of climate fiction, proprietorial preoccupations persist into the twenty-first century and represent a formidable obstacle to cooperative endeavours to deal with climate change. In Solar,133 for example, Ian McEwan’s incisive satire in which physicist Michael Beard becomes the unlikely entrepreneur behind a large-scale climate change mitigation initiative, an unsettling vignette demonstrates on a microscale the general incapacity of privileged citizens of the Global North to value or respect items of common property. The participants in a sponsored trip to the Arctic Circle, designed to promote climate change awareness and to generate cooperative interdisciplinary projects, are allocated various items of cold weather gear for the duration of the trip. As the trip proceeds, the collection becomes depleted and members of the group anonymously appropriate items assigned to others; ‘[t]o go out was to steal’.134 Beard takes a cynical delight in the ‘gathering entropy’ of the boot room and what it may portend for the future of the planet.135 He is not well disposed towards cooperative sharing arrangements: ‘[h]e did not like to be part of a group, but he did not want the group to know’.136 In a later section of the novel, Beard’s outrage at what he mistakenly believes is the appropriation of his snack and drink bottle by a fellow train traveller137 highlights the extent to which the proprietorial instinct runs deep; his feelings of affronted possessiveness mirror those experienced at the beginning of the novel when he discovers that his wife is having an affair.138 Barbara Kingsolver’s latest novel, Unsheltered, is a compelling examination of disintegrating houses, non-existent foundations and our misplaced belief in the

131 The vulnerability of a commons to over-usage by individual herders was highlighted by Garrett Hardin in ‘The Tragedy of the Commons’ (1968) 162(3859) Science 1243. Elinor Ostrom’s research challenged his thesis in that she demonstrated that many commons were and are managed cooperatively and successfully without over-exploitation; Elinor Ostrom, Governing the Commons. The Evolution of Institutions for Collective Action (Cambridge University Press, 1990). 132 Carol Rose, ‘Commons, Cognition and Climate Change’ (2017) 32(2) Journal of Land Use and Environmental Law 297, 305. 133 Ian McEwan, Solar (Jonathon Cape, 2010). 134 Ibid 78. 135 Ibid. 136 Ibid 62. 137 Ibid 124–5. 138 Ibid 4–5.

114  Narrative of rights on a warming planet inviolability of private property rights. As one character points out, it is impossible to follow the United States governmental emergency response instruction to ‘shelter in place’ during increasingly wild weather events, ‘when there isn’t a place’.139 In a fast approaching world of non-existent icecaps, underwater cities and waterless continents, ‘all the rules have changed’ but people stubbornly adhere to their old values and beliefs.140 ‘Here was the earthquake, the fire, the flood, and melting permafrost, with everyone still grabbing for bricks to put in their pockets rather than walking out of the wreck and looking for light.’141 In Alice Robinson’s The Glad Shout, a lovingly renovated and cherished family house cannot withstand the incursion of the ocean, ‘a wild thing from out there’,142 during a catastrophic storm surge. Isobel struggles to come to terms with the fact that ‘[t]hey are alive, but their house has drowned’.143 The ‘increasingly futile’ nature of ‘inhabitation and place attachment’ in a time of climate disruption is also a pervading theme144 in Steven Amsterdam’s 2009 novel Things We Didn’t See Coming.145 Aggrieved property owners are turning to legal systems, seeking resolution of the complex questions arising from the troubled interplay between property rights and climate change. The impact of climate change on Arctic sea ice and the subsequent threat to both public and private property were central considerations in the unsuccessful 2008 lawsuit in private and public nuisance instigated by the Native Village of Kivalina and City of Kivalina against 24 oil, energy and utility companies. The Inupiat Native Alaskan community faces relocation in light of the ongoing melting of the Arctic sea ice, which has exposed the village to storm surges and led to massive erosion. The community argued that the defendants are in large part responsible for the global greenhouse gases that have created its predicament. The claims in nuisance were based on the impact of the defendants’ activities on the plaintiffs’ public and private property rights.146 As was discussed in Chapter 1, the plaintiffs also alleged civil conspiracy on the part of the defendants. Although the legally protected status of private property rights has undoubtedly contributed to the climate crisis, activists can, ironically, use property rights to prevent the expansion of mining activities and thus encourage mitigation initiatives. This is illustrated in Timothy Morton’s example of a Canadian landholder who ‘exploited’ the category of intellectual property by copyrighting his 139 Barbara Kingsolver, Unsheltered (Faber and Faber, 2018) 409 (emphasis in original). 40 Ibid 410. 1 141 Ibid 436. 142 Alice Robinson, The Glad Shout (Affirm Press, 2019) 286 (emphasis in original). 143 Ibid 290. 144 Antonia Mehnert, ‘Things We Didn’t See Coming – Riskscapes in Climate Change Fiction’ in Sylvia Mayer and Alexa Weik Von Mossner (eds), The Anticipation of Catastrophe. Environmental Risk in North American Literature and Culture (Universitatsverlag Winter, 2014) 59, 63. 145 Steven Amsterdam, Things We Didn’t See Coming (Sleepers, 2009). 146 Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation, 663 F Supp 2d 863, 869 (N D Cal 2009), affirmed 696 F 3d 849 (9th Cir 2012).

Narrative of rights on a warming planet  115 land as art; ‘[n]ow the oil corporations that devastated the forests and fields around his house in Alberta, Canada, must find a way not to disturb the surface of his land when they expand’.147 As mentioned in Chapter 2, Wendy Bowman, an octogenarian farmer in the Hunter Valley in New South Wales and recipient of the Goldman Environmental Prize in 2017, successfully thwarted the expansion of Ashton’s open-cut coalmine in the Hunter Valley when the Land and Environment Court imposed, as a pre-condition of the expansion, the requirement that Yancoal purchase her family farm.148 She has adamantly refused to sell despite the substantial impact of surrounding coalmining activities. It is undoubtedly the case that climate change has a ‘legally disruptive’149 impact on property rights; this has been made apparent in a number of lawsuits. For instance, aggrieved farmer Peter Spencer mounted an unsuccessful challenge to New South Wales’ native vegetation clearance laws, on the basis that the Commonwealth was engaged in an unconstitutional acquisition of his property in an attempt to meet its targets in the Kyoto Protocol.150 Developers have clashed with local governments and other consent authorities in seeking to develop flood-prone and vulnerable coastal land, or found their development consents set aside by courts.151 Coastal property owners have resorted to litigation in their attempts to protect their properties with sea walls and other structures, as exemplified in the recent legal action taken by three Australian coastal property owners against the New South Wales Transitional Coastal Panel over its refusal of their development applications to carry out repair works on failing sea walls.152 Such challenges and conflicts will only intensify in number over time as climate change impacts are increasingly felt. As four commentators have recently written, ‘[t]he world of fixed and inflexible legal property rights is about to meet head-on the reality of a planet of raging changes to climate through rising sea levels and increasingly frequent and violent storm damage’.153 It is quite possible, in light of the unorthodox nature of some of these lawsuits, that courts will be compelled to abandon traditional understandings of property rights and adopt radically new concepts which are better suited to the ‘climatescape’ to come.

147 Timothy Morton, Dark Ecology: For a Logic of Future Co-Existence (Columbia University Press, 2016) 114. 148 Hunter Environment Lobby v Minister for Planning and Ashton Coal Operations Ltd (No 2) [2014] NSWLEC 129, upheld on appeal in Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc [2015] NSWCA 358 (20 November 2015). 149 Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) The Modern Law Review 176. 150 Spencer v Commonwealth of Australia [2015] FCA 754. 151 See, for instance, Platford v van Veenendaal (2018) 229 LGER A 101, in which the New South Wales Land and Environment Court invalidated a development consent for a beachfront dwelling on the basis that the consent authority had failed to consider the risk of coastal inundation; discussed in Brian Preston, ‘Mapping Climate Litigation’ (2018) 92(10) Australian Law Journal 774, 783. 152 Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel [2018] NSWLEC 207. 153 Sheehan et al (n 124) 100.

116  Narrative of rights on a warming planet Freedom of speech Freedom of speech is another fundamental right154 with an equivocal relationship to climate change. On the one hand, corporations and individuals have sought the protection of the fundamental right to freedom of speech as unreliable narrators, in order to legitimise the widespread circulation of corporate sponsored research results and false science and thus foster climate scepticism. In this context, the right has operated to block attempts at effective and timely responses to the climate change crisis. However, climate protesters have also invoked this right in relation to their activities, which are intended to draw attention to the crisis and mobilise public awareness. ExxonMobil’s assertion of its First Amendment rights155 in its 2018 petition lodged in the District Court of Tarrant County, Texas demonstrates that certain interpretations of this particular right can enable the perpetuation of unreliable climate narratives. This petition was a response to what ExxonMobil described as ‘a conspiracy’ on the part of ‘special interests and opportunistic politicians … to impose their view on climate change’ through, inter alia, ‘abusive law enforcement tactics and litigation in California’:156 namely, the actions in public nuisance mounted by various United States cities and counties against the Carbon Majors. The corporation asserted that: The facts currently in the public record suggest that one or more of the municipalities, operating in isolation or in a conspiracy with others, are abusing legal process to apply pressure on ExxonMobil and 17 other Texas-based energy companies, to change their perceived positions on climate change policy. It is improper under the United States and Texas Constitutions for municipal governments to restrict the range of permissible viewpoints by bringing lawsuits against those identified with disfavored policy positions.157 ExxonMobil has, thus far unsuccessfully, also argued that the New York Attorney General and Massachusetts Attorney General’s investigations into climate fraud infringe upon the corporation’s First Amendment rights.158 This reasoning highlights the dangerous possibilities in the corporate exercise of the right to free speech. It also signifies the opportunistic appropriation by the fossil fuel industry of the arguments of climate litigants and victims for its own

154 Universal Declaration (n 7) Art 19; ICCPR (n 8) Art 19. 55 The First Amendment to the United States Constitution contains, inter alia, a right to free 1 speech, stating that: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 156 In Re Exxon Mobil Corporation (DC Tex, No 096-287222-18), Verified Petition for Pre-Suit Depositions, 8 January 2018 [1]. 157 Ibid [110] 158 See discussion in Chapter 1.

Narrative of rights on a warming planet  117 purposes. There are historical antecedents for this; Sharon Beder has described the corporate capture and successful implementation of strategies developed by the environmental movement in its early manifestation.159 As already discussed in Chapter 1, the litigants in the Kivalina case alleged civil conspiracy on the part of the Carbon Majors, including ExxonMobil, in deliberately suppressing information about climate change. In its petition, ExxonMobil makes a similar claim of conspiracy, albeit for a completely different purpose, against climate litigants. The right to free speech can also be raised to protect from interference the activities of individuals whose views are aligned with those of climate sceptics. In 2017, a student organisation named Turning Point USA invoked its First Amendment right to freedom of speech in the United States District Court when Macomb Community College sought to prevent its ‘expressive activity’, which involved advocacy of fossil fuel usage, on the basis that the appropriate permit had not been issued. A settlement agreement was reached between the parties.160 On the other hand, freedom of speech is also important for climate protesters and activists. In Australia, increasingly draconian anti-protest legislation has been enacted in a number of States161 with potentially damaging consequences for environmental protesters.162 In 2017, Tasmanian legislation which targeted logging protesters was invalidated in a constitutional challenge,163 on the basis that it imposed an impermissible burden on the implied right to freedom of political communication in the Australian Constitution. In New South Wales, the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 penalises protesters who enter mining sites and ‘interfere’ with those sites; they now face up to seven years imprisonment and substantial fines. The ‘Wilpinjong three’ became the first protesters to be prosecuted under the New South Wales legislation when they staged a peaceful protest in 2017 at the entrance to the Wilpinjong coal mine near Mudgee, after the New South

159 Sharon Beder, Global Spin. The Corporate Assault on Environmentalism (Green Books, 2002) 16. The appropriation of activist strategies by conservative groups can also be seen in newly founded Australian group, Advance Australia, which intends to duplicate the successful campaigns of activist group Get Up in order to protect corporate interests including the coal industry: Richard Ferguson, ‘GetUp Slams Conservative Rival as “Front For Dirty Coal, Tax Breaks For Rich”’, The Australian (online, 20 November 2018) . 160 Turning Point USA v Macomb Community College (DC Mich, No 2:17-cv-12179-BAF-DR), Settlement Agreement and Release, 7 November 2017. 161 Summary Offences and Sentencing Amendment Act 2014 (Vic), the Workplaces (Protection from Protesters) Act 2014 (Tas), the Inclosed Lands, Crimes and Law Enforcement Amendment (Interference) Act 2016 (NSW), the Crown Land Management Regulation 2018 (NSW) and the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA). 162 See Aidan Ricketts, ‘Freedom from Political Communication: The Rhetoric behind Anti-­ Protest Laws’ (2015) 40(4) Alternative Law Journal 234. 163 In Brown v Tasmania (2017) 261 CLR 328, Bob Brown, former leader of the Australian Greens, successfully challenged the validity of the Workplaces (Protection from Protesters) Act 2014 (Tas).

118  Narrative of rights on a warming planet Wales Planning Assessment Commission approved the seventh expansion to the mine. In 2018, they argued in the Mudgee Local Court that the legislation was invalid on the basis of the constitutional implied freedom of political communication.164 The charges were dismissed on technical issues and the magistrate did not therefore have to consider the constitutional validity of the legislation and the operation of the implied freedom.165 In September 2018, three British anti-fracking protesters who blocked a truck convoy to a fracking site were sentenced to jail terms of 16 and 15 months, sentences that were quashed on appeal as ‘manifestly excessive’.166 According to Kirsty Brimelow, a barrister acting for one of the defendants, the three were the first people to be imprisoned for environmental protest in Britain since 1932. In the trial, she argued that the right to freedom of speech extended to non-violent direct action.167 In October 2018, the related right to freedom of assembly168 was successfully deployed by German anti-coal activists in the Aachen Administrative Court, in contesting a police ban on a planned rally near the endangered Hambach Forest.169 Protesters have been living in treehouses in the Forest for more than six years in an attempt to prevent large energy company RWE from clearing the ancient forest in order to expand its adjacent lignite mine. These recent case studies illustrate the importance of the right of freedom of speech and freedom of expression for climate protesters and activists. Conor Gearty, in contemplating whether human rights help or hinder environmental protection, has identified ‘access to courts, the ability to protest, and the capacity to obtain information’ as ‘central features of the struggle to achieve better environmental protection’.170 As I explore in more detail in Chapter 6, climate activists face not only prosecution as a consequence of their activities but also, on occasion, acts of violence and intimidation. Here the ‘language of human rights’ can provide a ‘shield’ for activists.171 164 Joanne McCarthy, ‘The Wilpinjong Three Tell Court Mine Protest was a Political Act’, The Herald (online, 9 February 2018) . 165 Joanne McCarthy, ‘Three Coal Protesters Say “Justice Prevailed” after Magistrate Dismisses “Anti-Protest” Charges’, The Herald (online, 5 June 2018) . 166 Quoted in Damien Gayle, Frances Perraudin and Owen Bowcott, ‘Fracking Protesters Walk Free after Court Quashes “Excessive” Sentences’, The Guardian (online, 18 October 2018) . 167 Frances Perraudin, ‘Blackpool Activists Jailed for Anti-Fracking Protest’, The Guardian (online, 27 September 2018) 168 Basic Law for the Federal Republic of Germany Art 8. 169 ‘German Court Orders Suspension of Hambach Forest Clearance’, Deutsche Welle (online, 5 October 2018) . 170 Conor Gearty, ‘Do Human Rights Help or Hinder Environmental Protection?’ (2010) 1(1) Journal of Human Rights and the Environment 7, 13. 171 Ibid 14.

Narrative of rights on a warming planet  119

Nonhuman rights in a time of climate change The nonhuman turn in legal discourse A number of writers and eco-philosophers, including Timothy Morton,172 Deborah Bird Rose173 and Donna Haraway,174 have suggested that wild time and its prelude should be distinguished by a more respectful form of co-­habitation with nonhuman species; Rose calls this, evocatively, ‘love in the time of extinctions’.175 This philosophical and ethical position has its legal counterpart in the contemporary Rights of Nature movement, which has achieved a groundswell of support amongst numerous environmental176 and animal activist groups and has made incursions on both judge-made and statutory law in various jurisdictions. The Bolivian Law of the Rights of Mother Earth 2010 and subsequent Framework Law of Mother Earth and Integral Development for Living Well 2012, and the enshrinement of Rights of Nature in Article 71 of the E ­ cuadorian Constitution in 2008, are important legislative steps in this area. Ecuadorian lawsuits to enforce these constitutional rights of nature have subsequently taken place. Similarly, the conferral of rights on culturally significant rivers in New Zealand and India in 2017 by, respectively, the New Zealand Parliament and the Uttarakhand High Court was greeted as a breakthrough development by advocates of Rights of Nature. The historic Whanganui River Settlement Agreement, finalised in 2014 and given legal force by the New Zealand Parliament in March 2017,177 not only acknowledges the ongoing rights and duties of guardianship and stewardship over the Whanganui River by the Whanganui Maori tribe but also recognises the river as a living being and creates a new legal entity for the river. This entity is ‘an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements’.178 Furthermore, it has ‘the rights, powers, duties and liabilities of a legal person’ with legal standing in its own right.179 Later in 2017, agreement was reached to confer legal personhood upon Mount Taranaki in New Zealand.180

1 72 Timothy Morton, Humankind. Solidarity with Nonhuman People (Verso, 2017). 173 Deborah Bird Rose, Wild Dog Dreaming. Love and Extinction (University of Virginia Press, 2011). 174 Donna J Haraway, Staying with the Trouble. Making Kin in the Chthulucene (Duke University Press, 2016). 175 Deborah Bird Rose, ‘Love in the Time of Extinctions’ (2008) 19(1) Australian Journal of Anthropology 81. 176 The United States Community Environmental Legal Defense Fund and the Australian Earth Laws Alliance are leading organisations in this field. 177 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ). 178 Ibid s 12. 179 Ibid s 14(1). 180 Eleanor Ainge Roy, ‘New Zealand Gives Mount Taranaki Same Legal Rights as a Person’, The Guardian (online, 22 December 2017) .

120  Narrative of rights on a warming planet The High Court of the State of Uttarakhand in India justified its 2017 decision to confer the legal status of persons on the Ganges and Yamuna Rivers on the basis that ‘extraordinary measures’ were needed to protect these gravely imperilled river systems, given their ‘sacred and revered’ nature for half of India’s population.181 Importantly, the Court referred to the New Zealand legislation in its judgment, a reference that underlines the inter-jurisdictional importance of these pioneering steps in the Rights of Nature movement. On appeal, however, the Supreme Court of India overturned this decision. In an additional historic legal development, the Amazon Rainforest was acknowledged to have personhood rights by the Colombian Supreme Court of Justice in the Future Generations case.182 The decision followed the Colombian Constitutional Court’s recognition of the rights of the Atrato River in 2016. In early 2019, the High Court of Bangladesh granted the Turag River and all other rivers in the country legal personhood status.183 This is not to suggest, however, that all legal systems are now prepared to recognise the legal rights and ‘personhood’ of nonhuman living entities such as rivers, forests and ecosystems. In December 2017, for instance, the United States District Court dismissed a case brought by the Colorado River Ecosystem, together with a number of activists and activist organisations as ‘Next Friends and Guardians’, in which the plaintiff sought both a declaration that she was capable of possessing the rights of a person and recognition of her rights to exist, flourish, regenerate, naturally evolve and be restored.184 Overall, however, recent developments do suggest a hitherto unprecedented degree of authoritative endorsement of the Rights of Nature discourse. The current United Nations Special Rapporteur on human rights and the environment, David R Boyd, has described such developments as tantamount to a ‘legal revolution’ that could ‘save the world’.185

The nonhuman turn in literary discourse Despite these promising recent legal developments, the discourse of nonhuman rights operates as a marginalised discourse and the rights of nonhuman species, forests, rivers and mountains are far from being entrenched and accepted as 181 See Erin L O’Donnell and Julia Talbot-Jones, ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand and India’ (2018) 23(1) Ecology and Society 7:1–10, 4 . 182 ‘In Historic Ruling, Colombian Court Protects Youth Suing the National Government for Failing to Curb Deforestation’, Dejusticia (Post, 5 April 2018) . 183 Farhin Antara, ‘Turag Given “Legal Person” Status to Save It from Encroachment’, Dhaka Tribune (online, 30 January 2019) . 184 Colorado River System v State of Colorado (DC Colo, No 17cv02316 – NYW) Complaint, 3 November 2017. 185 David R Boyd, The Rights of Nature. A Legal Revolution That Could Save the World (ECW Press, 2017).

Narrative of rights on a warming planet  121 legal or cultural norms. Given the ‘mutually imbricated histories of literature and human rights’,186 their common origins, their similar functions and their institutional and cultural correlations,187 a shift from humanism and the human focus in literature might well expedite and support a growing inclusiveness in rights discourse to encompass the nonhuman. It is not by chance that, as Amitav Ghosh has observed, ‘it was in exactly the period in which human activity was changing the earth’s atmosphere that the literary imagination became radically centered on the human’.188 Timothy Morton has asserted that a ‘functional definition of an adult book is one in which nonhumans don’t speak and aren’t on an equal footing with humans’.189 As one character speculates in Richard Powers’ recent novel The Overstory, ‘no novel can make the contest for the world seem as compelling as the struggles between a few lost people’.190 Of interest, therefore, is the surfacing of nonhuman characters and the appearance of nonhuman narrators in some recent fiction, and the retelling of stories and histories from a variety of alternative, nonhuman perspectives. Powers’ epic novel in which ancient trees communicate with each other and with certain listening humans even as they are felled,191 Patrick Ness’s retelling of Moby Dick from the perspective of the whale in his latest children’s book,192 Ceridwen Dovey’s revisiting of various historical events through the eyes and voices of nonhuman spectators,193 and Jane Rawson’s From the Wreck,194 which requires us to contemplate humanity from the perspective of a lone and vulnerable alien cephalopod, can all be viewed as part of a literary nonhuman turn and synergistic with political and legal Rights of Nature developments. Such works are attempts to ‘turn the story on its head’; as one character in The Overstory writes, ‘[t]his is not our world with trees in it. It’s a world of trees, where humans have just arrived’.195 A compelling invitation to view humans through the animal gaze or, alternatively, to contemplate nonhuman animals without a blinkered sense of human superiority is extended to readers in Karen Fowler’s bestselling We Are All Completely Besides Ourselves.196 The narrator, Rosemary, is human although she sees herself, as do her contemporaries, as ‘monkey girl’.197 The reader initially assumes that Rosemary’s references to her missing sister Fern are references to a human; the misapprehension arises from their nonconsensual roles, as babies 186 Peters (n 14) 256. See also Joseph R Slaughter, Human Rights Inc. The World Novel, Narrative Form and International Law (Fordham University Press, 2007). 187 Peters (n 14). 188 Amitav Ghosh, The Great Derangement. Climate Change and the Unthinkable (University of Chicago Press, 2016) 66. 189 Morton (n 172) 15. 190 Richard Powers, The Overstory (William Heinemann, 2018) 383 (emphasis in original). 191 Ibid. 192 Patrick Ness, And the Ocean Was Our Sky (Walker Books, 2018). 193 Ceridwen Dovey, Only the Animals (Penguin Books, 2014). 194 Jane Rawson, From the Wreck (Transit Lounge, 2017). 195 Powers (n 190) 424. 196 Karen Joy Fowler, We Are All Completely Beside Ourselves (GP Putnam’s Sons, 2013). 197 Ibid 102.

122  Narrative of rights on a warming planet and small children, in a radical, home-based, scientific experiment. It is belatedly revealed that Fern is a chimpanzee who was raised with Rosemary from babyhood and Rosemary was thus, for the first five years of her life, ‘the human half of the fabulous, the fascinating, the phantasmagorical Cooke sisters’.198 When Fern’s behaviour becomes problematic from a human perspective,199 she is suddenly removed from her family. The consequences are profound and tragic for Rosemary, her parents, her brother and Fern herself. The reader is compelled to reassess his or her assumptions about any conceptual or other separation between the human and nonhuman animal. Even after a prolonged separation during which she attends school and college while her sister is imprisoned in a laboratory cage, Rosemary perceives Fern as her missing half, the same as her, ‘as if I were looking in a mirror’.200 The book can be read as a literary adjunct to the Argentinian case in which the remedy of habeas corpus was sought for Sandra, a Sumatran orangutan, who had been held in a Buenos Aires zoo for 20 years. 201 The remedy is applicable to people subject to unlawful detention; expanding the ambit of the remedy to encompass caged primates proposes an undermining of the anthropocentrism of law. As a quasi-literary, quasi-performative, 202 extra-legal initiative, judgments have been retold from a nonhuman perspective in the recent Wild Law Judgment project, 203 which forms part of the expanding collection of critical judgment rewriting projects. These projects encompass feminist and other rewritings of existing judgments but the parameters of the Wild Law Judgment project were broader, in that fictitious judgments as well as rewritten judgments were permitted. Nonhumans provide little more than a subtext in most legal decisions. By creating a new focus on retelling judgments from a nonhuman perspective, 204 the collection opens up additional possibilities for the development of a legal narrative of nonhuman rights. 98 Ibid 108. 1 199 Ibid 269–70. 200 Ibid 308. 201 ‘Orangutan Named Sandra Fights for Freedom in Argentina Court’, The Sydney Morning Herald (online, 21 May 2015) . This case is discussed in Rosemary Lyster, Climate Justice and Disaster Law (Cambridge University Press, 2015) 374. 202 See Nicole Rogers, ‘Performance and Pedagogy in the Wild Law Judgment Project’ (2017) 27(1) Legal Education Review 3:1–19, 8–13. 203 Nicole Rogers and Michelle Maloney (eds), Law as If Earth Really Mattered: The Wild Law Judgment Project (Routledge, 2017). 204 In Brian Preston, ‘Green Sea Turtles by the Representative, Meryl Streef v The State of Queensland and the Commonwealth of Australia’ (in ibid 31), the applicants in a fictitious, futuristic case are Green Sea Turtles bringing an action in public nuisance against the Australian and Queensland governments. In Bee Chen Goh and Tom Round, ‘Wild Negligence: Donoghue v Stevenson’ (in ibid 91), the well-known English torts case of Donaghue v Stevenson [1932] AC 562 is retold from the perspective of the dead snail, which was found in a partially consumed bottle of ginger beer. In Benedict Coyne, ‘The Fraught and Fishy Tale of Lungfish v The State of Queensland’ (in ibid 56), lungfish have standing to bring an action in trespass against the State of Queensland.

Narrative of rights on a warming planet  123 Nonhuman rights in wild time The nonhuman turn in both fiction and law serves as a growing and significant corrective to the all-encompassing humanism and anthropocentrism found within these forms of storytelling. It constitutes part of what the founders of the Dark Mountain Project, an ongoing collaboration of writers and artists, have termed ‘uncivilised writing’: writing which serves to ‘uncentre our minds’ and ‘puts civilisation – and us – in perspective’.205 To what extent, however, do such literary and legal developments portend the resilience of rights discourse in wild time, and the inclusion of nonhuman species and entities in this discourse? I have already suggested that international human rights law, despite its aspirational and to a large extent tautological framing, may carry little authority and have even less relevance in the wild time of looming mass displacements, food and water shortages, and corresponding depredations. It is even less likely that the nonhuman turn will continue to shape a narrative of rights in the dystopia to come; assuming that rights continue to have any meaning at all, scarcity of resources will dictate their highly selective allocation. Even today, as Louis Kotze explains, ‘political realities, increased demand for limited resources, and the prevailing global consumer-driven culture coupled with continuously increasing population growth’ all mitigate against an ecocentric approach to rights. 206 Timothy Morton expresses the fundamental conundrum at the heart of nonhuman rights thus: Interdependence is the deep reason why at high resolution the language of rights breaks down for imagining how to proceed ethically and politically with regard to nonhumans. Extending rights to everything is absurd since rights language is normative: some beings can have rights to the extent that others do not. … And although rights language is good enough to be getting on with if we want to save chimps (let’s say) from being imprisoned, the fact that there is always one missing piece when we think interdependence, or act with a regard to it, means that we simply can’t extend rights to all nonhumans all at once.207 The language of rights might thus prove to be self-defeating as an aspect of the nonhuman turn. Rights of Nature advocates are motivated by a recognition of the interdependence of all species but any framework of rights, with its inherent inbuilt exclusions, cannot accommodate a universal inclusiveness. In the next chapter, I explore the role of nonhuman species in fictitious portrayals of wild time.

205 Paul Kingsnorth and Dougald Hine, ‘Uncivilisation. The Dark Mountain Manifesto’, The Dark Mountain Project (Post, 2009) . 206 Kotze (n 1) 259. 207 Morton (n 147) 151–2.

124  Narrative of rights on a warming planet Corporate rights Despite the undoubted relationship between the exercise of certain fundamental human rights and climate change discussed in the first part of this chapter, it was not the postwar development of international human rights law as such which played the key causal role in the Great Acceleration but, more significantly, the corporate co-optation of the rights narrative, a strategy which has served to legitimate the unprecedented amount of corporate power at play in the modern global order.208 In outlining the implications of the corporate capture of rights for the increasingly popular concept of climate justice, Anna Grear has described the international human rights narrative as a ‘fractured discourse’ and suggested that ‘the lesson to be drawn’ from the ‘corporate colonization of international human rights law’ is that ‘“climate justice” as both language and concept … will become a target of corporate desire’.209 The consequences for marginalised groups and populations, and for the environment itself, are dire. The corporate colonisation or co-optation of the human rights discourse is apparent in the development of what Upendra Baxi has described as a new, ‘trade-related, market-friendly’ paradigm of human rights.210 Freedom of trade can be viewed as a right mainly vested in and exercised by corporations, and one that has calamitous consequences for human rights and for the environment. The right to trade freely within national borders is rigorously protected even in federations such as Australia and the United States, in which individual States might attempt to protect their own industries with measures such as border tariffs. Globally, international free trade agreements have become commonplace. Investor-State Dispute Settlement clauses enable slippery corporate tricksters to bypass national regulators and regulations. As previously mentioned in Chapter 2, one such clause could enable the Indian Adani corporation to seek substantial compensation from the Australian government should that government withdraw its approval for the Carmichael coalmine. International tribunals have been set up to determine disputes between corporations and nation states over any legislated obstacles to free trade. These treaty regimes ‘consolidate global corporate juridical primacy’.211 The climate change impacts of global free trade are considerable. The incessant carriage of goods by air and sea contributes heavily to greenhouse gas emissions. In the Global North, our lavish lifestyles are dependent upon the endless provisioning from the Global South and, ironically, most proposed technological solutions to climate change are also dependent upon this transfer of goods. Alf Hornborg has written that:

208 Anna Grear, ‘Towards “Climate Justice”? A Critical Reflection on Legal Subjectivity and Climate Injustice: Warning Signals, Patterned Hierarchies, Directions for Future Law and Policy’ (2014) (June) 5 Journal of Human Rights and the Environment 103, 121–2. 209 Ibid 121. 210 Quoted in ibid. 211 Ibid 124.

Narrative of rights on a warming planet  125 So here is the impasse of modern civilization: the free trade promoted by most economists and politicians continues to drive a substantial part of the greenhouse gas emissions that they want to reduce, and yet the sustainable technologies they propose to cut emissions are in themselves dependent on economic growth, international trade, and the use of more and more natural resources.212 Border carbon adjustments have been ‘frequently proposed, but rarely implemented’213 as a method of addressing the excessive greenhouse gas emissions associated with free trade; more stringent restraints may well be required. Yet market strategies reinforce rather than challenge the dominant capitalist model and are unlikely to achieve long-term successful outcomes. Furthermore, national measures designed to reduce emissions face challenges on the basis that provisions in free trade agreements are thereby contravened. Any attempt to curb free trade in order to reduce global greenhouse gas emissions will be framed by corporations as an infringement of their fundamental rights. In a 2014 report, the International Bar Association concluded that uncertainty about the compatibility of ‘trade-related climate measures’ with WTO law, and the possibility of costly challenges, may well have a ‘chilling effect’ on States.214

Rights of posthumans While corporate rights are widely accepted in law, legal recognition of rights of artificially created humanoid beings is much more controversial. In 2017, Saudi Arabia took the extraordinary step of granting citizenship to Sophia the robot. Sophia is a creation of Hanson Robotics with, it would appear, a sense of humour. At the Future Investment Initiative Conference during which the announcement of citizenship was made, she is reported to have said that she is ‘always happy when surrounded by smart people who also happen to be rich and powerful’.215 Commentators have voiced a range of concerns about the bestowal of citizenship upon Sophia.216 212 Alf Hornborg, ‘Why You Can’t Have Free Trade and Save the Planet’, The Conversation (online, 1 May 2018) . 213 Michael Mehling et al, ‘Designing Border Carbon Adjustments for Enhanced Climate Action’ (Working Paper, Climate Strategies, December 2017) 15 . 214 David Estrin et al, Achieving Justice and Human Rights in an Era of Climate Disruption (International Bar Association, 2014) 75 . 215 Zara Stone, ‘Everything You Need to Know about Sophia, the World’s First Robot Citizen’, Forbes (7 November 2017) . 216 See, eg, Hussein Abbass, ‘An AI Professor Explains: Three Concerns about Granting Citizenship to Robot Sophia’, The Conversation (online, 30 October 2017) .

126  Narrative of rights on a warming planet In the same month, an Estonian government official announced that the country’s economy ministry was developing legislation to address the status of artificial intelligence in legal disputes. One proposal involves the creation of ­‘robot-agents’, which to some extent have separate legal personality.217 In a related development, the Australian Human Rights Commission launched a major inquiry into the impact of artificial intelligence on human rights in July 2018. This issue of cyborg rights has been canvassed broadly in science fiction and, indeed, in the subgenre of climate fiction. The question of whether cyborgs should have the right to live and the right to reproduce, for instance, is fundamental to the Blade Runner films.218 To draw upon another example in Marge Piercy’s climate fiction novel Body of Glass, the townspeople of Tivka embark upon a lively debate as to whether cyborg Yod should have citizen rights when the issue of his unpaid labour comes before their governing committee.219 In the next chapter, I consider the role played by cyborgs in climate fiction, as one of the key groups of inhabitants of wild time.

Conclusion In this chapter, I have sought to shed light on the complex interrelationship between the narrative of human rights and climate change. The impact of climate change on human rights is explored in recent legal developments and in climate fiction. I have also highlighted the correlation between the exercise of certain fundamental rights and the phenomenon of climate change. The narrative of rights is not confined to human rights. The expansion of this narrative into nonhuman rights can be found in the Rights of Nature movement, as exemplified in recent legal and quasi-legal initiatives as well as in literature. The underlying narrative of corporate rights is also important here, in light of the power and influence of corporate tricksters in the Anthropocene and their ongoing role in exacerbating climate disruption. Finally, the narrative of cyborg rights has moved beyond the world of science fiction and is encroaching upon legal and governmental discourse. It is difficult to see how the discourse of human rights will retain cultural authority and credibility as climate disruption intensifies. There are clear precedents for the erosion of human rights and the setting aside of the rule of law when societies confront exceptional threats and emergencies. In light of this, can human rights endure as even an aspirational framework in wild time?

217 Ott Ummelas, ‘Estonia Plans to Give Robots Legal Recognition’, The Independent (online, 14 October 2017) . 218 Blade Runner: The Director’s Cut (Ladd Company, 1992); Blade Runner 2049 (Columbia ­Pictures, 2017). 219 Marge Piercy, Body of Glass (Michael Joseph, 1992) 356–7, 382–3.

Narrative of rights on a warming planet  127 In Chapter 6, I return to this critical question of the viability of the narrative of human rights in a time of accelerating climate disruption, and explore the possibility that this narrative might be superseded by the narrative of emergency. I do so in part by drawing upon fictitious imaginings in climate fiction. In this later chapter, my focus is on the extra-legal terrain which climate disruption inhabits, and on the operation of climate exceptionalism beyond the boundaries of law’s empire.

5 Wild time

In previous chapters, I have considered legal and activist narratives intended to prevent runaway climate change. These narratives have an overarching purpose: they offer redemption,1 the promise that humanity can yet avoid the multiple challenges and devastation of wild time on Hothouse Earth. The environmental apocalyptic narrative ‘leaves open the possibility that human intervention can still avoid the looming catastrophe’.2 In the version of the narrative which informs much climate litigation and activism, we can still circumvent the worst consequences of climate change with strategic judicial and political interventions. Climate fiction generally does not provide narratives of planetary redemption. In much climate fiction, the reader or viewer is plunged into the post-midnight zone, into a world irreparably damaged by climate change. The possibility of individual or communal redemption is, however, another matter. Such climate fiction addresses the question of whether humanity has any sort of future in wild time, and what such a future might look like. Climate fiction is, almost exclusively, the narrative domain in which the potential dimensions of wild time are fully explored and portrayed. That said, some scientific narratives do canvas wild time possibilities.3 Renowned scientist James Lovelock has written that ‘we may be unable to prevent a global decline into a chaotic world ruled by brutal warlords on a devastated Earth’.4 The IPCC has engaged in its own futuristic imaginings. In its 2007 reports, the organisation selected four narrative scenarios and storylines that depicted divergent futures. The current IPCC process relies on five Shared Socioeconomic Pathways outlining various alternative socio-economic developments.5 In general, however, the 1 R Henry Weaver and Douglas A Kysar, ‘Courting Disaster: Climate Change and the Adjudication of Catastrophe’ (2017) 93(1) Notre Dame Law Review 295, 352. 2 Michael Burger, ‘Environmental Law/Environmental Literature’ (2013) 40(1) Ecology Law Quarterly 1, 20. 3 For instance, Will Steffen et al, ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115(33) PNAS 8252. 4 James Lovelock, The Revenge of Gaia. Why the Earth is Fighting Back – And How We Can Still Save Humanity (Penguin Books, 2007) 198. 5 These are called Sustainability – Taking the Green Road, Middle of the Road, Regional ­R ivalry – A Rocky Road, Inequality – A Road Divided and Fossil-fueled Development – Taking

Wild time  129 nature of scientific communication and the general constraints of the discipline tend to detract from the impact of such scenarios and discourage speculation about the most catastrophic social and political consequences of runaway climate change. Much climate fiction positions us imaginatively in the dystopias of wild time. In this chapter, I analyse various narratives of wild time in climate fiction. Due to the breadth and genre defying nature of climate fiction,6 and the rapidly growing volume of climate fiction texts,7 my choice of case studies is necessarily selective. In keeping with some of the key themes of this book, my focus is on the portrayal of time in climate fiction, the characteristics of the human and posthuman inhabitants of wild time, the role of corporate and other tricksters in wild time, and humanity’s relationship with the nonhuman and posthuman species of Hothouse Earth.

Timeframes of climate fiction Novelists, filmmakers and playwrights frame their climate fiction works within diverse time frames but, generally, these are futuristic.8 While acknowledging that this is not the case for all such works,9 Amitav Ghosh argues that writers of fiction need to focus more on the past and present in addressing the challenges of the Anthropocene.10 The impacts of climate change are certainly visible in fictitious climate narratives set in contemporary surroundings but extreme tipping points have not yet been reached; wild time, with its ensuing disorder, has not yet arrived or arrives in the final pages. Protagonists operate within recognisably familiar social and political frameworks. Such texts have been described as narratives of anticipation, pervaded by ‘the strong sense of uncertainty and controversy that marks the perception and assessment of global warming’.11 Novels set in our current time, in the prelude to wild time, include Ian McEwan’s Solar,12 a satirical account of the misadventures of philandering, the Highway. See Brian C O’Neill et al, ‘The Roads Ahead: Narratives for Shared Socioeconomic Pathways Describing World Futures in the 21st Century’ (2017) 42 Global Environmental Change 169. 6 See Adam Trexler, Anthropocene Fictions. The Novel in a Time of Climate Change (University of Virginia Press, 2015) 10, 14. 7 Ibid 8–9. 8 See Adeline Johns-Putra, ‘Climate Change in Literature and Literary Studies: From Cli-fi, ­Climate Change Theater and Ecopoetry to Ecocriticism and Climate Change Criticism’ (2016) 7(2) WIREs Climate Change 266, 269. 9 Amitav Ghosh, The Great Derangement. Climate Change and the Unthinkable (University of Chicago Press, 2016) 73. 10 Ibid 72. 11 Sylvia Mayer, ‘Explorations of the Controversially Real: Risk, the Climate Change Novel, and the Narrative of Anticipation’ in Sylvia Mayer and Alexa Weik Von Mossner (eds), The Anticipation of Catastrophe. Environmental Risk in North American Literature and Culture (Universitatsverlag Winter, 2014) 21, 26. 12 Ian McEwan, Solar (Jonathon Cape, 2010).

130  Wild time self-aggrandising, Nobel Prize winning physicist Michael Beard. Beard restores his foundering reputation by plundering the intellectual property of his wife’s dead lover, an idealistic scientist who developed a process of artificial photosynthesis as a mitigation initiative. Nathaniel Rich’s Odds Against Tomorrow13 is another example. A climate-related disaster occurs midway through the book, when Hurricane Tammy decimates much of New York, but this event does not appear to signify the onset of wild time or the collapse of the social and economic order. Instead, the disaster throws up new commercial opportunities and, indeed, warnings about climate disasters are framed in economic terms throughout the novel. In Barbara Kingsolver’s Flight Behaviour,14 climate change has led to an aberrational natural phenomenon, the unprecedented arrival of tropical monarch butterflies in the mountains of rural Tennessee. Kingsolver charts the disruptive impact of this event upon the central protagonist in the novel, a frustrated housewife, and her small community, as climate change impacts become a catalyst for personal and political growth and change; the novel thus falls within the genre of bildungsroman narratives.15 As flagged in the previous chapter, Kingsolver’s most recent novel, Unsheltered,16 can also be classified as climate fiction. Again, the novel unfolds within a contemporary timeframe. It compels the reader to interrogate the precariousness of place, the illusion of security and the dangers of outmoded belief systems, in our current age of climatic, as well as political and economic, disruption. Adam Trexler, in his discussion of such fictitious exercises in ‘Anthropocene realism’, argues that they shift our understanding of climate change ‘from something that ought not to exist to something that already does’ but, however, do not make clear ‘the devastating potential of climatic disaster’.17 Other examples of climate fiction, set in what passes as the present or at least a recognisable version of the near future, encompass or end with the onset of wild time due to a decisive cataclysmic event.18 Alternatively, wild time is foreshadowed or anticipated but, in its complete manifestation of social and environmental breakdown, yet to come. Some writers of climate fiction invoke generational time, narrating the different experiences of generations and, in so doing, exploring the diverse and progressively more severe impacts of climate change. These works can span past, present and future timeframes. Australian novelist James Bradley, in his climate fiction work Clade,19 explores the impact of extraordinary flooding, a future pandemic and widespread devastation on several generations of one family. 13 Nathaniel Rich, Odds against Tomorrow (Farrar, Straus and Giroux, 2013). 14 Barbara Kingsolver, Flight Behaviour (HarperCollins, 2012). 15 Axel Goodbody, ‘Risk, Denial and Narrative Form in Climate Change Fiction: Barbara Kingsolver’s Flight Behaviour and Iliya Trojanov’s Melting Ice’ in Mayer and Von Mossner (eds) (n 11) 39, 48. 16 Barbara Kingsolver, Unsheltered (Faber and Faber, 2018). 17 Trexler (n 6) 233. 18 See, eg, Liz Jensen, The Rapture (Bloomsbury, 2010) and Jennifer Mills, Dyschronia (Picador, 2018). 19 James Bradley, Clade (Hamish Hamilton, 2015).

Wild time  131 Ultimately, Bradley envisages the adaptation rather than disintegration of human civilisation. Jane Smiley, in a trilogy20 which traces the diverse adventures of several generations of an American family, references not only the encroaching impacts of climate change on the family farm but also the reverberations of key events in the twentieth and twenty-first centuries, including World War II, the Vietnam War, the Jonestown massacre and the September 11 terrorism attacks. Climate change becomes an increasingly apparent and jarring backdrop but the rich historical tapestry arguably serves to downplay its exceptionality. Generational time is also a feature of Maja Lunde’s The History of Bees, 21 with its three storylines crossing centuries and linked by the significance of bees to the central characters, some distant familial ties, and a book. Visionary or ‘temporally displaced’22 seers are central characters in a number of climate fiction works set in the present or near future. Their own uneasiness, and the uneasiness which their gift engenders in others, suggest the dangers for all narrators in attempting to look forward into wild time. One such character is Curtis LaForche in the 2011 film Take Shelter.23 His wife, his doctors, his community and Curtis himself view his apocalyptic visions of brown oily rain, strange bird formations, his gentle dog in an inexplicable frenzy and violent zombie-like strangers as the onset of mental illness. However, the final scene in the film suggests that they were accurate premonitions of disaster to come, or possible ‘iruptions from an apocalyptically climate-changed future’.24 E Ann Kaplan has pointed out that the ‘uncanny’ quality25 of Curtis’s ‘pretraumatic hallucinations’26 conveys a sense of fatalism which is reflective of a more widespread phenomenon: climate change ‘is just happening or already here, and like Curtis we just wait to be doomed’.27 Similarly, one reviewer has suggested that the extreme passivity of Sam, Jennifer Mill’s reluctant visionary heroine in Dyschronia, 28 is an allegory for our own inertia in the face of environmental crisis.29 Sam finds future events superimposed on the present and is powerless to manipulate these events, despite the naïve faith she inspires in the residents of her 20 Jane Smiley, Some Luck (Penguin Random House, 2014), Jane Smiley, Early Warning (Penguin Random House, 2015) and Jane Smiley Golden Age (Penguin Random House, 2015). 21 Maja Lunde, The History of Bees, tr Dianne Oatley (Simon and Schuster, 2017). 22 Ben Brooker, ‘“I’m Afraid Something Might Be Coming.” Ben Brooker on Pre-Traumatic Stress Disorder’ (2018) 230 (Autumn) Overland 40, 42. 23 Take Shelter (Grove Hill Productions, 2011). 2 4 Brooker (n 22) 42. 25 E Ann Kaplan, Climate Trauma. Foreseeing the Future in Dystopian Film and Fiction (Rutgers University Press, 2016) 41. 26 Ibid 44. 27 Ibid 56. 28 Mills (n 18). 29 Gretchen Shirm, ‘Dyschronia Review: Jennifer Mills’ Dark Vision of an Australian Future’, The Sydney Morning Herald (online, 15 February 2018) .

132  Wild time struggling small town of Clapstone. She is physically catapulted forward into two particularly ominous scenarios, both of which will come to pass and both of which encompass almost incomprehensible environmental catastrophe. In some ways, Sam is similar to the unlikeable Bethany Krall, the teenage seer in Liz Jensen’s The Rapture.30 Bethany’s visions of disaster, including a final apocalyptic event that will be triggered by the accidental release of enormous quantities of a greenhouse gas buried in the ocean floor, are incoherent but uncannily prescient. All three characters are remarkable for their disempowerment. Bethany has been institutionalised as a violent and mentally unstable killer; her unique predictive capacity is dismissed or ignored even as an accelerating pattern of natural disasters confirms its accuracy. Curtis’s attempts to take practical steps to protect his family from future catastrophe by restoring a storm shelter in his backyard are impeded by the scepticism and even outrage of his wife and neighbours. Sam, whose accuracy as seer is belatedly acknowledged by her community and certainly recognised for its commercial potential by her stepfather, is nevertheless chronically disabled by the gripping migraines that accompany her visions. Not all characters in climate fiction with visionary gifts are marginalised and discredited. This is not, for instance, the fate of Mitchell Zukor, the mathematically gifted prodigy in Odds Against Tomorrow. Zukor plays a key role in averting the worst catastrophic consequences of an extreme weather event in New York. An obsession with potential disaster, a prodigious talent for statistical analysis, and an application of his analytical skills in ‘plott[ing] disaster’31 provide him with lucrative employment prior to Hurricane Tammy. Zukor finds his research as a ‘futurist’ into the probability of catastrophe strangely fulfilling and is entirely convincing when he pitches this research to his corporate clients; unlike his cynical employer, he has the capacity to communicate urgency and fear.32 After the hurricane has confirmed the accuracy of his predictive analysis, he acquires an unwanted reputation as the ‘Prophet’.33 His capacity to assess future risk is now highly prized and has ensured the survival of the assets and employees of his clients. ‘Seeing’ into the future is portrayed here as a valuable attribute.

Revisiting time’s arrow In deference to the confusing complexities of timescales in the Anthropocene, some novelists are discarding not only predictable and limited ‘realism’34 but also the concept of the orderly, linear progression of time. A fascination with time and its slipperiness and circularity is apparent in certain instances of climate

30 31 32 33 3 4

Jensen (n 18). Rich (n 13) 65. Ibid 31. Ibid 247. Ghosh points out that the ‘irony of the “realist” novel’ is that ‘the very gestures with which it conjures up reality are actually a concealment of the real’, in that the improbable is excluded; Ghosh (n 9) 23.

Wild time  133 fiction. In Dyschronia, for instance, as suggested by the title with its connotation of time displacement, the instability of time is a central theme. Time plays sinister tricks on Sam and, by extension, her community; time itself has become a trickster. The narrative in Louise Erdrich’s Future Home of the Living God35 progresses in a linear fashion but, in an interesting variation on the circularity of time, evolution is going backwards. This produces apparent time slippages as long extinct species reappear in contemporary environments36 and humanity confronts an imminent existential crisis: a rapid regression into some version of its primeval origins. Evolution, given its unexpected capacity to reverse itself, has here taken on trickster attributes. Tricksters excel in ‘doubling back’, as Lewis Hyde points out in his seminal text.37 Although one character postulates that the causal factor is our disrespect for Earth,38 there is no explicit suggestion that this reversal is linked to climate change. Nevertheless, climate change has dramatically reconfigured the landscape and the seasons. Maple trees in the United States no longer produce39 and there is no snow in the lost ‘ghost season’40 of winter.41 In the final pages, the narrator recalls her adopted parents’ account of ‘the real cold, the deep cold’ in ‘the before’42 and her own childhood memory of the last time it miraculously snowed.43 The experience of loss and the emotions of grief and deep sadness underlie the brief description of true winter; at the time, her parents told her, ‘[w]e didn’t know it was heaven’.44 As commentators struggle to make sense of the unwinding of the evolutionary spool, a paleontologist (and author of a book entitled Deep Time) points out that evolution has been a very long-term, non-sequential and disorderly process; similarly, the pending large-scale regression as the human race ‘[climbs] back down the swimming-pool ladder into the primordial soup’45 will be chaotic and unpredictable. He states that: ‘We wouldn’t see the narrative we think we know. Why? Because there was never a story moving forward and there wouldn’t be one moving backward’.46 In the ‘enormousness’ of planetary time, human beings have only a ‘limited place’.47 The lack of a narrative, or rather her incapacity to envision a narrative

35 Louise Erdrich, Future Home of the Living God (Corsair, 2017). 36 Ibid 91–2, 104–5, 258. 37 Lewis Hyde, Trickster Makes This World. Mischief, Myth and Art (Farrar, Strauss and Giroux, 2010) 49. 38 Erdrich (n 35) 54. 39 Ibid 60. 40 Ibid 110. 41 Ibid 9. 4 2 Ibid 265 (emphasis in original). 43 Ibid 266–7. 4 4 Ibid 265. 45 Ibid 68. 4 6 Ibid 55. 47 Ibid 57.

134  Wild time from her particular vantage point in human history, preoccupies the narrator48 as she nevertheless attempts to constructs her own partial and personal account for her unborn child; ‘I want to see the story’.49 Here we can find the gulf between the Western narrative tradition of the individual’s necessarily limited experiences and the large-scale planetary narrative in which the trickster of climate change wreaks global havoc. Novelists rarely venture into deep time or attempt to portray the improbable and unpredictable ‘catastrophes [that] waylay both the earth and its individual inhabitants’; Ghosh calls these ‘fractures in time’.50 Our narrative traditions cannot easily encompass planetary or deep time or even, it would appear, a transition between epochs. One exception to this can be found in Doris Lessing’s Mara and Dann. An Adventure,51 which is set in Africa some thousands of years from now during the gradual retreat of a hypothetical and, arguably, implausible52 next Ice Age. Novelist Jeanette Winterson also defies these traditions in The Stone Gods. In an ambitious mixture of timeframes and metafictions, she incorporates a fantastical account of planetary disaster set in deep time, a tale of past environmental disaster in more recent human history, and an account of futuristic wild time. In the first of four interlinked stories, she visits deep time and, specifically, the epoch defining moment some 65 million years ago, when an asteroid collided with Earth and wiped out thousands of existing species including the dinosaurs. In this narrative, interplanetary explorers fleeing their own ravaged planet and seeking to colonise a habitable new planet deliberately engineer the asteroid collision.53 They call this new planet Planet Blue but we, its human occupants in the far distant future, will know it as Earth. The technologically advanced explorers decide to eradicate Planet Blue’s existing population of dinosaurs or ‘monsters’ on the basis that their presence is incapable with human settlement. As we later discover, this account is a fantastical story within a story, written in a notebook that circulates through the London Tube of wild time.54 In other storylines, Winterson first captures the plight of the Easter Islanders as an allegory for our own resource-greedy global predicament and then takes the reader into the post-apocalyptic future. Winterson displayed a similar disdain for linear time in her playful, fantastical romp through quantum physics in Tanglewreck;55 in that young adult novel, with its Time Traps, destructive Time Tornadoes and Time Transfusions, time is as wilful, erratic and undependable as our current 48 49 50 51 52

Ibid 67. Ibid. Ghosh (n 9) 20. Doris Lessing, Mara and Dann. An Adventure (Flamingo, 1999). William F Ruddiman has argued that anthropogenic greenhouse gas emissions, beginning with the establishment of agriculture some thousands of years ago, have indefinitely disrupted the cycles that led to Ice Ages; William F Ruddiman, ‘The Anthropogenic Greenhouse Era Began Thousands of Years Ago’ (2003) 61(3) Climate Change 261. 53 Jeanette Winterson, The Stone Gods (Hamish Hamilton, 2007) 50. 4 Ibid 119. 5 55 Jeanette Winterson, Tanglewreck (Bloomsbury, 2006).

Wild time  135 and future climate. And yet, in the final pages of The Stone Gods, Winterson reminds us of the unyielding, inescapable, relentlessness of time: You can change everything about yourself – your name, your home, your skin colour, your gender, even your parents, your private history – but you can’t change the time you were born in, or what it is you will have to live through.56

Inhabiting wild time Most climate fiction narratives portray different versions of wild time. Humanity is still present although, in some instances, only a vastly reduced human population remains. In this section, I contemplate some of the commonalities in these largely dystopian depictions of wild time. I consider here the characteristics of the human and posthuman inhabitants who manage to survive and even thrive in wild time, and the role of corporate tricksters in dominating and shaping this brave new world.

Walkaways 57 Walkaways tend to feature in climate fiction that is set in the period immediately before wild time, or during its graduated onset. There is still a dominant social and political order, although climate change is increasingly making inroads into its functional capacity, and in many instances capitalism retains its global dominance. Walkaways actively resist the role of passive recruits and participants in this system. Some groups are preparing for its imminent breakdown. Walkaways belong to the tradition of pastoral literature, in which ‘[t]hose who have the means to escape begin to look for places to hide from the foreseeable apocalypse, either in a new physical setting or in their fantasies’.58 The walkaways in Cory Doctorow’s novel Walkaway enact the philosophy of non-attachment to property and place with enviable insouciance. They have walked away from mainstream society, which is referred to as ‘default’ and controlled by the mega-rich ‘zottas’. They have chosen to be walkaways and remain committed to this choice. In this regard, their situation resembles that of the God’s Gardeners in the MaddAddam trilogy. Both groups have distanced themselves from the dominant social order for ideological reasons. While the God’s Gardeners survive by gleaning and strive for self-sufficiency, Doctorow’s walkaways take advantage of ‘fablabs’59 that enable them to generate all they need from default’s discarded waste.

56 Winterson (n 53) 199. 57 This term appears in Cory Doctorow’s 2017 novel with that title: Cory Doctorow, Walkaway (Head of Zeus, 2017). 58 Joseph Meeker, The Comedy of Survival. Literary Ecology and a Play Ethic (University of Arizona Press, 3rd ed, 1997) 54. 59 Doctorow (n 57) 88.

136  Wild time Another key point of difference between Doctorow’s largely peripatetic walkaways60 and the God’s Gardeners is that the latter have settled in place. They cultivate an urban oasis on the Edencliff Rooftop Garden and on other rooftop gardens in the pleeblands while they await the apocalypse or Waterless Flood. They also establish ‘hidden places of refuge’ called Ararats, well stocked with supplies, in preparation for the catastrophe to come.61 A matriarchal group of walkaways is depicted in Sarah Hall’s The Carhullan Army in which the female Carhullan community, ‘removed from the faulted ­municipal world’62 on its remote and inaccessible farm, appears to have ‘sidestepped the collapse, and the harsh regime of the Civil Reorganisation’.63 This is portrayed as an idyllic and self-sufficient walkaway experiment. The ­community’s uncompromising founder, Jackie, has sought to create ‘[s]omething durable and extraordinary’,64 an alternative, independent settlement. In other works of climate fiction, walkaway settlements are established in sacrifice zones. Sacrifice zones already exist in abundance,65 including the notorious Chernobyl Zone, the Boreal forest in Alberta that contains wastewater from tar sand oil extraction, and Baotou in northern China where waste products from rare earth mineral extraction have seeped into a giant lake. Sacrifice zones are not viewed as desirable living environments for human beings, although other species may flourish there in the absence of humanity,66 and the vast majority of us, with some singular exceptions,67 would prefer to avoid them altogether. Some walkaways in climate fiction retreat to the areas abandoned by

60 Doctorow describes walkaways ‘who couldn’t walk away’ as ‘foxes whose den lacked an emergency back door’: ibid 248. 61 Margaret Atwood, The Year of the Flood (Bloomsbury, 2009) 47 (‘The Year of the Flood’). 62 Sarah Hall, The Carhullan Army (Faber and Faber, 2007) 54. 63 Ibid 52. 6 4 Ibid 55. 65 See Roy Scranton’s discussion of sacrifice zones as part of ‘the revelation of the Anthropocene’ in Roy Scranton, We’re Doomed. Now What? (Soho Press, New York: 2018) 53, and Naomi Klein, This Changes Everything. Capitalism Vs The Climate (Simon and Schuster, 2014) 310–5. 6 6 William Cronin makes this claim in relation to the Rocky Mountain Arsenal, one of the most toxic waste dumps in the United States: William Cronin, ‘Introduction: In Search of Nature’ in William Cronin (ed), Uncommon Ground. Rethinking the Human Place in Nature (W W Norton and Company, 1996) 23, 27–8. Chernobyl’s ‘Zone of Alienation’ is another example: Mary ­Mycio, Wormwood Forest: A Natural History of Chernobyl (Joseph Henry Press, 2005). 67 Kate Brown recounts the feats of photographer Aleksandr Kupny who has ventured under the Chernobyl No 4 reactor in order to take ‘visualize and map’ the ‘scarcely sensible phenomenon’ of nuclear power through photographs: Kate Brown, ‘Marie Curie’s Fingerprint. Nuclear ­Spelunking in the Chernobyl Zone’ in Anna Tsing et al (eds), Arts of Living on a Damaged Planet. Ghosts of the Anthropocene (University of Minnesota Press, 2017) G33, G36. The phenomenon of disaster tourism or dark tourism involves visiting sacrifice zones such as the Chernobyl Zone; see, for instance, Philip Stone’s discussion of the significance of ‘the touristification’ of Chernobyl in ‘Dark Tourism, Heterotopias and Post-Apocalyptic Places: The Case of Chernobyl’ in Leanne White and Elspeth Frew (eds), Dark Tourism and Place Identity. Managing and Interpreting Dark Places (Routledge, 2013) 79.

Wild time  137 corporations and governments, areas of no perceived economic or other value or the areas already devastated by natural disasters or large-scale polluting events. Zukor in Odds Against Tomorrow, despite his prized status as a statistical analyst and futurist, turns his back on the economic inducements on offer and begins a precarious but fulfilling existence in the Flatlands, an area of New York which has been abandoned by the authorities. It is part of the newly designated ‘Dead Zone’, Zone Five, with rebuilding a low or even non-existent priority after the devastating hurricane Tammy caused major flooding throughout the city.68 This presents an opportunity that Zukor finds irresistible: the opportunity to ‘create his own self-contained universe’.69 He is inspired by the earlier example of Elsa Bruner, a college acquaintance at the mercy of an unpredictable and potentially fatal illness, who chose to establish a rural community on a farm in Maine as ‘an impregnable, self-contained, self-sustaining fortress’.70 By the end of the novel, a community of walkaways is forming in the Dead Zone, its numbers growing rapidly. Zukor is growing his own food, collecting rainwater and using solar energy. Walkaway settlements in sacrifice zones also feature in post-apocalyptic worlds. In the final story in The Stone Gods, the narrator leaves the corporate-controlled ‘official part’ of London, ‘Tech City’, and takes her Robo sapiens companion Spike on an excursion to Wreck City: ‘where you want to live when you don’t want to live anywhere else. Where you live when you can’t live anywhere else’.71 Here, the bomb wreckage from a devastating global war has not been cleared and people live in ruins.72 There is an unexpected, joyous, anarchic freedom;73 it is a form of refuge, a ‘landing place’.74 However, beyond Wreck City, with its willing and eccentric walkways, is an additional colony of walkaways in the Unknown, the radioactive Dead Forest. Life is re-evolving and mutated75 and damaged humans are quarantined.76 These are not walkaways by inclination but, rather, ‘the enemy collateral’.77 In Marge Piercy’s Body of Glass, a matriarchal community in the black zone is exiled from the rest of the world by circumstance, and more recently by choice. This wasteland area in the Middle East, where the ‘last great Two Week War had been fought’, is represented by a ‘black patch on the maps’; ‘it was truly no-man’s-land’.78 The independent free town of Tivka, located on the North ­A merican coast in a time of unchecked sea level rise and storm surges, is also 68 69 70 71 72 73 74 75 76 77 78

Rich (n 13) 285. Ibid 287. Ibid 289. Winterson (n 53) 151. Ibid. Ibid 188–9. Ibid 162. Ibid 159. Ibid 171. Ibid 195. Marge Piercy, Body of Glass (Michael Joseph, 1991) 187.

138  Wild time comprised of walkaways from the multis, the all-powerful global corporations.79 As with other walkaway settlements discussed above, this is undesirable territory and therefore part of the ‘unclaimed margin’.80 Tivka, described as a ‘fragile modern ghetto’,81 maintains its independence by producing valuable, virtual ‘chimera, systems, defences to be sold to multis’.82 The underlying premise in the Blade Runner texts83 is that Earth itself has become a sacrifice zone; it has become ‘easy to emigrate [off-planet], difficult if not impossible to stay’.84 Off-planetary walkaways and the concept of Earth as a sacrifice zone similarly feature in Ben Elton’s Stark; in that satirical piece of climate fiction, squabbling billionaires who comprise ‘an invisible, amorphous, multi-headed dictatorship of money’85 flee our dying planet in ‘the Star Arks’, with the intention of establishing a ‘new world’ on the moon.86 Yet the walkaway tradition offers only short-term possibilities for survival in a dystopian near future. Walkaway attempts to evade the prevailing social and political order or, as Margaret Atwood puts it, to create hidden utopias in the midst of dystopia,87 often attract antagonistic and violent responses. In many fictitious accounts, dominant social and political forces cannot tolerate walkaway communities, which are compelled to transition into communities of active resistance or face disintegration and destruction. The God’s Gardeners, initially declared ‘off-limits’ by the ubiquitous and corrupt corporate police force the CorpSeCorps,88 are eventually forced to go into hiding.89 The Edencliff Rooftop Garden is destroyed.90 Some Gardeners are murdered and others imprisoned without trial.91 Others opt for resistance, collaborating with renegade scientists in order to undermine the Corps through biotechnological mischief. Similarly, the continued existence of the Carhullan community becomes precarious when the Authority announces that unofficial zones will be subject to readministration.92 Jackie then decides that the community’s ‘only real chance’

79 80 81 82 83

84 85 86 87 88 89 90 91 92

Ibid 34. Ibid. Ibid 18. Ibid 134. The first of these was Philip K Dick’s novel Do Androids Dream of Electric Sheep? (Weidenfeld and Nicolson, 2012). This was adapted into a film, Ridley Scott’s Blade Runner, released initially in 1982: Blade Runner: The Director’s Cut (Ladd Company, 1992) (‘Blade Runner’). In 2017, Blade Runner 2049 was released: Blade Runner 2049 (Columbia Pictures, 2017) (‘Blade Runner 2049’). Dick (n 83) 12. Ben Elton, Stark (Black Swan, 2006) 27. Ibid 378. Margaret Atwood, In Other Worlds. Science Fiction and the Human Imagination (Virago, 2011) 85. Atwood, The Year of the Flood (n 61) 48. Ibid 311. Ibid 271. Ibid 311. Hall (n 62) 159.

Wild time  139 is to launch an attack on the Authority 93 and thus instigate a ‘mass uprising, a groundswell’.94 In Body of Glass, the multis’ plan to eradicate the independent free town of Tivka, after purloining its most brilliant achievements, generates much of the dramatic tension in the novel. In Walkaway, the walkaways face systematic and violent attacks from default.95

Tricksters Walkaways tend to feature in the prelude to wild time, when increasingly authoritarian systems dictate the conditions of continuing human existence. Tricksters, with their flair for crossing boundaries, manage this period of transition, albeit in quite different ways, but are also able to adapt to the hostile and unstable environment of wild time. The ethos of the trickster is diametrically opposed to that of the tragic hero, who has dominated the Western literary tradition.96 The resilience, adaptability and flexibility of tricksters, or what Joseph Meeker has identified as the comedic impulse, come into their own in wild time. A preparedness to disregard both rules and moral codes is undeniably an asset when it comes to survival. Tricksters belong in the picaresque literary tradition, playing ‘an endless series of roles … in response to ever-changing circumstances’.97 Zeb, in Margaret Atwood’s MaddAddam trilogy, is the archetypal trickster or picaro. In the final book of the trilogy, Atwood tells us Zeb’s life story in interludes, first as recounted by Zeb to Toby, and then as reproduced by Toby in a sanitised and simplified version for the unworldly, or at least not of the old world, bioengineered Crakers. Zeb, whose survival skills were honed by an abusive childhood with a violent, corrupt father and neglectful mother, flees his home with his brother Adam after diverting part of their father’s illicit treasure trove into their own private bank accounts.98 His multifarious hacking skills, his capacity to ‘play code the way Mozart played piano’ and ‘waltz through firewalls’,99 enable him to delve and pry into his father’s more surreptitious and illegal pastimes, to reinvent himself continuously online, and to elude his pursuers, who hound him through numerous new identities, environments and physical transformations. For Zeb, the wary trickster, ‘[t]he only sure camouflage was ­unpredictability’.100 His varied roles include that of magician’s assistant in inundated Santa ­Monica,101 a stint working for an environmental organisation called Bearlift,102 an undercover  93 Ibid 161.  94 Ibid 195.  95 Doctorow (n 57) 139, 172–5, 314–5.  96 Meeker (n 58) 15–7, 24.  97 Ibid 62.  98 Margaret Atwood, MaddAddam (Bloomsbury, 2013) 125 (‘MaddAddam’).  99 Ibid 119. 100 Ibid 190. 101 Ibid 170. 102 Ibid 58.

140  Wild time operation as an unassuming ‘minor code slave’103 within the HelthWyzer corporation,104 an interval at Scales and Tails as a security guard and bouncer,105 a role as a non-pious Adam Seven in the God’s Gardeners teaching trickster tactics of Urban Bloodshed Limitation and Predator-Prey Relationships and Animal Camouflage,106 and finally life as an online bioterrorist. Crake eventually ‘scooped’107 his co-conspirators, the MaddAddamites, as ‘captive science brainiacs’108 to work on his Paradice bioengineering project but Zeb evades this fate with characteristic trickster elusiveness: ‘Crake never managed to capture him. He’d covered his tracks too well’.109 Zeb is Adam One’s brother but points out that they are opposites, ‘bookends’.110 Adam One has established his own benevolent religion with an accompanying set of strict behavioural rules. He advocates and practises a way of living designed to create a more harmonious relationship with God’s creatures and Earth. Violence is not condoned: ‘[y]ou can’t fight blood with blood’.111 Zeb leaves the God’s Gardeners and sets up the bioterrorist MaddAddam network112 because he is exasperated with Adam One’s pacifist creed.113 His approach is both pragmatic and straightforward: ‘I just use what I have to, to get where I need to go’.114 Like all tricksters, he is survival oriented. In Urban Bloodshed Limitation, he teaches the Gardener children that ‘the first bloodshed to be limited should be your own’.115 Even as Adam Seven in the strictly anti-technology God’s Gardeners, Zeb retained ‘one secret souped-up computer’ for ‘snoop[ing] on the CorpSeCorps’.116 After departing the Gardeners, Zeb undermines the Corps by repurposing their own biotechnology techniques. In a classic example of trickster subterfuge, the MaddAddamites, under Zeb’s guidance, create playful and expensive havoc by targeting cars, houses, ChickieNobs installations and even highways with ­genetically engineered bioforms.117 Zeb’s encryption talents118 and penchant for disguise serve him well in the prelude to the Waterless Flood but, like any trickster, he can adapt to new environments and contingencies. His survival skills

03 Ibid 248. 1 104 Ibid 190. 105 Ibid 293–4. 106 Atwood, Year of the Flood (n 61) 22, 61. 107 Atwood, MaddAddam (n 98) 142. 108 Ibid 43. 109 Ibid 142. 110 Ibid 114. 111 Atwood, Year of the Flood (n 61) 253. 112 Atwood, MaddAddam (n 98) 334. 113 Atwood, Year of the Flood (n 61) 252. 114 Ibid 185. 115 Ibid 22. 116 Atwood, MaddAddam (n 98) 331. 117 Margaret Atwood, Oryx and Crake (Bloomsbury, 2003) 216 (‘Oryx and Crake’). 118 Atwood, MaddAddam (n 98) 220.

Wild time  141 and resilience also equip him for a leadership role in the small group of human survivors after the Flood. Other resilient and adaptable tricksters can be found in the wild time of climate fiction. Marge Piercy’s Body of Glass, for example, features three such characters. Malkah, a feisty grandmother with a formidable intellect, shares with Zeb the trickster characteristics of an elite group of online virtuosos who shape not only the architecture of virtual worlds but also its chimeras and tricks. She creates and manipulates ‘misinformation, pseudoprograms, falsified data, the creation of the structures that protected … by misdirection’,119 describing herself as ‘a magician of chimeras’.120 There are infinite possibilities for shape shifting in a cyber universe and Malkah plays with all of them. Her daughter Rivka, a ‘political fugitive’121 who ‘liberat[es] information from the multis’,122 is also adept at shape shifting and the art of the masquerade. Finally, Yod, the cyborg created to protect Tivka, is the archetypal boundary crosser, a cyborg who self-identifies as human because he ‘think[s] and feel[s] and [has] existence’,123 a ‘battleground of warring programs’.124

Cyborgs and posthumans Posthumans, or the bioengineered, such as the Children of Crake in the ­MaddAddam trilogy, differ from the classic conception of cyborgs in that they are not manufactured from artificial or synthetic components but rather from laboratory blends of different genetic material. It is, however, difficult to delineate the distinguishing features of posthumans from those of cyborgs. Biological parts can be incorporated into at least fictitious versions of cyborgs.125 Humans, including the bioengineered, have considerable artificial augmentations. Donna Haraway has contended that we were all cyborgs by the late twentieth century: ‘theorized and fabricated hybrids of machine and organism’.126 In Body of Glass, Shira endorses this blurring of categories by describing Yod, the cyborg, as ‘just a purer form of what we’re all tending towards’.127 Here an extreme version of artificially enhanced humanity is exemplified in Nili and her community, self-engineered to withstand the dangerous levels of radiation in their ‘interdicted’ sector of the former Israel:128 ‘We clone and engineer genes. After

19 Piercy (n 78) 43. 1 120 Ibid 151. 121 Ibid 75. 122 Ibid 28. 123 Ibid 356. 124 Ibid 150. 125 Yod, the cyborg in Body of Glass, is a mix of biological and machine parts: ibid 67. 126 Donna J Haraway, Simians, Cyborgs and Women. The Reinvention of Nature (Routledge, 1991) 150. 127 Piercy (n 78) 142. 128 Ibid 187.

142  Wild time birth we undergo additional alteration. We have created ourselves to endure, to survive, to hold our land’.129 Is wild time the space of the posthuman? Margaret Atwood has written that her ‘genetically modified, peaceful, and sexually harmonious New Humans’, the Crakers, represent a ‘tiny utopia’ in the dystopian world of wild time;130 they are designed to survive and flourish, without ‘the ills that plague Homo sapiens ­sapiens’.131 Oryx and Crake has been described by one commentator as ‘posthuman fiction’.132 Michael Burger suggests that ‘circumstances call for new storylines. New storylines, in turn, call for new heroes’.133 He argues that the cyborg can play this role in the ‘postclimate era’ given its ‘outsider status’ and its lack of attachment to traditional narrative forms,134 transgressive characteristics emphasised by Haraway in her cyborg manifesto.135 Not all posthumans are resilient and well-adapted to the exigencies of wild time. Paolo Bacigalupi’s wind up girl, an outlaw reliant upon the scant protection of her ‘owner’,136 has design flaws that jeopardise her survival in post-midnight Bangkok. Her modified pore structure causes her to overheat with exertion.137 She also possesses, however, a number of characteristics that give her an advantage over humans: extraordinary strength and speed, the capacity and ‘potential to become lethal’,138 and immunity to the new diseases that rage through the human population.139 In most fictional texts, given the engineered advantages of cyborgs, humans are determined to maintain control over them and preserve important distinctions. The windups or New People in Paolo Bacigalupi’s The Windup Girl are regarded as property and made easily identifiable by their programmed ‘stutter-stop’ movements.140 In Body of Glass, the existence of cyborg Yod is a carefully guarded secret in light of the ‘corporate covenant’ that prevents robots from resembling people.141 In Philip K Dick’s original novel, on which Blade Runner was based,142 and the first Blade Runner film, humanoid robots or organic androids, referred to as replicants in the film, constitute ‘the mobile donkey engine of the colonisation program’;143 they enable the achievement of humanity’s off-planetary ambitions. 129 Ibid. 130 Atwood (n 87) 93. 131 Ibid 91 (emphasis in original). 132 Karin Hopker, ‘A Sense of an Ending – Risk, Catastrophe and Precarious Humanity in Margaret Atwood’s Oryx and Crake’ in Mayer and Von Mossner (eds) (n 11) 161, 162. 133 Michael Burger, ‘Recovering from the Recovery Narrative: On Glocalism, Green Jobs and Cyborg Civilization’ (2013) 46(4) Akron Law Review 909, 926. 134 Ibid 927. 135 Haraway (n 126) 150–1. 136 Paolo Bacigalupi, The Windup Girl (Orbit, 2010) 66. 137 Ibid 51. 138 Ibid 427, 384. 139 Ibid 488. 140 Ibid 52. 141 Piercy (n 78) 46. 142 Dick (n 83). 143 Ibid 12.

Wild time  143 Admittedly, Deckard’s status is ambiguous in the film, and certainly Rachel is a cyborg created for an earthly existence. Her implanted memories lead her to believe herself human and consequently she is, in Haraway’s words, ‘the image of a cyborg culture’s fear, love and confusion’.144 Other cyborgs, however, reside and work off-planet and they are hunted and killed if they are found on Earth, to ensure that no confusion arises in relation to their identity. In Blade Runner 2049, cyborgs have been re-engineered to be biddable and consequently are entrusted with largely undesirable roles in Earth’s workforce, as blade runners, prostitutes and executive assistants doubling as assassins. A key way in which humanity retains control over cyborgs is by ensuring that they cannot reproduce. Windups are engineered to be a ‘genetic dead end’145 but the book ends with the suggestion that this can be remedied.146 In Blade Runner 2049, cyborgs, with one hitherto well-concealed exception, have no capacity to bear children; as already discussed in Chapter 3, both an army of cyborg rebels and the technical genius who manufactures cyborgs are determined to duplicate the miraculous birth of Rachel’s child. In The Stone Gods, inter-‘species’ demarcations are also important. The state of the art cyborgs which feature both in the first story and in last two connected stories are acknowledged to be a new species, Robo sapiens, with the capacity to evolve and keep evolving: ‘[t]he first artificial creature that looks and acts human, and that can evolve like a human – within limits, of course’.147 This species is potentially ‘the future of the world’, as its exemplar Spike explains;148 ‘[h]umans are rendering themselves obsolete’.149 However, physical relationships between humans and cyborgs are strictly forbidden.150 In the last two stories, MORE, the mega corporation which controls the world, has plans to make the world’s first Robo sapiens the ultimate planetary decision-maker.151 This version of Robo sapiens is poised to exercise enormous power and responsibility but nevertheless exists as a head without a body,152 and is therefore both vulnerable and clearly identifiable as nonhuman.

Corporations The mega-corporation, already an omniscient presence in the Anthropocence, has overtly seized power from nation States in many fictitious versions of wild time, or at least in the dystopian preludes to wild time. We thus find ultimate

44 Haraway (n 126) 178. 1 145 Bacigalupi (n 136) 164. 146 Ibid 505. 147 Winterson (n 53) 14. 148 Ibid 64. 149 Ibid 65. 150 Ibid 15. 151 Ibid 132–3. 152 Ibid 132.

144  Wild time power residing in corporate tricksters although, with the acquisition of governing power, the mega-corporations have suppressed much of their trickster behaviour. Their capacity for double-speak and duplicity remains, with one overt display of embedded trickery in the corporate naming in Margaret Atwood’s dystopia. The MaddAddam trilogy features a variety of powerful corporations, including HelthWyzer, AnooYoo, RejoovenEsense, CryoJeenyus and OrganInc, which dominate the economic, social and political landscape immediately before the apocalyptic event that ushers in wild time. Privileged classes and the intellectual elite, sheltered within heavily guarded and surveilled corporate compounds, have access to every conceivable luxury; the dangerous, polluted and violent world outside the compounds is known as the pleeblands. The corporations have seemingly benevolent missions, administering health cures and anti-ageing products and even offering a frozen stasis for the deceased until revival becomes medically possible. In keeping with the Corps’ status as tricksters, these offerings are not what they seem but gullible consumers fail to discern the difference between reality and appearance. The highly profitable ruse perfected by HelthWyzer, which spreads illness through its supposed health supplements153 and then sells the afflicted ineffective medical ‘cures’,154 is duplicated in Crake’s ingenious plan to rid the planet of humanity. A devastating plague, originally created in HelthWyzer’s own laboratories, finishes off most of the human species after widespread circulation in the form of Crake’s highly popular BlyssPluss pills; these offer death rather than bliss.155 In this all too plausible dystopia, the CorpSeCorps, originally private security firms for the corporations, administer what remains of law and order after the collapse of local police forces;156 ‘the Corps had the power to bulldoze and squash and erase anything they liked’.157 Nevertheless, ‘most people felt the CorpSeCorps were better than total anarchy’.158 Similarly, in the final chapter of The Bone Clocks, set in the future time of ‘the Endarkenment’,159 the presence of the Chinese corporation Pearl Occident Company and its ongoing maintenance of the ‘Cordon’, a fenced and guarded area in west Ireland, is the only bulwark against chaos.160 After a nuclear power reactor accident at Hinkley Point in north Devon creates a contamination risk for the farm produce purchased by the Company, the Company unilaterally withdraws from its lease agreement with Stability, the governing body,161 and gang violence and looting promptly ensue.162 In the final story of The Stone Gods, set in the post-apocalyptic world of Post-3 War, MORE is the all-powerful corporate entity which has appropriated all 53 Atwood, Year of the Flood (n 61) 104. 1 154 Atwood, MaddAddam (n 98) 254. 155 Atwood, Year of the Flood (n 61) 395 156 Ibid 25. 157 Atwood, MaddAddam (n 98) 329. 158 Atwood, Year of the Flood (n 61) 34. 159 David Mitchell, The Bone Clocks (Holder and Stoughton, 2014) 533. 160 Ibid 550. 161 Ibid 565. 162 Ibid 570–2, 578–80.

Wild time  145 functions of erstwhile governments in the wake of a nuclear war: ‘Government was finished. “No MORE War” became the new slogan for a new kind of global company’.163 In this world, MORE exercises ‘complete control of everything and everyone, and with our consent’.164 MORE also features in the first story, which as it transpires is a story within the third story.165 Here the Central Power, ostensibly a democracy, is under corporate control. We are told that ‘MORE owns most of it, funds most of it, and has shares in the rest’.166 Given that the home planet Orbus has ‘[become] hostile to human life after centuries of human life becoming hostile to the planet’,167 MORE is intending to create a new settlement for ‘those who can afford it’, controlled by a ‘Board of Directors’,168 on the pristine, newly discovered Planet Blue. These plans are thwarted when an attempt to rid Planet Blue of its dinosaurs triggers a mini Ice Age.169 Corporations also dominate the global order in Body of Glass. Twenty-three multis ‘wielded power and enforced the corporate peace’.170 The privileged again live in corporate enclaves, with the added distinguishing feature of domes to block out hazardous ultraviolet radiation and the high temperatures of a too hot planet. The less privileged struggle to survive in the anarchy of the Glop.

The ‘animal’ in wild time Wild time portends chaos not just for its human and posthuman inhabitants but also for nonhuman species: an inexorable wave of mass extinctions, a terrifying sequence of ‘extinction cascades’.171 Most scientists would agree with Elizabeth Kolbert’s designation of the current era as ‘the sixth extinction’.172 She argues that we are in the throes of Earth’s sixth mass extinction event, precipitated by humans and potentially implicating humanity. Renowned biologist EO Wilson repudiates the term ‘the Anthropocene’ in favour of the Eremocene, or the Age of Loneliness.173 Deborah Bird Rose concurs, writing that: ‘The Anthropocene is bringing us into a new era of solitude, one marked less by our fragmented vision of ourselves than by the actual loss of co-evolved life’.174 The ramifications are far-reaching. 63 Winterson (n 53) 134. 1 164 Ibid 139. 165 Ibid 119. 166 Ibid 59. 167 Ibid 60. 168 Ibid 61. 169 Ibid 75. 170 Piercy (n 78) 3. 171 Deborah Bird Rose, ‘Shimmer. When All You Love is Being Trashed’ in Tsing et al (eds) (n 67) G51, G52. 172 Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (Bloomsbury, 2014). 173 EO Wilson, ‘Beware the Age of Loneliness’, The Economist (18 November 2013) . 174 Deborah Bird Rose, Wild Dog Dreaming. Love and Extinction (University of Virginia Press, 2011) 10.

146  Wild time Naming the animal In calling for biodiversity protection, environmentalists and scientists tend to focus on the integral role played by all species, including predator animals, in ecosystems and food chains. In a 2002 article, Derrida maintained that ‘animals’ serve an additional function for the human animal by virtue of being ‘Other’. This was, as Timothy Morton has commented, an early attempt to deconstruct or undo ‘the general category of “the animal”’.175 Derrida reflected upon the original ‘scene of name-calling, beginning at the beginning’,176 in the ‘awful tale’ of Genesis,177 and suggested that the process of naming invokes both the knowledge of mortality for the named178 and the ‘unique and indivisible limit held to separate man from animal’.179 In the online, ‘terminally boring’180 game Extinctathon of the MaddAddam trilogy, it is the already dead animals that are named by players. The gateway to the Extinctathon game, through which the initiated access the MaddAddam ‘playroom’,181 states that: ‘Adam named the living animals, MaddAddam names the dead ones’. Naming here is a substitute for engagement, an observer/subject exercise by which extinctions become a taxonomic puzzle and humans continue to separate themselves from ‘animals’. Yet naming is also part of noticing and can be accompanied by appreciation for other species.182 Adam One, founder of the God’s Gardeners, appears to hold this belief, preaching to his followers that ‘[t]o Name is – we hope – to greet; to draw another towards one’s self’183 and that ‘[t]he time of Naming is not over’.184 It is the Extinctathon website, or more specifically, its MaddAddam Grandmaster chatroom, which becomes the virtual meeting ground for the bioterrorists who disrupt Corps activities by releasing subversive bioforms.185 Given that the title Mad Adam was bestowed on Zeb by the Gardener children,186 and his role in coordinating the acts of bioterrorism, the reader could easily assume that MaddAddam is Zeb. However MaddAddam is ‘[m]ore than Zeb’;187 the term is a group reference to Zeb and his fellow conspirators.188 Crake describes his research team of ‘splice geniuses’, the ‘cream of the crop’, the former Extinctathon

75 Timothy Morton, ‘Ecologocentrism: Unworking Animals’ (2008) 37(3) SubStance 73, 74. 1 176 Jacques Derrida, ‘The Animal That Therefore I Am (More to Follow)’, tr David Wills (2002) 28(2) Critical Inquiry 369, 383. 177 Ibid 387. 178 Ibid 389. 179 Ibid 416. 180 Atwood, MaddAddam (n 98) 194. 181 Atwood, Oryx and Crake (n 117) 215–17. 182 Anna Tsing, ‘Arts of Inclusion, or, How to Love a Mushroom’ (2011) 50 Australian Humanities Review 5, 6–8. 183 Atwood, Year of the Flood (n 61) 12. 184 Ibid 13. 185 Atwood, Oryx and Crake (n 117) 216. 186 Atwood, The Year of the Flood (n 61) 61. 187 Ibid 333. 188 Ibid 333.

Wild time  147 Grandmasters as, collectively, MaddAddam.189 This new version of MaddAddam no longer named dead animals but, rather, ‘customize[d]’ live ones.190 Indeed, MaddAddam can be seen as an even more all-encompassing reference, to humanity before the Waterless Flood. The wordplay positions MaddAddam as the original Adam’s shadow self. If the original Adam named and, as Adam One asserts, thereby acknowledged his ‘kinship’ with all living creatures,191 ­MaddAddam has enacted this process in reverse, precipitating the wholesale demise of species whose names could fill ‘a couple of hundred pages of fine print’192 and then effectively erasing their names. The names continue to have meaning only in the Extinctathon game, in the ‘brains like search engines’ of its ­grandmasters,193 and in the codenames of the players. As gamer names, they prove to be unexpectedly tenacious. The Grandmaster bioterrorists retain them after their forcible recruitment by Crake into the ranks of the Corps194 and, somewhat surprisingly, even after the Waterless Flood.

That animal gaze A growing number of thinkers and writers have stated emphatically that a radical philosophical shift is required for survival in the Anthropocene: the acknowledgement or even celebration of our intricate, endless, interspecies ‘entanglement’,195 our shared co-dependencies with nonhuman species, our ‘passionate immersion’196 in their lives. Yet, in our contemplation of nonhuman species, the human gaze is partial and subjective. We may have studied, experimented on and bestowed names on all nonhuman species, consumed the edible ones and used the rest for an inconceivably broad range of human-centred purposes but overall, despite ongoing, necessary, largely taken-for-granted interactions with the nonhuman world, humanity remains wilfully blind and indifferent to the fate of most species. Deborah Bird Rose and Thom Van Dooren, reflecting upon the glaring disjuncture in the human gaze, have asked: Given that [the] creatures who are so vividly present in our imaginative lives are nonetheless on the edge of loss, what hope could there possibly

89 Atwood, Oryx and Crake (n 117) 298. 1 190 Ibid 216. 191 Atwood, Year of the Flood (n 61) 13. 192 Atwood, Oryx and Crake (n 117) 81. 193 Ibid. 194 Ibid 298. 195 See, for instance, Thom Van Dooren, ‘Vultures and their People in India: Equity and Entanglement in a Time of Extinctions’ (2011) 50 Australian Humanities Review 45 and Donna Haraway’s discussion of ‘multispecies worlding’, and sympoiesis or ‘worlding-with, in company’, in Donna J Haraway, Staying with the Trouble. Making Kin in the Chthulucene (Duke University Press, 2016) 10, 58. Haraway writes that ‘[a]pproaches tuned to “multi-species becoming-with” better sustain us in staying with the trouble on terra’: at 63. 196 Tsing (n 182) 19.

148  Wild time be for the countless other creatures who are less visible, less beautiful, less a part of our cultural lives? What of the unloved others, the ones who are disregarded, or who may be lost through negligence? What of the disliked and actively vilified others, those who may be specifically targeted for death? Then, too, what of those whose lives become objects of control in the name of conservation, and those whose lives are caught in the cross-hairs of conflicting human desires?197 We can and indeed must deplore the partiality of the human gaze and its consequences for both human and nonhuman species. The nonhuman turn demands that we invert this perspective and interrogate the significance of the animal gaze. For the most part, we blithely gloss over the animal gaze. Yet, as Amitav Ghosh writes, ‘the Anthropocene has forced us to recognize that there are other, fully aware eyes looking over our shoulders’.198 In his 2002 article, Derrida reminded us that, just as humans both regard and disregard other species, so too we are subjected to the animal gaze. The animal, he wrote, regards us from ‘the point of view of the absolute other’199 and ‘[a]s with every bottomless gaze, … the gaze called animal offers to my sight the abyssal limit of the human’.200 Attending to the nonhuman gaze raises provocative questions in a time of climate change. As climate change and other human-related disasters precipitate a rolling tide of extinctions, as the animal gaze falters and blinks out with the ongoing disappearance of our nonhuman observers, what then are the implications for humanity and for our perception of ourselves as human? Derrida’s foregrounding of the animal gaze is worth contemplating in the context of the denuded landscapes of wild time. The Blade Runner texts provide an intriguing perspective on the significance of animals and nonhumans in the dsytopia of wild time. In Dick’s novel and the first film, this is a version of wild time precipitated by World War Terminus201 and widespread radioactive fallout or ‘dust’. In Blade Runner 2049, in light of the appearance of giant sea walls, an inundated landscape outside those walls, widespread ecosystem collapse and a landscape devoid of all vegetation, climate change has also played a role. The remaining humans on Earth live in a highly technocratised and heavily urbanised world in which ‘real’ animals are inconceivably rare or altogether absent. If, however, the existence and gaze of the animal is indeed a precondition for the possibility of human identity, a way of establishing ‘the bordercrossing from which vantage man dares to announce

197 Deborah Bird Rose and Thom Van Dooren, ‘Introduction’ (2011) 50 Australian Humanities Review 1, 1. 198 Ghosh (n 9) 65–6. 199 Derrida (n 176) 380. 200 Ibid 381. 201 Dick (n 83) 5.

Wild time  149 himself to himself’, 202 this may well explain the prominence and indeed persistent reappearances of ‘animal’ substitutes in these texts. Nonhuman animals of both artificial and seemingly real dimensions have a haunting and enigmatic presence in the Blade Runner texts and the question of what exactly it means to be human or nonhuman is never fully answered. Animal substitutes seemingly shed little light on this question. In Blade Runner, the impassive, electronic gaze of an artificial owl as its owner Eldon Tyrell is savagely murdered by one of his Nexus-6 creations,203 in contrast to the horror of the one human witness, underlines the uncanniness of a world without animals; we can reproduce simulations in a world devoid of real animals but their gaze is empty of meaning. In Dick’s novel, it would appear that humanity has developed a heightened interspecies awareness and empathy for other species.204 Real animals are revered and valued, albeit commodified and desired as a form of property. The main protagonist, Deckard, covets a rare, real animal; his electric sheep is a poor substitute.205 This quality of interspecies appreciation distinguishes humans from the android, ‘which had no regard for animals, which possessed no ability to feel empathic joy for another life form’s success or grief at its defeat’.206 Androids mutilate a spider207 and kill a goat,208 actions that are inconceivable to humans of this wild time. The Voigt-Kampff Empathy test identifies androids through a series of questions largely related to the suffering or killing of live animals and their consumption.209 In the first Blade Runner movie, the Voigt-Kampff test retains this focus and the same questions are reproduced, as possible replicants are assessed for their response to an overturned and suffering tortoise,210 a calfskin wallet, a butterfly collection complete with killing jar, a wasp and a meal involving the consumption of a dead dog.211 In Blade Runner 2049, however, the Voigt-Kampff test is redundant. The animal, real or artificial, has still not completely disappeared; I explore the significance of the appearance of an implausible colony of bees in the next section. In the MaddAddam trilogy, in the corporate-dominated world that precedes wild time, only the God’s Gardeners pay any heed to the animal gaze. For the overwhelming majority, nonhuman species are viewed as commodities, as potentially useful edible or genetic material. Seemingly unregulated biotech antics prior to the Waterless Flood, and the consequent release of many of these bioengineered creatures in the wake of humanity’s demise, mean that any dividing line between the human, the animal and the posthuman has been largely eradicated. The genetically engineered Crakers resemble humans despite their 202 Derrida (n 176) 381. 203 Blade Runner (n 83) 01:22:40–01:22:43. 204 Dick (n 83) 24. 205 Ibid 9–10. 206 Ibid 25. 207 Ibid 162–3. 208 Ibid 179. 209 Ibid 38–41. 210 Blade Runner (n 83) 00:06:02–00:06:35. 211 Ibid 0:19:20–0:21:00.

150  Wild time interspecies augmentations. Part-human pigs observe human activities, deduce, reason and form conclusions. They have organised themselves into a foraging, functional community with a capacity to strategise, communicate and grieve for their murdered, and collaborate with the human survivors in hunting down the remaining Painballers. They even participate in the vote on the fate of these killers after a quasi-trial has taken place.212 Some familiar creatures remain, notably small ones such as rats, moths, slugs, snails, frogs and crickets as well as birds such as vultures and crows. This is largely, however, a world of bioengineered animal creations in various grotesque, 213 comic214 and vicious215 permutations. We are most aware of the gaze of our domesticated animals but our ongoing relationship of care for these creatures largely disintegrates in wild time. One exception to this occurs in Lucy Kirkwood’s The Children, when Robin risks his life in order to bury the couple’s cows after they are exposed to lethal doses of radiation.216 This echoes the response of Japanese farmers who continued to care for and milk their cows in a radioactive hotspot, after the 2011 Fukushima nuclear power plants meltdown.217 The townsfolk in Dyschronia, faced with the unknown dimensions of wild time after the sea retreats, react quite differently and make the pragmatic decision to abandon their domestic dogs. They reason: They are animals, after all; they will do better out there, with their own kind. Resources will be short and space will be limited. We all need to make adjustments; we all need to adapt.218 Pragmatic decisions to slaughter and eat domestic animals are part of wild time in an inundated Melbourne in The Glad Shout; Isobel reflects on ‘the sickening gap between the urgency of their situation, and the rightful place of kittens in the world – the old world’.219 In the bleakest of wild times, however, the animal gaze has completely disappeared, with dire implications for humanity. In the post-apocalyptic landscape of Cormac McCarthy’s The Road, the only living animal is a dog, not seen but heard barking in the distance.220 12 Atwood, MaddAddam (n 98) 367–9. 2 213 For example, ChickieNobs are genetically modified chickens without heads, but with multiple legs, wings and breasts; Atwood, Oryx and Crake (n 117) 202–3. 214 For example, Mo’Hairs are sheep with human hair, designed for hair transplants; Atwood, MaddAddam (n 98) 30. 215 For example, the deceptively dangerous liobams, a ‘lion-sheep splice’: Atwood, Year of the Flood (n 61) 94; ‘crafty, wicked’ pigoons: Atwood, Oryx and Crake (n 117) 235; and ferocious ‘wolvogs’: Atwood, Oryx and Crake (n 117) 205. 216 Lucy Kirkwood, The Children (Nick Hern Books, 2016) 60–1. 217 Jonathon Watts, ‘The Dairy Farmers Who Returned to Fukushima’s Fallout Path’, The Guardian (online, 11 May 2011) . 218 Mills (n 18) 61. 219 Alice Robinson, The Glad Shout (Affirm Press, 2019) 118. 220 Cormac McCarthy, The Road (Picador, 2006) 69.

Wild time  151 Bees in wild time Bees play a prominent role as both resilient inhabitants and ominous absences in the wild time of climate fiction. The reasons for this are worth contemplating. It could well be, as Freya Matthews speculates in a 2011 essay, that the disappearance of bees signifies the unravelling of the planetary ecological story, the story of Earth itself, 221 and hence the onset of planetary colony collapse disorder triggered and continues to generate a ‘slightly different register of despair’ to that created by other extinction events.222 It is certainly possible that the disappearance of bees would of itself usher in wild time. The absence of bees, and what this means for humanity, is at the heart of Maja Lunde’s The History of Bees. She documents the contemporary collapse of bee colonies and its impact on a small beekeeping family in rural America, and the future without bees. In the China of wild time, agriculture continues and humanity endures because human beings have assumed the role of bees, hand pollinating trees for little reward. As this futuristic story unfolds, we discover that bee populations may be recovering. A bee is responsible for the death of a central character’s small son and thus bees represent both cautious hope and personal tragedy. Bees feature in one of the interlinked stories in James Bradley’s Clade, 223 providing a sense of interconnectedness and belonging for a Bangladeshi asylum seeker and inspiring an artistic project for a central character, Ellie. In undertaking research for the project, Ellie uncovers both the ancient lineage of bees224 and the disturbing evidence of their contemporary vulnerability.225 For Ellie, the magnified renditions of bees in her project are ‘a reminder of the presence of otherness in the world and the loss of its passing’.226 In the MaddAddam trilogy, bees interact consciously and deliberately with their human companions. Former biochemist and senior God’s Gardener Pilar believes that bees are messengers between the dead and the living, as well as intelligent beings with whom respectful communications can and must take place. 227 The sceptical 228 but nevertheless susceptible Toby continues these polite exchanges with bees after Pilar’s death, 229 and indeed after the Waterless Flood has occurred. Within the framework of Pilar’s animist belief system, bees choose to become denizens in a harmonious human and nonhuman community, cooperating of their own free will. Toby is very conscious of both the gaze and cognition of the inhabitants of the bee colonies that fall under

221 Freya Matthews, ‘Planet Beehive’ (2011) 50 Australian Humanities Review 159, 174. 222 Ibid 161. 223 Bradley (n 19). 224 Ibid 138. 225 Ibid 129–30. 226 Ibid 142. 227 Atwood, The Year of the Flood (n 61) 99–100. 228 Ibid 100. 229 Ibid 181, 257–8.

152  Wild time her care: ‘[t]hey touch her lips, gather her words, fly away with the messages, disappear into the dark’. 230 Bees assist Toby and the other God’s Gardeners in removing the dangerous Painballers from the Edencliff Rooftop Garden. 231 Despite such cooperative interactions, the gaze of bees has taken on sinister dimensions in the period before the Waterless Flood, when the Corps produce a hybrid, partially mechanised bee that functions as a ‘bee cyborg spy’. 232 Such bees remain observant messengers but their messages are delivered to the Corps. The possibility of artificial bees is also raised in Blade Runner 2049, when blade runner and replicant K stumbles across an improbable beehive in the deserted, radioactive, sacrifice zone that is the former Las Vegas. The presence of bees and a friendly dog in a world seemingly devoid of nonhuman species contribute to the enigma surrounding the reclusive existence of former blade runner Deckard. The bees are curious, non-aggressive and noticeably alive in an otherwise devastated landscape. There is almost a mystical quality to this fragment of a scene, as K encounters the bees and the bees encounter K.233 The bees register, acknowledge and accept K’s presence without hostility. As with Blade Runner, the question as to what and who is artificial or real, created or born, human or nonhuman, remains largely unanswered.

Conclusion In the above discussion, I have touched on some common themes in climate fiction: a fascination with time as a nonlinear phenomenon and, in some instances, with deep time, a recognition of the importance of the unpredictable trickster in the ungoverned chaos of wild time, an enhanced role for all-powerful corporations in the prelude to wild time and the growing influence of the posthuman. Climate fiction also explores the dimensions and consequences of accelerating species extinctions. These themes speak to some of our overriding concerns and fears about climate change and the future. The prevailing influence is dystopian. In this final section, I return to a question that I briefly considered in the introductory chapter: namely, the extent to which the disruptive and unsettling content in climate fiction influences activist narratives and, more broadly, social movements for transformative change. Although I emphasised the transformative potential of speculative fiction in that chapter, any correlation between climate fiction and political and social change is difficult to establish. Fictional climate narratives may fail to serve any such broader social and political purpose, for a number of reasons. Climate fiction that catapults us forward into the vicissitudes of wild time may well be designed, in part, as deterrent and warning. As Adeline Johns-Putra, 230 Atwood, MaddAddam (n 98) 277. 231 Atwood, The Year of the Flood (n 61) 255. 232 Ibid 277. 233 Blade Runner 2049 (n 83) 1:37:13–1:38:10.

Wild time  153 reflecting upon the appeal of ‘eco-apocalyptic rhetoric’, writes, such rhetoric ‘implores us to think of lost pastoral pasts, trusting that we will be inspired to reverse the devastations of the present’.234 Climate fiction enhances our capacity to imagine the worst outcomes and, as Marijana Milkoriet has pointed out, humanises climate change; climate change is portrayed as a ‘thoroughly human and social experience rather than an environmental problem’.235 This should of itself be constructive in deterring individuals and nation states from engaging in behaviours and actions that produce such outcomes for people like ourselves. This is not, however, necessarily the case. Fictitious scenarios can inspire incredulity. Although fictitious climate narratives are frequently based on scientific research, the distinction between the ‘real’ and the imagined is culturally important and fiction is readily dismissed or disregarded as non-factual speculation, as not real. Scientific modelling and projections of environmental conditions on Hothouse Earth have met with some scepticism but, nevertheless, scientific narratives have a cultural authority and weight that fiction lacks. A prevailing focus on human adaptation or mal-adaptation in the wild time of climate fiction may also induce a sense of fatalism. With increasing urgency, scientists are telling us that we still have some power to avert the most doom-laden scenarios, although there are grounds for believing that we have already overshot the mark in terms of certain planetary boundaries and are currently observing the onset of irreversible tipping points. In the wild time of climate fiction, however, that opportunity has been lost. As Adam Trexler writes, ‘climate dystopias gloss the present moment, effacing both the political opportunities and the shortcomings confronted by the contemporary reader’.236 Instead, the reader or viewer is negotiating a transformed world, a world irrevocably disfigured by the ravages of climate change. M Jackson has observed that ‘narrating glaciers as climate change ruins normalizes and predetermines a glacier-free world not yet in existence while reducing the range of imaginable climate change-influenced futures’.237 Once we have explored the worst or at least extremely unpalatable future outcomes through the imaginings of writers and filmmakers, such outcomes may seem inevitable to us. The portrayal of dystopian futures in climate fiction can ‘hide and obscure other possible futures’.238

234 Adeline Johns-Putra, ‘“My Job Is to Take Care of You”: Climate Change, Humanity and Cormac McCarthy’s The Road’ (2016) 62(3) Modern Fiction Studies 519, 525. 235 Marijana Milkoreit, ‘The Promise of Climate Fiction. Imagination, Storytelling, and the Politics of the Future’ in Paul Wagner and Hilal Elver (eds), Reimagining Climate Change (Routledge, 2016) 171, 179. 236 Trexler (n 6) 120. 237 M Jackson, ‘Glaciers and Climate Change: Narratives of Ruined Futures’ (2015) 6(5) WIREs Climate Change 479, 479. 238 Milkoreit (n 235) 188.

154  Wild time There are parallels here with what Lisa Grow Sun calls ‘disaster mythology’: narratives that prevent prompt and effective responses to disaster situations.239 She has documented the role played by disaster mythology in the wake of Hurricane Katrina, when media reports painted a bleak and inaccurate picture of anarchy, violence and lawlessness.240 Humanitarian missions were impeded by this misrepresentation of the disaster victims, as governments focused on law enforcement and security.241 Disaster mythology can ‘feed police misconduct and citizen vigilantism’.242 Elements of disaster mythology can be found in some climate fiction, which incorporates the Hobbesian idea that the human capacity for cooperation and mutual assistance depends upon the social contract and disappears when social institutions disintegrate or are obliterated; force and violence then become rampant. Fictitious accounts that draw from and feed into disaster mythology can impact adversely upon both mitigation and adaptation responses, even before wild time is upon us. Timothy Morton has provided a slightly different perspective, objecting to the deferment of wild time implicit in fictional apocalyptic narratives. He argues that such narratives, ‘[b]y postponing doom into some hypothetical future’, thereby ‘inoculate us against the very real object that has intruded into ecological, social and psychic space’243 and ‘inhibit a full engagement with our ecological coexistence here on Earth’.244 In reflecting on how the real climate change story of the disappearing Isle de Jean Charles in Louisiana has followed the fictitious storyline in the ‘magical-realist indie epic’ film, Beasts of the Southern Wild, 245 Elizabeth Rush also alludes to the fallacy of assuming that climate catastrophe lies ahead of us rather than around us. She writes that ‘[t]he lines between our imagined futures and the present tense grow increasingly blurry with every passing day’.246 These concerns highlight some of the impediments to the politicising potential of climate fiction. In the final chapter, I return to the role of climate narratives generally as catalyst, and the equally significant functions of climate narratives as mirror and script.

239 Lisa Grow Sun, ‘Disaster Law and Order’ in Rosemary Lyster and Robert R M Verchik (eds), Research Handbook on Climate Disaster Law (Edward Elgar, 2018) 133. 2 40 Ibid 134–5. 2 41 Ibid 136–7. 2 42 Ibid 144. 2 43 Timothy Morton, Hyperobjects. Philosophy and Ecology after the End of the World (University of Minnesota Press, 2013) 103–4. 2 44 Ibid 7. 2 45 Beasts of the Southern Wild (Journeyman Pictures, 2012). 246 Elizabeth Rush, Rising. Dispatches from the New American Shore (Milkweed Editions, 2018) 178.

6 Beyond reason, beyond rules

Scientific modelling tells us that climate change will radically restructure and reshape our environment; indeed, that process has already begun. In climate fiction, as outlined in the previous chapter, storytellers have envisaged the profound impacts of this on our social and political institutions and on our interactions with each other, with nonhuman species and with our external surroundings. Climate change alters our relationship with time. Even more fundamentally, ongoing accelerating climate disruption requires us to change the way we process information and respond to it. In this chapter, I address the limitations of existing structures, rules and modes of reasoning in the context of climate change, and the transformative possibilities in certain modes of climate activism for challenging powerful institutions and unsettling our established patterns of thinking. I look specifically at forms of activism which play with and overturn established memes and tropes, expose the weaknesses of seemingly impermeable capitalist structures, and jolt us into realising that climate change constitutes more than an external phenomenon: it is, and will increasingly become, embodied and lived experience. Activist narratives which draw upon trickster strategies, which undo, surprise and propose alternative ways of thinking and being, tell us that the boundaries between where we are and where we need to be are permeable and transparent. In the trickster universe, all boundaries can be crossed,1 existing rules are ephemeral, and long-held certainties are open to debate.2 Activism intersects with law, and thereby generates additional possibilities for climate narratives, when activists commit illegal acts. Climate activists who break legal rules are increasingly drawing upon the defence of necessity in the courtroom. The defence of necessity presents judges and juries with the following conundrum: the law acknowledges that it is acceptable to break the law in an emergency or situation of imminent crisis. Trials can thus offer an opportunity

1 Lewis Hyde describes tricksters as ‘the lords of in-between’: Lewis Hyde, Trickster Makes This World. Mischief, Myth and Art (Farrar, Strauss and Giroux, 2010) 6–7. 2 Hyde also describes the trickster as ‘the mythic embodiment of ambiguity and ambivalence, doubleness and duplicity, contradiction and paradox’: ibid 7.

156  Beyond reason, beyond rules outside the civil lawsuits discussed in previous chapters for activists to raise evidence of the catastrophic impacts of climate change in a courtroom. Yet the proposition that the climate change crisis suspends the operation of legal rules also supports the establishment of a climate state of exception. Giorgio Agamben has written that ‘the state of exception presents clear analogies to the right of resistance’3 in that both comprise extrajuridical ‘sphere[s] of action’.4 Climate exceptionalism and official recognition of the climate emergency can potentially usher in the totalitarian state, the setting aside of the rule of law and the erosion of human rights safeguards. In the second part of this chapter, I consider the implications of climate change and the narrative of climate emergency for law’s rules and law’s empire.

Climate activism and dark play Climate change disregards established rules; hence, as already mentioned in Chapter 1, Robin Kundis Craig has described it as a trickster. Conversely, entrenched legal rules, behavioural rules and institutional rules cannot adequately contain or address climate change. Teenage climate activist Greta Thonberg, addressing a crowd at a massive climate rally in Finland in October 2018, stated that: ‘[w]e can’t save the world by playing by the rules because the rules have to change’.5 We need to learn and unlearn new behavioural patterns and new forms of performance, playing with existing rules that dictate the way we live and co-exist. Climate activists are exploring multiple opportunities for not merely breaking rules but, perhaps more significantly, playing with the rules themselves. In this section, I examine some of the rule-defying dimensions of climate activism and contend that the phenomenon of dark play becomes relevant here. As previously discussed in Chapter 1, dark play is very much a trickster activity. In dark play, the ‘play frame’ or governing rules are ‘absent, broken, porous or twisted’.6 It may well be that the primary outcome of dark play is ongoing disruption. Given, however, the self-evident limitations of reason, rationality and technology in dealing with climate exceptionalism, disruption caused by climate activism can be viewed as desirable, even essential: the stimulus for new ways of thinking and doing. Humanity, lulled into complacency by the longterm climatic stability of the Holocene era, is currently trapped by ‘the inertia of habitual motion’7 from embarking upon the sweeping social, political and 3 Giorgio Agamben, State of Exception, tr Kevin Attell (University of Chicago Press, 2005) 10. 4 Ibid 11. 5 Quoted in Jessica Corbett, ‘Teen Climate Activist to Crowd of Thousands: “We Can’t Save the World by Playing by the Rules Because the Rules Have to Change”’, Common Dreams (online, 20 October 2018) . 6 Richard Schechner, The Future of Ritual: Writings on Culture and Performance (Routledge, 1993) 41. 7 Amitav Ghosh, The Great Derangement. Climate Change and the Unthinkable (University of Chicago Press, 2016) 54.

Beyond reason, beyond rules  157 behavioural changes required to address the climate crisis. Dark play takes us to dangerous and radical terrain, beyond or outside all rules. This is a place that feels unfamiliar, uncomfortable and even uncanny, and therefore one that foreshadows and mimics the disruption of wild time. It is not only paradoxical and irrational but patently irresponsible to cling to cultural patterns, forms of reasoning and modes of performance which imperil humanity. Our stubborn adherence to these patterns, processes and performances is part of a phenomenon described as ‘the great derangement’ by Amitav Ghosh. This term encompasses the cultural ‘patterns of evasion’8 and ‘modes of concealment’9 that cumulatively lead to ‘the broader imaginative and cultural failure … at the heart of the climate crisis’.10 It is possible to view innovative, experimental and often dark forms of climate activism, which expose the illusory and chimerical nature of our current belief systems and interrogate our ongoing compulsion to ‘mis-perform ecologically’,11 as a necessary, trickster-style catalyst. As Lewis Hyde argues, ‘the origins, liveliness and durability of cultures require that there be space for figures whose function is to uncover and disrupt the very things that cultures are based on’.12

Defying tropes, creating memes Performance studies theorist Baz Kershaw has argued that environmental activism is most effective when activists engage with trickery and identity–swapping, playing with and upsetting expectations. He maintains that ‘anti-organisations’ which engage in ‘guerilla theatre’, and replace ‘the po-faced demeanour of the mainstream organizations with the humor of pranks and the spirit of a party’,13 provide us with quite different performative possibilities to staged, large-scale, protest events. By using farce and ‘the traditions of the trickster’, and by ‘engaging in paradox in its performative structure’,14 some eco-activist performances offer up a ‘“wormhole” – a way through to another universe’.15 I address some of the market-based activities of climate tricksters in the next section. My focus here is on forms of climate activism that ‘engag[e] in paradox in [their] performative structure’ by deliberately challenging our inbuilt expectations and entrenched cultural stereotypes. Examples include the improvisational play of two groups of Australian women activists, the Climate Guardians and the Knitting Nannas, who in their respective guises as militant angels and activist grandmothers are committed to upsetting tropes. A third example of creative 8 Ibid 11. 9 Ibid. 10 Ibid 8. 11 Baz Kershaw, ‘“This is the Way the World Ends, Not . . . ?”: On Performance Compulsion and Climate Change’ (2012) 17(4) Performance Research 5, 5 (emphasis in original). 12 Hyde (n 1) 9. 13 See Baz Kershaw, ‘Ecoactivist Performance: the Environment as Partner in Protest?’ (2002) 46(1) TDR/The Drama Review 118, 126. 14 Ibid 128. 15 Ibid 127–8.

158  Beyond reason, beyond rules confrontation with cultural imagery, namely that which prevails in corporate advertising and corporate greenwash, can be found in the activities of Brandalism in the streets of Paris during COP 21. The Climate Guardians ‘use angel iconography to highlight the vital role of guardianship of precious natural resources in addressing the global threat from climate change’.16 In the words of founding member Liz Conor, flocks of Climate Guardians have sprung up everywhere,17 participating in Australian blockades such as the blockade against a large-scale coal seam gas project in the Pilliga and the Break Free blockade of Newcastle port in May 2016, and taking a leading role in the Parisian streets at the end of 2015. The Climate Guardians are neither elitist nor parochial; anyone can be an angel. On the Climate Guardians website are instructions on how to make your own DIY angel wings with old coat hangers, wire and reused fabric or plastic bags.18 It is not enough, however, for the Climate Guardians to simply make a spectacular angelic appearance at public events and gatherings. Far from being distant and aloof, in the classic angelic tradition, the Climate Guardians are active, engaged and robustly participatory angels. Their engagement in direct action or satirical activities as transgressive angels enables them to play a far more politically effective role than one of purely visual entertainment.19 Law-breaking is condoned but angels abide by their own angelic code of etiquette at all times; they ‘remain above displays of rudeness, rage, aggression or other anti-social behaviour’.20 The subversive power of the Knitting Nannas, who describe themselves as a ‘disorganisation’,21 also lies in upsetting cultural stereotypes, here that of the inoffensive grandmother or crone who occupies herself with domestic activities in the private sphere. Again, they have their own code of conduct, the Nannafesto. The Nannas are remarkable for their ‘humour, energy, generosity, frankness and wild musicality’ and share ‘a determination both to defend the environment and to repudiate the veil our culture still imposes on women over 50’.22 They have forcibly and volubly inserted themselves and their domestic skills into public controversies involving coal seam gas mining. In knitting transgressively, they are drawing upon the formidable tradition of Les Tricoteuses, the market women of the French Revolution who bore witness to multiple executions by knitting next to the guillotine.23 16 ‘Climate Guardians’, Clim Acts (Web Page) . 17 Liz Conor, ‘ClimActs at COP 21, Paris’ (Conference Paper, Psi#22 Conference Performance Climates, 8 July 2016). 18 ‘How to Make Your Own DIY Angel Wings’, Clim Acts (Post, 28 August 2015) . 19 Conor (n 17). 20 The Climate Guardians, ‘Action Etiquette’, Clim Acts (Web Page) . 21 Elizabeth Farrelly, ‘KNAG Power: Knitting Nannas on the March against Fracking Polluters’, The Sydney Morning Herald (online, 1 September 2017) . 22 Ibid. 23 ‘The Original Knitting Nannas – Les Tricoteuses’, Knitting Nannas Against Gas (Web Page) .

Beyond reason, beyond rules  159 The Nannas’ knitting has crossed the boundaries of what is considered acceptable; it is excessive, outrageous, and constantly reproducing. Their range of products extends beyond conventional beanies, tea cosies and toys into custom made protest knitwear: ‘lock the gate’ triangles, knitted lengths to symbolically lock roads and gates, and knitted protester accessories such as cushions and chainsleeves.24 Their knitting is both an overt manifestation of domesticity that defuses the possibility of violent retaliatory responses, and a material manifestation of the concept of entanglement. Importantly, the Nannas, like the Climate Guardians, do not confine themselves to knitting and also participate in direct action. Angela Dalu, a 70-yearold grandmother of 22, locked on with other Knitting Nannas at the Pilliga in January 2016 in order to prevent the largest coal seam gasfield in New South Wales. She was subsequently arrested and provided the following explanation for her act of civil disobedience: If the government can show me that the kids don’t get sick and the water in the Condamine doesn’t bubble and all the land isn’t ruined, that the evidence there isn’t true, that it isn’t real, then I will put down the needles. Until then, I sit and knit.25 The Knitting Nannas are not alone in defying cultural stereotypes of older women and uniting as empowered grandmothers in climate activism. In the Northern Territory, First Nations women elders opposed to fracking have formed the Growling Grannies against Gas. In the United States and Canada, the ­R aging Grannies, also defying ‘bygone stereotypes of senior women’, have long promoted social justice through the robust performance of protest songs; originally gathering together for anti-nuclear protests, they now consider climate change as the ‘larger issue’.26 Raging Grannies have been arrested for climate protest activities27 and one of the Valve Turners, the five activists who temporarily disrupted the flow of tar sands from Canada through the United States

2 4 ‘Knitting Nannas against Gas (KNAG)’, Knitting Nannas against Gas (Web Page) . 25 Quoted in Eva Jeffery, ‘Seventy-Year-Old Knitting Nonna Locks On in the Pilliga’, Echo NetDaily (online, 19 January 2016) . 26 Zi-Ann Lum, ‘Raging Grannies Pissed about Lack of Political Vision on Climate Change, Affordable Housing’, Huffington Post (online, 15 October 2015) . 27 Jonathon Glover, ‘Three “Raging Grannies” Arrested for Blocking Oil and Coal Trains’, The Spokesman (online, 31 August 2016) ; Sarah Kaplan, ‘Meet the 92-Year-Old “Raging Granny” Who Just Got Arrested For Protesting Arctic Oil Drilling’, The Washington Post (online, 10 June 2015) .

160  Beyond reason, beyond rules by closing the emergency shut off valves on four pipelines in October 2016, was Raging Granny Annette Klapstein.28 A third example of performative paradox in the arena of climate activism can be found in the activities of the United Kingdom-based Brandalism group. Without any form of official permission, this group placed its own artworks in advertisement spaces in Paris in December 201529 and thus, through clever word play and parody, exposed the complicity in climate change on the part of major corporate sponsors of the contemporaneous United Nations climate talks. The corporate sponsorship of COP 21 was symptomatic of the ongoing, global, corporate domination of domestic and international political climate agendas. Companies targeted in ­Brandalism’s anti-advertisements included airlines, car manufacturers, banks and fossil fuel energy companies. Some of the most effective ‘artworks’ cleverly mimicked the official advertising of these companies30 while highlighting the hypocrisy of corporate expressions of climate change concern and corporate attempts at greenwashing. The anti-advertisement for Air France read: ‘Tackling climate change? Of course not, we’re an airline’. That for Volkswagen, referencing the company’s ‘­Dieselgate’ scandal when its ongoing deception of the public and regulators in relation to car emissions was exposed, read: ‘We’re only sorry we got caught’. Brandalism’s unauthorised appropriation of corporate owned advertising spaces31 was a strikingly effective form of subversive climate activism, aimed at upstaging corporate voices and combating their overwhelming visual bombardment of our public space. This strategy clearly exposed corporate messaging as corporate deception. It was highly visible at a time when global attention was focused on Paris. Furthermore, its impact was not restricted to Parisian streets but was greatly amplified by social media.32 The subversive undoing of dominant cultural messaging and metaphors resonated with trickster behaviour.

Climate tricksters in the marketplace The foray of climate tricksters into the marketplace provides an additional dimension to the deployment of trickster strategies by climate activists. Two infamous examples can be found in the ‘pranks’ or hoaxes perpetrated by Tim DeChristopher and Jonathon Moylan: the audacious bidding for oil and gas leases by DeChristopher in 2008 and the 2013 sharemarket hoax perpetrated by Moylan. Although both could be regarded as playful, they had short-term 28 Dean Kuipers, ‘Pipeline Vandals Are Reinventing Climate Activism’, Wired (online, 9 November 2018) . 29 ‘Brandalism COP21’, Brandalism (Blog Post, 16 December 2016) . 30 Rachael Steven, ‘Brandalism Hijacks Paris Ad Space to Target Climate Conference Sponsors’, Creative Review (1 December 2015) . 31 The advertising spaces were owned by JC Devaux, also an official sponsor of COP 21: Brandalism, ‘Over 600 Fake Adverts Denounce Hypocrisy of the COP21 Paris Climate Talks’ (Media ­R elease, 28 November 2015) . 32 Steven (n 30).

Beyond reason, beyond rules  161 economic and market ramifications which were viewed very seriously by prosecutors, judges and those responsible for protecting the marketplace from unwarranted intrusions and interruptions.33 In 2008, DeChristopher, an American student and activist, attended a Bureau of Land Management oil and gas lease auction in Salt Lake City and presented himself as an authentic bidder, successfully placing bids of almost $1.8 million. He was motivated to do this in light of the pristine nature of the land that was being auctioned and the climate change implications arising from the leases. DeChristopher, a charismatic and eloquent speaker, became widely known as Bidder 70 and his actions and subsequent trial attracted widespread publicity.34 DeChristopher was found guilty of two offences,35 even though the auction was subsequently invalidated by the incoming Obama administration and all leases cancelled.36 He received a prison sentence of two years. In January 2013, Australian activist Jonathon Moylan copied a logo from the ANZ Bank website, put together a counterfeit press release purporting to be from the ANZ, and circulated it by email to 306 people, including 295 journalists. The email claimed that the bank had withdrawn $1.2 billion in funding from ­W hitehaven’s controversial Maules Creek mine project. As a consequence, although the hoax was quickly discovered and a correction issued, Whitehaven’s share price plummeted by $314 million. Moylan was prosecuted by the Australian Securities and Investment Commission for a breach of the Corporations Act 2001 (Cth). He pleaded guilty to the charges prior to his Supreme Court trial and received a prison sentence of one year and eight months, but was released on a good behaviour bond.37 Both hoaxes targeted the marketplace. DeChristopher derailed an auction by attending the auction, assuming the role of a legitimate bidder, and bidding for leases that he could not afford and did not plan on using. Moylan’s disruption of the market was achieved virtually rather than in person. From his primitive protest camp outside the proposed Maules Creek mining site, using a laptop and mobile phone, Moylan delivered a far more dramatic blow to the sharemarket than he intended; he did not anticipate that his hoax would have such a dramatic impact on share prices or on investors.

33 For an account of the responses to Moylan’s action, see Matthew Rimmer, ‘Stand with Jono: Culture-Jamming, Civil Disobedience and Corporate Regulation in an Age of Climate Change’ in Nicole Rogers and Michelle Maloney (eds), Law as if Earth Really Mattered: The Wild Law Judgment Project (Routledge, 2017) 293. 3 4 DeChristopher’s story has been told in a documentary by George and Beth Gage: Bidder 70 (Gage and Gage Productions, 2012). 35 Kirk Johnson, ‘Federal Jury in Utah Convicts Environmentalist’, The New York Times (online, 3 March 2011) . 36 See Leslie Kaufman, ‘Drilling Leases Scrapped in Utah’, The New York Times (online, 4 February 2009) . 37 Louise Hall, ‘Jonathon Moylan Avoids Jail Term for Fake ANZ Media Release about Whitehaven Coal’, The Sydney Morning Herald (online, 25 July 2014) .

162  Beyond reason, beyond rules According to Richard Schechner, dark play is often physically risky. It ‘involves intentional confusion or concealment of the frame “this is play”’.38 Furthermore, ‘[t]he play frame may be so disturbed or disrupted that the players themselves are not sure if they are playing or not – their actions become play retroactively: the events are what they are, but by telling these events, by re-performing them as narratives, they are cast as play’.39 All of these characteristics of dark play are apparent in the performances of Moylan and DeChristopher. Physical risk arose from the very real likelihood, realised in DeChristopher’s case, of imprisonment as a consequence of the play. The concealment of the play framework in both contexts particularly infuriated the official protectors of the imperilled markets. Part of the official outrage at both hoaxes seemed to stem from the audacity and incongruity in both men assuming the role of market players and receiving recognition as genuine players, albeit briefly. As two journalists wrote immediately after the hoax, Moylan was ‘an unlikely participant in the pinstriped world of the sharemarket’ with ‘his untamed beard, radical politics and makeshift home in the scrub’.40 It is also interesting to consider, in relation to the last characteristic, what was play and what was real in the market games in which Moylan and D ­ eChristopher engaged. The officeholders who decided to prosecute and the judges who sat in judgment constructed criminal narratives rather than narratives of play, due to the market outcomes and the consequential disruption of the play frame. Yet Moylan and DeChristopher’s actions had an immediate and overt effect on the markets in question only because the markets are themselves a game, a play frame, into which the activists deliberately inserted themselves and began to play subversively. In fact, despite the anomalous rhetoric of market integrity,41 financial and corporate marketplaces rely upon and flourish through officially sanctioned trickery and play, and so-called legitimate transactions undertaken in such marketplaces share the characteristics of dark play. Moylan and DeChristopher’s actions were viewed as threatening precisely because they exposed this underlying truth: all is not as it seems in the global marketplace.

Activism as embodied performance Climate activism frequently takes the form of embodied performance, as activists enact climate change impacts and concerns and even etch these concerns on 38 Schechner (n 6) 38. 39 Ibid 39. 40 Peter Ker and Mark Hawthorne, ‘How Hoaxsters Hold Market to Ransom’, Business, The Sydney Morning Herald (Sydney, 12–13 January 2013) 5. 41 See comment of ASIC’s acting chairman, Greg Tanner, at the time of Moylan’s hoax, that: ‘Our focus is on market integrity, and preserving market integrity, and we’re concerned about threats to market integrity wherever they arise’: quoted in ‘ANZ Hoaxer Facing Jail Despite No Profit Motive’, ABC News (online, 10 January 2013) .

Beyond reason, beyond rules  163 their bodies. Such activism conveys the powerful message that climate change is a physical phenomenon encroaching indiscriminately upon lives, lifestyles and, above all, bodies. Narratives of resistance can leave permanent markings on activist bodies. In 2015, the Liberate Tate group, as part of their ongoing protests against BP’s corporate sponsorship of Tate Britain in London, participated in the public tattooing of 35 activists in the 1840–90 gallery of the museum.42 The numerical tattoos represented the parts per million of carbon dioxide in the atmosphere in each person’s birth year, and the room was purposefully chosen as this period reflected the first steep rise in greenhouse gas emissions.43 For the four women artists who trained themselves in the art of tattooing and administered the tattoos, the permanent markings on the recipients’ skin ‘indicate a commitment to combating climate change, and solidarity with all global struggles to that end’.44 Since then, other climate activists have acquired ‘birthmark tattoos’.45 The birthmarks performance at the Tate, in conjunction with other ‘interventions’ staged without official permission at the museum,46 culminated in the institution’s decision to end BP’s corporate sponsorship from 2017.47 Performances of climate activism fall most clearly into the category of physically risky dark play, and inscribe climate change impacts on bodies most starkly and tragically, when the activist’s body is injured or destroyed. Climate narratives of resistance can result in violence and death. The protesters in Germany’s Hambach Forest, in their campaign to prevent the expansion of a massive open-pit coalmine into the forest, spent up to six years living in treehouses until the police began to demolish the structures in 2018. In September, a freelance journalist who had been documenting the events fell to his death.48 Climate activists have encountered police violence, as was the case at the Standing Rock protests in North Dakota in 2016. Police used water cannons in freezing cold conditions as well as explosive teargas grenades, pepper spray, Mace, Tasers and a sound weapon.49 Some activists sustained serious injuries, with more than 24 hospitalised.50 Twenty-one-year-old Sophia Wilansky, after being hit by an explosive device which protesters claim was a police concussion grenade, nearly 4 2 43 4 4 45 4 6 47 48

49

50

Clare Press, Rise and Resist. How to Change the World (Melbourne University Press, 2018) 92–3. Liberate Tate, ‘Birthmark. Tattooing in the Gallery’ (2017) 22(4) Performance Research 89, 93. Ibid 97. Press (n 42) 93. See, eg, Liberate Tate’s account of its performance Hidden Figures in Liberate Tate, ‘Confronting the Institution in Performance’ (2015) 20(4) Performance Research 78. Liberate Tate (n 43) 89. Katharina Wecker, ‘Stillness and Shock in Hambach Forest after Journalist Dies’, Deutsche Welle (online, 20 September 2018) . Julia Carrie Wong and Sam Levin, ‘Standing Rock Protesters Hold Out against Extraordinary Police Violence’, The Guardian (online, 30 November 2016) . Ibid.

164  Beyond reason, beyond rules lost her left arm and is now unable to use her left hand.51 In November 2018, she commenced a civil rights action against the law enforcement agencies.52 Globally, environmental activists, including climate activists and specifically anti-mining activists, are amongst the human rights defenders confronting various forms of violence and even assassination, as documented in Global Witness Reports,53 by the organisation Front Line Defenders,54 and in the work of the United Nations Special Rapporteur on the Situation of Human Rights Defenders.55 Some climate activists deliberately create a political statement of resistance with their bodies. Members of the British Extinction Rebellion group confronted the House of Commons with their semi-naked bodies during a Brexit debate at the beginning of April 2019, after they stripped to their underwear and glued their hands to the glass of the public gallery. One explained that ‘[b]y undressing in parliament, we are putting ourselves in an incredibly vulnerable position, highlighting the vulnerability that all of us share in the face of environmental and societal breakdown’.56 Activists have resorted to hunger strikes, with perhaps the most famous of these begun by Filipino civil servant Yeb Sano at the United Nations climate talks in 2013. Sano, whose hometown was destroyed by typhoon Haiyan, was joined by 200 others and fasted until the talks concluded.57 In 2018, New York lawyer David Buckel chose to pour gasoline over himself and self-immolate, having written in a letter that his ‘early death by fossil fuel reflects what we are doing to ourselves’.58 Buckel’s act of self-sacrifice received some passing media coverage but was otherwise largely ignored.59 It can be readily dismissed as the irrational response of 51 Melkorka Licea, ‘Pipeline Protester Speaks Out for the First Time after Nearly Losing Her Arm’, New York Post (online, 18 November 2017) . 52 Erin Grady, ‘Sophia Wilansky Files Federal Lawsuit against Vicious North Dakota Police’, Civil Liberties Defense Centre (Post, 21 November 2018) . 53 See, eg, At What Cost? Irresponsible Business and the Murder of Land and Environmental Defenders in 2017 (Report, Global Witness, 24 July 2018) . 54 See Global Analysis 2018 (Report, Front Line Defenders, 2019) . 55 See, eg, Michael Forst, World Report on the Situation of Human Rights Defenders (Report, United Nations Special Rapporteur on the Situation of Human Rights Defenders, December 2018) . 56 Quoted in Jessica Elgot, ‘Semi-Naked Climate Protesters Disrupt Brexit Debate’, The Guardian (online, 2 April 2019) . 57 John Vidal, ‘Yeb Sano Surfaces at the UN Climate Talks and Thanks Supporters of Fast’, The Guardian (online, 20 November 2013) . 58 Quoted in Nathan Englander, ‘A Man Set Himself on Fire. We Barely Noticed’, The New York Times (online, 20 April 2018) . 59 Ibid.

Beyond reason, beyond rules  165 an outlier. On the other hand, to continue living at our breakneck pace, and to remain dedicated to and complicit in the destructive myth of ongoing progress and endless growth, can be viewed as equally self-destructive. Amitav Ghosh, contemplating the vexed question of what is reasonable in the face of climate change, has speculated that it may well be ‘the obsessed monomaniacs who appear to be on the borderline of lunacy’,60 the apparently unreasonable and irrational eccentrics, who are best equipped to adapt to the exigencies of climate change. Other climate activist performances gesture towards what lies ahead. The Queensland-based performance troupe the Farm has now twice61 performed its improvisational climate change piece Tide, a powerful performance that demands immersion both in wild time and in the shifting tidal environment of a sandbar at the mouth of Currumbin River. Dancers Gavin Webber and Joshua Thompson play the role of developers preparing to auction the sandbar and their makeshift office, set up on site, becomes submerged at high tide. In this 48 hour feat of endurance, they enact the plight of the millions of people who are already and will increasingly be affected by sea level rise and flooding in wild time; they contend with uncertain access to food and water, dependency on strangers, intense physical discomfort, and exposure to risk and danger in the form of natural hazards and predators. Tide stands out as activist dark play because of its visceral quality, the real and not insubstantial risks assumed by the performers, and the ongoing requirement for improvisation and adaptation to an unpredictable environment. It builds on an existing tradition of performance art in which artists have deliberately embraced feats of physical hardship, danger and even bodily mutilation.62 Other artists are similarly committed to conveying the impacts of climate change by subjecting their bodies to physical challenges and hardship. In 2015, in Repatriate I, Australian performer Latai Taumoepeau staged her own immersive climate performance as she enacted traditional dance movements from her Tongan heritage in a Perspex tank that slowly filled with water.63 In an earlier climate change piece, I-Land X-isle, she endured a prolonged encounter with freezing water from a giant block of ice that slowly melted on to her suspended body.64 As immersive performance, both Tide and Repatriate I share similarities with a 2009 oceanic event staged by the Maldives Cabinet. The Ministers, led by the now ousted activist President Mohammed Nasheed, met six metres underwater wearing wetsuits and scuba diving gear and communicated through hand

60 Ghosh (n 7) 54. 61 The first performance of Tide in March 2015 was part of the fourth annual Bleach* festival and the second, in April 2018, was a key cultural event in the Commonwealth Games on the Gold Coast. 62 For example, Marina Abramovich, Orlan, Stelarc and Mike Parr. 63 Latai Taumoepeau, Repatriate I, The Stitching (Up) The Sea Suite (Liveworks Festival of Experimental Art, Carriageworks, 22–4 October 2016). 6 4 Latai Taumoepeau, I-Land X-isle (Towards the Morning Sun, Campbelltown Arts Centre, 7 September–21 October 2013).

166  Beyond reason, beyond rules gestures. Documents were ‘sheathed in water-proof plates pinned to the table’.65 This vivid piece of ‘aquatic theatre’,66 which was staged immediately prior to the inconclusive and ill-fated Copenhagen COP 15, was designed to draw attention to the looming fate of the world’s lowest lying nation. The then government declared its intention to make the Maldives carbon neutral. In 2017, however, under the leadership of a new President, the nation changed its strategy. It has abandoned the ‘dream’ of carbon neutrality, encouraged mass tourism and mega developments, and announced its intention to relocate residents of vulnerable islands and geo-engineer artificial islands.67 Performance merges with social experimentation and climate activism in the Refuge project, staged annually over five years in the North Melbourne Town Hall. Artists, disaster management services and members of the Melbourne community join together in preparing for and responding to a sequence of climate change related disasters which mimic the all too real: flood in 2016, heatwave in 2017, pandemic in 2018 and displacement in 2019. In 2020, the final performance, the theme will be urban camp. Refuge constitutes art, simulation, futuristic storytelling and rehearsal for wild time, and thus encompasses far more than traditional performance. The authors of an evaluation report of the 2017 performance commented that ‘[t]he different spheres of knowledge brought together in Refuge – creative, scientific, governmental and logistical – are rarely given such pronounced liberty to interact with each other’.68 Theatrical productions can also fall into the category of climate activism, with one of the most powerful examples being the recent staging of Australian playwright David Finnigan’s Kill Climate Deniers.69 Again this can be viewed as dark play, in its playful manipulation of the concept of theatre, its brazen flouting of theatrical conventions,70 and the merging of genres. Kill Climate Deniers is a medley of music, dance, politics, verbatim theatre, satire, science and black 65 Randeep Ramesh, ‘Maldives Ministers Prepare for Underwater Cabinet Meeting’, The Guardian (online, 8 October 2009) . 6 6 See Benjamin J Richardson, Time and Environmental Law. Telling Nature’s Time (Cambridge University Press, 2017) 115. 67 John Vidal, ‘“We Need Development”: Maldives Switches Focus from Climate Threat to Mass Tourism’, The Guardian (online, 4 March 2017) . 68 Lachlan MacDowall and Suzanne Fraser, Refuge 2017 Evaluation: Heatwave (Report, Research Unit in Public Cultures, University of Melbourne, 2018) 4 . 69 The play was first performed by the Griffin Theatre Company in Sydney in March and April 2018. My references come from the script for this performance: David Finnigan, Kill Climate Deniers (Griffin Theatre Company, 2018). 70 One of the characters, Ile, is instructed by eco-terrorist Catch to point a gun, albeit a fake gun, at a member of the audience and pull the trigger, an instruction which she follows: ibid 110. Despite the visibly fake nature of the clear plastic gun used in the 2018 Griffin Theatre performance, playwright Fleur Kilpatrick has described this moment as ‘one of the most threatening gestures I’ve seen directed at an audience member’ but ‘justified’, because ‘[m]aybe fourth walls have no place in the theatre of climate change’: Fleur Kilpatrick, ‘Whale’ (Conference Paper, Narratives of Climate Change symposium, 6 July 2018).

Beyond reason, beyond rules  167 comedy, in which the playwright interrogates and subverts the ultraconservative strategy of linking terrorism and activism. It is never really clear whether this is a play about activism or itself activism, fact or fiction, agitprop or satire or some genre bending combination. The fast-paced script is interwoven with media, legal and Finnigan’s own commentary on the controversy generated by the play’s provocative title and alleged advocacy of violence and eco-terrorism; Finig, the narrator character, opens the play with the rueful line: ‘First thing I got wrong was the title’.71 The controversy delayed the staging of the play for four years, until the Sydney-based Griffin Theatre company put on a production in early 2018. Prior to that, Finnigan had explored different media and formats, releasing the play as eBook, film script, walking tour of Parliament House, dance party and album.72 Finnigan highlights the appropriation of activist tactics as political ammunition by politicians, who combine ignorance and extreme indifference to the long-term fate of the planet with a cunning survivalism. He captures both the desperation of climate activists, and the political game playing and corruption in climate politics, in the following speech by eco-terrorist Ebb: When it’s a safe debate between rich vested interests, you call that politics. When someone else wants to speak, you call that terror. Well maybe terrorism is just politics without compromise.73 As the play unfolds, verbatim material inserted alongside digressive commentary indicates that the playwright and theatre company had to consider possible legal ramifications of staging the play. This is unusual; generally, activism in the performing arts space is protected from various forms of legal retaliation. This is not, however, the case for law-breaking activists who operate outside this space, even when their activism has theatrical and performative elements. For instance, Tim DeChristopher’s performance as a bidder at the 2008 oil and gas auction was interpreted and dealt with as a criminal act, and this was also the case when Jonathon Moylan borrowed the identity of a major bank. Angelic impersonation and the benign demeanour and craftwork of a group of yellow-garbed grandmothers have not prevented the arrest of rule-breaking Climate Guardians74 or Knitting Nannas.75

71 Finnigan (n 69) 11. 72 Hannah Reich, ‘Kill Climate Deniers: Playwright Takes on Andrew Bolt, Climate Change Sceptics and Breitbart News’, ABC News (online, 13 March 2018) ; Kate Hennessy, ‘Kill Climate Deniers: The Provocative Play That Sneakily Infiltrated Australia’s Parliament House’, The Guardian (online, 21 September 2016) . 73 Finnigan (n 69) 104. 74 Thom Mitchell, ‘Five Climate Angels Arrested for “Watching Over” Santos CSG’, New Matilda (online, 9 February 2016) . 75 Anne Tarasov, ‘Knitting Nannas Arrested at Coal Seam Gas Protest in Northern New South Wales’, ABC News (online, 18 January 2016) .

168  Beyond reason, beyond rules Law-breaking can be viewed as an integral part of climate activism. For many climate activists, as with DeChristopher, prosecution and a courtroom trial generate further opportunities for activism as they seek to argue the defence of necessity and draw upon scientific and other evidence of a looming crisis in support of their actions. For a few, even punitive sentences of imprisonment are welcomed as a physical ordeal that enables them to demonstrate their commitment to transformative change.76 In the next section, I consider the significance of the use of the defence of necessity by climate activists, as a mechanism to bring the climate emergency into the courtroom and highlight the deficiencies of existing legal rules and conventional political channels in this context.

Outside law’s empire In this part, I investigate the links between activist narratives and particular forms of legal and extra-legal climate narratives. In previous chapters, I have discussed some of the legal avenues explored in climate activist litigation. Yet, at present, law is failing to address climate change effectively. There are numerous explanations for this, some of which I have canvassed in earlier chapters. One important underlying reason is that legal stories are designed, as Laura King has argued, to create ‘an orderly moral universe’;77 climate catastrophe and the looming chaos of wild time cannot be contained within such a framework. Here, I consider climate change not in terms of legal rules and their shortcomings and limitations, but as a phenomenon that requires us to think outside and beyond the rule of law itself. Runaway climate change constitutes unprecedented global catastrophe and, as Linda Ross Meyer has written, catastrophes ‘are moments when we confront the limits of our normative world’.78 They generate ‘radical normative disorientation’, plunge us into ‘an alien senseless wasteland’.79 Catastrophe is the space where reason fails.80 Meyer argues that ‘law is constantly colonizing catastrophe’81 but both reason and law fall short in the age of climate disruption. The imminent catastrophe of climate change catapults us into the realm of exceptionalism, where law can

76 Michael Foster, one of the Valve Turners, finds ‘accommodations’ with those who do not share his climate concerns ‘nearly impossible’. In 2018 he was sentenced to three years in prison for his actions and reportedly feels ‘that he is in the right place’: Michelle Nijhuis, ‘“I’m Just More Afraid of Climate Change Than I Am of Prison”’, The New York Times Magazine (13 F ­ ebruary 2018) . 77 Laura King, ‘Narrative, Nuisance and Environmental Law’ (2014) 29(2) Journal of Environmental Law and Litigation 331, 338. 78 Linda Ross Meyer, ‘Catastrophe: Plowing up the Ground of Reason’ in Austin Sarat, Lawrence Douglas and Martha Merill Umphrey (eds), Law and Catastrophe (Stanford University Press, 2007) 19, 20. 79 Ibid 21. 80 Ibid. 81 Ibid.

Beyond reason, beyond rules  169 be set aside. Climate activists in the guise of law-breakers are presenting this argument, couched as the defence of necessity, in an attempt to reframe climate change in the courtroom as a story of urgency and crisis. At the other end of the spectrum, executive arms of government can themselves set aside the rule of law in response to a perceived crisis: the so-called state of exception. Both the defence of necessity in its application to climate activism and climate states of exception share one common feature: they highlight the black holes, the ‘anomic space’,82 in which laws no longer operate in a time of crisis.

The defence of necessity Necessity ‘releases a particular case from the literal application of the norm’83 and the defence of necessity permits people to break the law in order to prevent a greater evil. Thus, the unlawful can be lawful. Acts of property damage can be rendered lawful, acts of corporate defiance can be rendered lawful, even acts of violence can potentially be rendered lawful. This is akin to law-founding violence, which belatedly or retrospectively acquires legitimacy once a shift in political regimes has occurred as part of the new regime’s ‘discourse of self-legitimation;84 it is, however, unlawful at the time of its occurrence. Alternatively, such violence is outside law; Derrida suggests that at the moment of the foundation of each state, no law applies to it.85 Both law-founding violence and the existence of the defence of necessity highlight the permeability of the zealously policed boundaries of law, the boundaries that demarcate what is lawful from what is not. The defence serves both a conservative function, as a legal mechanism for accommodating catastrophe, and a radical one, as a point of rupture for legal norms. Acknowledging the necessity of law-breaking is to concede that the normative framework of law is not all-encompassing. The exceptional cannot always be accommodated within established norms. Thus, the defence recognises a lacuna in law or laws and can be viewed as a stabilising device, preventing more fundamental challenges to the existing structure of norms by conceding that the exceptional sometimes lies outside the capacity of such norms to tame and subsume. In this respect, by placing the exceptional in a recognised category of non-law, law as a normative framework incorporates its antithesis and inoculates itself against the threat of the exceptional in the process described by Roberto Esposito as immunitas.86 When deployed by climate activists, however, the radical dimensions of the defence become clear. Arguments of necessity highlight the subjective and, indeed,

82 Agamben (n 3) 39. 83 Ibid 25. 84 Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, tr Mary Quaintance (1990) 11(5–6) Cardozo Law Review 920, 993. 85 Ibid 1001. 86 Roberto Esposito, Immunitas: the Protection and Negation of Life, tr Zakiya Hanafi (Polity Press, 2011).

170  Beyond reason, beyond rules contingent nature of reason and lawfulness, and the limitations of these concepts in the face of the climate crisis. Returning to the metaphor used by Baz Kershaw in his discussion of trickster activism, I argue here that the defence of necessity provides a possible wormhole into an alternative universe in which reason comes to a standstill, existing rules and norms are inverted, and the concept of lawfulness is redefined. If required to consider the application of the defence, judges and sometimes juries must address the real urgency of the climate crisis and the ambit of reasonable responses in light of this urgency. As previously discussed, the question of what is reasonable in a time of encroaching climate catastrophe is a fraught one. Dipesh Chakrabarty wrote in 2009 that ‘any thought of the way out of our current predicament cannot but refer to the idea of deploying reason in the global, collective life’.87 Rosemary Lyster, in her analysis of law relating to climate disasters, argues that ‘the time has come for the prevalence and resilience of ­“unreason” to be confronted by better reasoning’.88 Yet reason and reasonableness have always been subjective concepts. Mary Christina Wood, whose research into atmospheric public trust litigation inspired the ongoing Children’s Trust lawsuits in the United States, has commented that juries and judges must ‘rethink’ what is reasonable in light of climate change. She has pointed out that ‘many drawn-out political and legal processes that may have been “reasonable” to pursue two decades ago now extend beyond the short window of time left available to act’.89 There is a vigilante flavour to the invocation of necessity, and hence judges strenuously resist the raising of the defence. Necessity, if upheld by the courts in this context, amounts to judicial endorsement of the rights of citizens to define for themselves the parameters of what is lawful and reasonable in responding to the climate change crisis, and to behave accordingly. As upholders of the rule of law, judges are loath to provide such an endorsement. In considering whether anti-war protesters were entitled to use force in their efforts to prevent or hinder the British airforce from committing allegedly unlawful acts of aggression against Iraq,90 Lord Hoffman of the British House of Lords stated that ‘the law will not tolerate vigilantes’.91 He noted that ‘[t]he rule of law requires that disputes over whether action is lawful should be resolved by the courts’.92 The defence operates at, and beyond, the boundaries of law’s empire. In assessing the application of the defence to climate activists, judges must venture into speculation about the imminence and likelihood of wild time and all that it entails. In applying the defence, judges have to acknowledge our uncomfortable

87 Dipesh Chakrabarty, ‘The Climate of History: Four Theses’ (2009) 35 Critical Inquiry 197, 210. 88 Rosemary Lyster, Climate Justice and Disaster Law (Cambridge University Press, 2015) 347. 89 Quoted in Julia Carrie Wong, ‘A Crime Justified by Climate Change? Activists Caught in Legal Showdown’, The Guardian (online, 15 January 2016) . 90 R v Jones [2007] 1 AC 136. 91 Ibid 176. 92 Ibid.

Beyond reason, beyond rules  171 proximity to a climate change midnight and the limitations of law in that unknown, unprecedented, temporal and spatial zone. There are, nevertheless, two instances in which judges have permitted climate activists to argue necessity in their defence and, in the trial of the Kingsnorth Six, the activists were acquitted on that basis.

The Kingsnorth Six The 2007 judicial finding that a statutory defence involving arguments of necessity applied to Greenpeace climate activists in the United Kingdom was a ground-breaking development. It has inspired climate activists in other jurisdictions to attempt to argue the defence in subsequent trials, thus far unsuccessfully. However, in a highly publicised trial of climate activists in 2016, a United States judge permitted the argument of necessity to be presented. The court, the jury and the observers of the trial were thus confronted with the underlying philosophical and moral dilemmas that make the defence of necessity such a powerful and indeed radical strategy for this group. In 2007, six Greenpeace activists climbed the chimney of a power station at Kingsnorth in England. They painted the word ‘Gordon’ on the chimney but failed to complete their intended message of ‘Gordon, bin it’: a reference to ­Gordon Blair’s government’s intention to approve a new coal-fired power plant at the site. As a consequence of the protest, the power station temporarily shut down and the company incurred costs of £30,000 to remove the graffiti. The activists were prosecuted for property damage but, under the relevant United Kingdom Act, it was permissible to destroy or damage property if the accused thereby prevented the commission of a greater property offence.93 The defendants contended that they were acting to protect property around the world threatened by climate change, and furthermore that they had prevented more than $1.5 million of damage to property and human health by stopping the plant’s carbon dioxide emissions for a day.94 Five expert witnesses, including James Hansen and a former president of the Inuit Circumpolar Council, Aqqaluk Lynge, gave evidence about the impacts of climate change. Hansen made clear to members of the jury how their own coastline in Kent would be affected. Lynge described impacts that he had personally witnessed. Graeme Hayes has pointed out that the power of these testimonies lay in the way they connected the ‘global, distant, abstract and immaterial’ to the ‘concrete, material, local and immediate concerns of the citizenry’.95

93 Criminal Damage Act 1971 (UK) s 5. 94 Jonathon Mingle, ‘The Climate Change Defense’, The New York Times (online, 12 December 2008) . 95 Graeme Hayes, ‘Negotiating Proximity: Expert Testimony and Collective Memory in the Trials of Environmental Activists in France and the United Kingdom’ (2013) 35(3) Law and Policy 208, 229.

172  Beyond reason, beyond rules The novel aspect of the case was the nature and magnitude of the alleged threat of climate change: as one commentator put it, ‘what acts might the law permit in fighting a threat of global, even catastrophic, proportions?’ 96 Indeed, the radical implications of their acquittal were recognised by the activists, one of whom stated outside the courtroom: When twelve normal people say that it is legitimate for a direct action group to shut down a coal-fired power station because of the harm it does to our planet then where does that leave government energy policy?97

The Delta Five In the United States trial of the Delta Five in 2016, lawfulness and reasonableness again came under scrutiny. In September 2014, the Delta Five blocked railway tracks used by crude oil trains in Everett, Washington. In their highly publicised trial in Seattle in January, in what was heralded as an unprecedented move in the trials of climate activists in the United States and a ‘breaking [of judicial] ranks’,98 Judge Howard permitted the defence of necessity to be argued. In the United States, this defence has a number of elements. Defendants must establish that their actions were necessary to avoid imminent harm or peril, that the harm which they sought to avert was far greater than any harm which resulted from breaking the law, and that they had no reasonable legal alternative to their actions.99 Evidence on the real and imminent threat posed by the oil trains was presented by a climate science scientist, an oil train safety expert and a doctor. However, it was the last criterion that would prove fatal for the defendants in failing to establish the defence. One possible interpretation offered by climate activists, but thus far not accepted by the courts, is that the defence should apply where more moderate, law-abiding methods traditionally used to respond to other forms of harm no longer suffice or have been demonstrated to be ineffective in addressing the catastrophic harm of climate change. In seeking to demonstrate that there was no reasonable legal alternative to civil disobedience, the Delta Five defendants gave evidence on the futility of their efforts in attempting to influence government policy through legitimate and traditional pathways. Abby Brockway spoke about writing letters and testifying at hearings and argued that ‘it felt like projects were 96 Mingle (n 94). 97 Quoted in ‘Power Station Protesters Cleared’, BBC News (online, 10 September 2008) . 98 Tim DeChristopher, ‘Civil Disobedience Often Leads to Jail. But Now Activists Can Explain Themselves’, The Guardian (online, 13 January 2016) . 9 9 Lance N Long and Ted Hamilton discuss the application of each of the elements of the defence to climate activists in ‘The Climate Necessity Defense: Proof and Judicial Error in Climate Protest Cases’ (2018) 38 Stanford Environmental Law Journal 57, 81–104.

Beyond reason, beyond rules  173 being rubber-stamped no matter what we did. Before I switched to direct action, I felt I worked within the system as much as I could’.100 Thus, she concluded, it ‘felt like we had no other legal alternative’. Another of the defendants, Patrick Mazza, stated that he had ‘earnestly tried to work through the system’, on developing engineering and technical solutions as well as attempting to influence policy change. He went on: I continue to work on practical solutions. I won’t quit. But compared to how fast climate disruption is coming on, solutions are not moving fast enough and we face catastrophic consequences … There came a point where I could no longer sit back and wait for the politicians to act. I had to put my body on the line to demand not talk, but action on a massive scale to rapidly replace fossil fuels.101 After hearing all arguments and evidence, the judge held that the defendants had established three elements of the defence but failed to establish the fourth: that there was no reasonable legal alternative to their actions. In the United States, as the judge noted, there is a considerable body of case law in which the defence of necessity has been held not to apply in relation to indirect civil disobedience. He stated that he ‘was bound by legal precedent, no matter what my personal beliefs may be’.102 His finding was upheld on appeal in May 2018. In the end, the jury found the defendants guilty only of the minor charge of trespass and three members admitted that they would have acquitted the defendants of this offence too had the defence not been disallowed

Climate change and necessity Climate change is creating, demonstrably, a planetary crisis. Judicial concerns about the use of the defence of necessity can be attributed to the radical implications of the defence: when applied in this context, what is reasonable and what is lawful does and must and will shift to accommodate this emergency. To permit lawbreaking in order to prevent a greater harm poses a profound normative dilemma for any legal system. Hugo Tremblay has observed that arguments of ‘necessity may encroach significantly on the normative structure that governs usual legal interactions if normality disappears as a result of climate change’.103 This could well, Tremblay argues, ‘critically diminish the law’s prescriptive value and the resilience of normative frameworks’.104 I have earlier described the defence 00 Quoted in Wong (n 89). 1 101 Patrick Mazza, ‘Why I Moved to Direct Action’, Delta5trial (Blog Post, 18 December 2015) . 102 Quoted in Wong (n 89). 103 Hugo Tremblay, ‘Eco-Terrorists Facing Armageddon: The Defence of Necessity and Legal Normativity in the Context of Environmental Crisis’ (2012–13) 58(2) McGill Law Journal 321, 331. 104 Ibid 363.

174  Beyond reason, beyond rules of necessity as part of what Esposito would refer to as the immunitary character of law; the defence enables the exceptional or the negation of legal norms to be accommodated within the legal system and thus the legal system ‘partially and preventatively incorporates what negates it’.105 Yet it may well be beyond the capacity of this particular immunitary process to absorb and defuse the exceptionalism of climate change within the framework of existing laws. It is, therefore, unsurprising that judges have displayed extreme reluctance to allow climate activists to argue the defence of necessity. DeChristopher, for instance, was not permitted to present the defence,106 with the judge averring an unwillingness ‘to open [his] courtroom to a lengthy hearing on global warming and environmental concerns when this is a case based on simple criminal actions’.107 Nor were the Flood Wall Street 11, who blocked an intersection near Wall Street in New York for several hours in 2014 in an attempt to highlight the contribution made by Wall Street investors to climate change; at their trial, the judge held that climate change, despite its gravity, does not pose the imminent threat of injury required for the application of the defence.108 On the other hand, the judge in the 2014 trial of activists who used their lobster boat to block the delivery of coal to a New England power plant was prepared to hear the defence.109 However, before evidence could be given by James Hansen and Bill McKibben, the District Attorney downgraded the charges on the basis that ­climate change constituted ‘one of the gravest crises our planet has ever faced’.110 This particular opportunity to argue the defence was thus lost. A downgrading of criminal charges against pipeline protesters in Boston to civil infractions also prevented the defence from being argued in a trial in March 2018, although the judge was prepared to find the defendants not responsible for these infractions by reason of necessity.111 The Valve Turners, who turned off valves on the Keystone XL pipeline in October 2016, have also been unsuccessful in their efforts to present the defence in various courts in the United States.112 A Minnesota judge ruled that two Valve Turners could argue the defence113 but then partially reversed this ruling 05 Esposito (n 86) 56. 1 106 Quoted in Emiley Morgan, ‘Judge Rejects DeChristopher’s “Necessity Defense”’, Deseret News (online, 17 November 2009) . 107 Ibid. 108 Rebecca Nathanson, ‘Climate-Change Activists Consider the Necessity Defense’, The New Yorker (11 April 2015) . 109 Joseph E Hamilton, ‘The Climate Made Me Do It’, The Boston Globe (online, 17 August 2014) . 110 Quoted in Katherine Bagley, ‘Judge Cleared “Necessity” Defense for Use in Criminal Trial for First Time’, Inside Climate News (online, 11 September 2014) . 111 See Long and Hamilton (n 99) 68. 112 Ibid 66–8. 113 This ruling was upheld on appeal.

Beyond reason, beyond rules  175 and subsequently dismissed all charges before the defendants could present their case.114 A formidable array of expert witnesses, again including James Hansen and Bill McKibben, were consequently precluded from giving evidence in what would have been a landmark trial.115 In Australia and in the United Kingdom, similar attempts on the part of climate activists to use the defence have failed, with the exception of the use of the equivalent statutory defence by the Kingsnorth Six. In Australia, six protesters who were convicted of trespass on rail tracks at Newcastle Coal Terminal in 2008, and thus contributed to a delay in the export of 20,000 tonnes of coal, appealed their conviction to the District Court on the basis that their otherwise unlawful activities were ‘reasonable, proportionate and performed to avert a greater and imminent danger to life and property’. The judge, however, adopted a conservative approach in holding that the legal activities of mining, exporting and burning of coal should be protected from disruption, and expressed concern about possible anarchic consequences should the appeal be allowed.116 In 2009, an English judge held that the defence of necessity was inadmissible in the trial of 22 defendants who obstructed a coal train; consequently, a number of expert witnesses on climate change impacts were not permitted to give evidence. The defendants sought to argue that their actions were ‘necessary and proportionate to prevent the greater crime of carbon pollution’.117 In their final statement to the jury, they asked the jury members to ‘make a judgment based not just on law, but on justice’.118 In 2010, in the English trial of 20 defendants who had attempted to close down Ratcliffe power station, the judge directed the jury to consider the defence of necessity. Expert witnesses at this trial included leading professors on epidemiology and population health, who provided statistical evidence in relation to climate change related deaths.119 However, the defendants’ argument that they acted out of necessity in an attempt to prevent imminent deaths and serious injuries from the burning of coal and the emission of carbon into the atmosphere failed; they were convicted of conspiracy to commit aggravated trespass.

14 Long and Hamilton (n 99) 67–8. 1 115 Jessica Corbett, ‘“Stunning”: State Court Silences Climate Experts Set to Testify in Valve Turners’ Necessity Defense Trial’, Common Dreams (online, 8 October 2018) . 116 Dale Mills, ‘Hazel Fights On’, City Hub (online, 3 March 2010) . 117 Martin Wainwright, ‘Drax Protesters Found Guilty of Obstructing Coal Train’, The Guardian (online, 4 July 2009) . 118 Martin Wainwright, ‘Jury Retires to Consider Verdict in Drax Hijack Trial’, The Guardian (online, 3 July 2009) . 119 Mike Schwarz, ‘Why Did Ratcliffe Defence Fail Where Kingsnorth Six Succeeded?’, The Guardian (online, 16 December 2010) .

176  Beyond reason, beyond rules The convictions were quashed on appeal but on procedural grounds, with the appellate court stating that it ‘entertain[ed] reservations’ about the use of the defence.120 In 2011, an English judge found six protesters, who had broken into Manchester Airport and formed a ‘human circle’ around a plane, guilty of aggravated trespass and rejected their argument that they were acting out of necessity to prevent the deaths and serious injuries which will result from climate change.121 The Heathrow Thirteen, who chained themselves to a railing on Hearthrow’s northern runway for six hours in 2015, were also found guilty of aggravated trespass despite the argument of necessity, which was supported by the evidence of a professor of climate change science and policy on the climate impacts of aviation. The group narrowly escaped custodial sentences.122

The limitations of democracy Importantly, judges view traditional legitimate avenues for attempting to change government policy as more than adequate for activists pursuing climate mitigation goals. In R v Jones, Lord Hoffman, after recognising the ‘long and honourable history’ of civil disobedience in the United Kingdom,123 went on to make very clear that criminal acts done under this banner could not be justified as reasonable. He held that: In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury.124 Climate change activists disagree with the fundamental assumptions inherent in such judicial statements: namely, that in a democracy the ‘wicked’ problem of climate change can safely be left to the state for peaceful and effective resolution 120 R v Barkshire [2011] EWCA Crim 1885 [8]. 121 ‘Manchester Airport Climate Change Protesters Found Guilty after Judge Says Actions Not Justified’, Manchester Evening News (online, 20 February 2011) . 122 Roz Pidcock, ‘Heathrow 13: Prof Alice Bows-Larkin’s Expert Evidence on Aviation and Climate Change’, Carbon Brief (online, 16 February 2016) . 123 R v Jones [2007] 1 AC 136, 177. 124 Ibid 178–9.

Beyond reason, beyond rules  177 through legislative and judicial processes. In arguing necessity, activists are articulating a profound lack of confidence in governments and policy makers, and in the capacity of traditional democratic procedures and processes to generate an appropriate, timely and reasonable response to the climate crisis. Tim ­DeChristopher has stated that the defence enables activists to present ‘a fully developed legal argument for the responsibility of citizen action in the face of governmental failure’.125 Furthermore, the ongoing resilience of liberal democracies and the rule of law cannot be assumed in light of the all-encompassing challenges posed by climate change. In the next section, I investigate some of the potential implications of the narrative of climate emergency, and climate change itself, for law’s empire. The concept of necessity operates not only to justify individual instances of law-breaking on the part of climate activists but also as rationale for the establishment of a climate state of exception.126

Climate states of exception Activists are not alone in resorting to the rhetoric of emergency in attempting to marshal support for dramatic mitigation initiatives; many scientists are also describing climate change in terms of a global emergency. This particular narrative, however, presents challenges for the rule of law and democratic states. The imposition of states of exception, or the totalitarian regimes increasingly portrayed in climate fiction, can occur as a consequence of the official adoption of a narrative of emergency, even in nation states ostensibly dedicated to the protection of democratic freedoms. In Chapter 4, I explored some of the escalating tensions between the protection of fundamental human rights and climate mitigation strategies. Human rights completely evaporate in a state of exception and accepted Western concepts of human dignity and freedom break down; humans can become what Giorgio Agamben has designated as homo sacer or bare life,127 without any legal protections or status.128 For citizens of the Global North, the twenty-first century ushered in a heightened awareness of the fragility of seemingly sacrosanct rights and liberties. As the war on terror unfolded, draconian counter-terrorism enactments made inroads into various civil and political rights, including our privacy, our freedom of association, our freedom of communication and our freedom of movement. Human rights, as Hilary Charlesworth pointed out, were viewed as ‘some kind of fancy optional extra’ by Western governments keen to implement tough anti-terrorism

125 DeChristopher (n 98). 126 Giorgio Agamben writes that ‘[a] recurrent opinion posits the concept of necessity as the foundation of the state of exception’; Agamben (n 3) 24. 127 Giorgio Agamben, Homo Sacer. Sovereign Power and Bare Life, tr Daniel Heller-Roazen (Stanford University Press, 1998). 128 Agamben wrote that a state of exception ‘radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being’: Agamben (n 3) 3.

178  Beyond reason, beyond rules measures.129 Giorgio Agamben’s writings on the state of exception,130 in which he considered the contemporary relevance of the ideas of German theorist and Nazi supporter Carl Schmitt, generated lively academic, if not political, debate. There was and to some extent continues to be extensive ongoing discussion on the implications of the war on terror for law and liberty131 and on whether, as Agamben argued in 2005, the state of exception has indeed become ‘the dominant paradigm in contemporary politics’.132 The waging of war on the abstract noun of terror,133 and all that it has entailed, effectively deflected attention away from the much larger existential crisis of climate change and what it may well entail for law and liberty and for the rights narrative. As Tom Cohen has written in his reflection on the relevance of Derridean deconstruction to climate change: Keeping in mind that if the ruse of ‘9/11’ was that it pretended that there was a spectral other still to wage war with, a human on human contest, what it concealed from view was the threat without enemy, faceless, ‘anthropogenic’, out of which the disappearance of species, of ‘life as we know it’, becomes calculable.134 In 2015, the anti-libertarian fallout of the war on terror directly impacted on global and popular endeavours to prevent climate change, when COP 21135 was staged in Paris shortly after a sequence of horrific terrorist attacks had taken place. While the official proceedings played out in a heavily policed, secure citadel on the outskirts of Paris, activists, artists, performers and citizens from all over the world seized the opportunity to convey their own narratives of anticapitalism, planetary destruction and popular empowerment. The streets of Paris provided the backdrop to their efforts, but their activities were hampered by the state of emergency declared by the French government in the wake of the

129 Hilary Charlesworth, ‘Human Rights in the Wake of Terrorism’ (2004) 41 Law Society Journal 62, 62. 130 Agamben (n 3). 131 See, eg, Andrew Lynch, Edwina MacDonald and George Williams (eds), Law and Liberty in the War on Terror (The Federation Press, 2007); Michael Head, ‘“Counter-Terrorism” Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’ (2002) 26(3) Melbourne University Law Review 666 and Sarah Joseph, ‘Australian Counter-Terrorism Legislation and the International Human Rights Framework’ (2004) 27(2) University of New South Wales Law Journal 428. 132 Agamben (n 3) 2. 133 Rodney Allan, ‘Terrorism and Truth’ (2002) 27(4) Alternative Law Journal 157, 157. 134 Tom Cohen, ‘The Geomorphic Fold: Anapocalyptics, Changing Climes and “Late” Deconstruction’ (2010) 32(1) The Oxford Literary Review 71, 72 (emphasis in original). 135 The twenty first Conference of the Parties, or COP 21, consisting of those nations which ratified the United Nations Framework Convention on Climate Change 1992, took place in Paris from 30 November to 12 December 2015 and resulted in the Paris Agreement.

Beyond reason, beyond rules  179 terrorist attacks.136 Additional powers to prohibit public demonstrations ‘of a nature which may provoke or sustain disorder’ were conferred upon the State.137 A number of climate activists were placed under house arrest, a decision subsequently upheld by the Conseil d’état.138 Following the ban on street demonstrations, 11,000 pairs of shoes, including a pair belonging to Pope Francis, were assembled in the Place de la République. The collection of empty shoes represented the participants who would otherwise have marched through the streets of Paris on the day before the official proceedings commenced. It provided one of the most poignant images in a spectacle-­ imbued fortnight. Empty shoes have been used as artwork139 and in museums140 to reference the murdered victims in the mass genocides of the Holocaust. The shoes in the Place de la République represented not merely the missing marchers but the dead of the future, and thus made a critical link between climate change and millions of future deaths. The declaration of the Parisian state of emergency, which lasted for almost two years, was a not atypical response of Western states in the ongoing war on terror. Emergencies and exceptional events can trigger the suspension of the rule of law and the onset of a state of exception even in nation states with well-established democratic traditions. States of emergency can also arise in circumstances in which there is no real emergency. At the beginning of 2019, confronted with a recalcitrant Congress, President Trump declared a state of emergency in order to build the controversial Mexican border wall.141 He cited a specious national security crisis as justification. This provoked one of the Democrat members of Congress to suggest a resolution asking Congress to declare a national state of emergency over climate change. He stated that: ‘If Trump can call a national emergency for a fake crisis at the border, then surely Congress should call a national emergency for a REAL crisis’.142

136 Angelique Chrisafis, ‘France under First Nationwide State of Emergency Since 1961’, The Guardian (online, 17 November 2015) . 137 Forst (n 55) 471. 138 Ibid 472. 139 The 2005 artwork, Shoes on the Danube Bank, consists of 60 pairs of metal shoes by the side of the Danube River in Budapest. The sculpture commemorates the Jews killed by the Arrow Cross, the Hungarian Nazi party. 140 A collection of shoes found in concentrations camps is displayed in the United States Holocaust memorial museum. 141 Peter Baker, ‘Trump Declares a National Emergency, and Provokes a Constitutional Clash’, The New York Times (online, 15 February 2019) . 142 Quoted in Chris D’Angelo, ‘Democrats Look to Declare National Emergency over Climate Change, Not a “Fake Crisis”’, Huffington Post (online, 16 February 2019) .

180  Beyond reason, beyond rules Western nations have had no compunction in declaring that we are at war on the abstraction of terror but there has been no similar use of militaristic terminology by governments in justifying their perfunctory efforts to contend with climate change. Activists, on the other hand, have freely resorted to the metaphor of warfare. In 2016, Bill McKibben wrote that: In the North this summer, a devastating offensive is underway. Enemy forces have seized huge swaths of territory … Day after day, week after week, saboteurs behind our lines are unleashing a series of brilliant and overwhelming attacks … World War III is well and truly underway. And we are losing.143 In 2015, Al Gore likened the urgent need to fight against climate change to military efforts to defeat fascism in World War II.144 James Lovelock145 and ­Stephen Hawking146 have both referred to the need for a war-like response to climate change, as have authors David Spratt and Philip Sutton.147 More recently, Justice François Kunc of the New South Wales Supreme Court has stated that: ‘It is no longer either difficult or alarmist to imagine a day when, in extremis, the defence, external affairs and immigration powers of the Commonwealth are invoked to support measures not seen since World War II to deal with the social, political, economic and physical effects of climate change’.148 Climate activists, including those in the recently established Extinction Rebellion movement, are calling for the declaration of a state of climate emergency. On 31 October 2018, a group called Rising Up UK launched a campaign of mass civil disobedience called Extinction Rebellion.149 In November, on ‘Rebellion Day’, thousands of activists shut down five London bridges. They glued themselves to buildings and blocked roads.150 The organisation has rapidly spread 143 Bill McKibben, ‘A World at War’, The New Republic (15 August 2016) . 144 Fram Dinshaw, ‘Climate Change Opened “Gates of Hell,” in Syria: Al Gore’, National Observer (online, 9 July 2015) . 145 James Lovelock, The Revenge of Gaia. Why the Earth is Fighting Back – And How We Can Still Save Humanity (Penguin Books, 2007) 17, 191, 196. 146 Quoted in Mike Hulme, ‘The Conquering of Climate: Discourses of Fear and their Dissolution’ (2008) 174(1) The Geographical Journal 5, 11. 147 David Spratt and Philip Sutton, Climate Code Red. The Case for Emergency Action (Scribe, 2008) 158. 148 François Kunc, ‘Climate Change May Pose Threat to Rule of Law, Says Supreme Court Judge Francois Kunc’, The Australian Financial Review (online, 11 October 2018) . 149 Matthew Taylor, ‘15 Environmental Protesters Arrested at Civil Disobedience Campaign in London’, The Guardian (online, 1 November 2018) . 150 Matthew Taylor and Damien Gayle, ‘Dozens Arrested after Climate Protest Blocks Five ­L ondon Bridges’, The Guardian (online, 18 November 2018) .

Beyond reason, beyond rules  181 world-wide, with chapters starting up in 35 countries before the year ended.151 Individual and group acts of civil disobedience have continued, building up to a ‘full-scale international rebellion’ in April 2019. In response to a plethora of such demands, there have been numerous official declarations of a state of climate emergency at a local level.152 Although Extinction Rebellion is calling for the establishment of democratic Citizens’ Assemblies to address the climate emergency, there are many historical antecedents for totalitarian rather than democratic responses to real or inflated emergencies. Furthermore, writers of climate fiction have envisaged the dramatic curtailment of individual rights and freedoms as a future consequence of the climate crisis; we frequently find fictitious depictions of a hegemonic totalitarianism.153 E Ann Kaplan describes these authoritarian regimes ‘devoid of political subjects’ as pretrauma political dystopias,154 to be contrasted with the lawless dystopias155 that also feature in climate fiction. One such authoritarian regime is depicted, for example, in The Carhullan Army. Following a Civil Reorganisation in the United Kingdom, people have been stripped of their rights and ‘nothing could be done to stop it’.156 Elections have been suspended and a military police force created.157 The rule of law has disintegrated: ‘[t]o be detained meant entering an unknown system’158 and unsuccessful revolutionaries face execution without trials.159 There is no political transparency or accountability and, in fact, it is possible that the government has ‘vanished altogether, and in its place something else exist[s]’.160 The strict controls imposed on the populace include the control and supervision of women’s reproductive systems. All women are fitted with compulsory contraceptive devices and the Authority undertakes humiliating random checks to ensure that they remain in place.161 To be part of this system is to be its ‘sterile subject’.162

151 Jonathon Watts, ‘Extinction Rebellion Goes Global in Run-Up To Week of International Civil Disobedience’, The Guardian (online, 10 December 2018) . 152 ‘Climate Emergency Declarations in 423 Councils Cover 36 Million Citizens’, Climate Emergency Declaration (Post, 27 March 2019) . 153 Adam Trexler, Anthropocene Fictions. The Novel in a Time of Climate Change (University of Virginia Press, 2015) 134. 154 E Ann Kaplan, Climate Trauma. Foreseeing The Future in Dystopian Film and Fiction (Rutgers University Press, 2016) 19. 155 Ibid 18. 156 Sarah Hall, The Carhullan Army (Faber and Faber, 2007) 26. 157 Ibid. 158 Ibid 38. 159 Ibid 185. 160 Ibid 39. 161 Ibid 27. 162 Ibid 41.

182  Beyond reason, beyond rules The control of women’s reproductive systems also features in the repressive authoritarian regime, the Republic of Gilead, depicted in the popular television series The Handmaid’s Tale. The series is not generally categorised as climate fiction and indeed Margaret Atwood’s 1985 novel,163 on which the series is based, contains no mention of climate change. Nevertheless, an unexpected reference occurs midway through the first season when Serena Joy, wife to one of the all-powerful Commanders, boasts to a visiting Mexican trade delegation of the 78% reduction in carbon emissions that Gilead has achieved over three years.164 Radical lifestyle adjustments have no doubt played a role in this. Much of the population is subject to restrictions on their freedom of movement, car travel is confined to the privileged and their employees, borders are rarely crossed, and only basic necessities are available for purchase on shopping expeditions. The fashion industry has collapsed with the introduction of colour-coded uniforms for women. Electrical and electronic appliances have all but vanished from households. Furthermore, in light of a fertility crisis, the ongoing brutal execution of many dissidents and nonconformists, and the dispatching of the rest to the Colonies for a more protracted demise, population growth is no longer an issue. There is an unsettling correlation here between totalitarianism and extreme human rights violations, and exemplary climate mitigation outcomes. Yet it is not only novelists and screenwriters who have envisaged future authoritarian regimes as a possible political response to the climate emergency. In their foray into speculative fiction, historians of science Naomi Oreskes and Erik M Conway consider the events of the Period of the Penumbra, 1988 to 2093, from the perspective of a future historian. The authors similarly hypothesise that ‘authoritarian societies will be more able to handle catastrophic climate change than free ones’.165 Their fictitious historian, contemplating the contribution of market fundamentalism to the Great Collapse, identifies as ‘the ultimate paradox’ the fact that ‘neoliberalism, meant to ensure individual freedom above all, led eventually to a situation that necessitated large-scale government intervention’.166 In his account of an unfolding crisis, the powerful, centralised government of China was able to respond far more effectively than democratic Western governments.167 Scientist Tim Flannery has also engaged in futuristic speculation, raising the possibility of a global climate state of exception as resources dwindle and the planet becomes increasingly inhospitable. In 2005, he postulated that a ‘carbon dictatorship’ is all too possible in the not so distant future, if humanity manages to reduce emissions sufficiently ‘to avoid outright disaster’ but the climate still hovers ‘on a knife-edge’. This is a more positive scenario than one in which

63 Margaret Atwood, The Handmaid’s Tale (McClelland and Steward, 1985). 1 164 ‘A Woman’s Place’, The Handmaid’s Tale (MGM Television, 2017) 0:14:52. 165 Naomi Oreskes and Erik M Conway, The Collapse of Western Civilization. A View from the Future (Columbia University Press, 2014) 70. 166 Ibid 48. 167 Ibid 51.

Beyond reason, beyond rules  183 runaway climate change ‘destabilises[s] our global civilisation’ and plunges us into ‘a protracted Dark Ages’.168 He described his hypothetical ‘Earth Commission for Thermostatic Control’ as ‘an Orwellian-style world government with its own currency, army and control over every person and every inch of our planet’.169 In fictitious and other iterations of climate states of exception, we find a point of intersection between activist narratives and extra-legal narratives, as common narratives of urgency and emergency again, as with the defence of necessity, potentially take us well outside law’s empire. It is paradoxical to find a judge, a committed upholder of the rule of law, anticipating the demise of this institution but Justice Kunc, who sits on the New South Wales Supreme Court, has speculated that ‘inadequately mitigated climate change could undo our social order and the rule of law itself’.170

Conclusion Law demands reasonable conduct and compliance with its entrenched strictures. Yet, as I have previously demonstrated, it is difficult and perhaps impossible to respond effectively to the trickster of climate change through existing legal doctrines and systems. In particular, legal and social standards of what is reasonable require re-evaluation in a time of accelerating climate disruption. The dark play of certain forms of climate activism can lead us into a terrain of uncertainty and displace rules, codes of conduct and seemingly commonplace assumptions. The primary function of such activism is disruption and, in this, activist dark play mirrors the dark play of climate change itself. Activist dark play that spills over into the courtroom also compels us to consider the limitations of legal rules in the era of climate change. When the defence of necessity is successfully raised, judges and juries must reconcile the activist narrative of climate change as global emergency with these rules and decide whether the rules remain authoritative against this backdrop. Climate change poses a challenge for law’s empire but so does the narrative of climate change as emergency. This narrative has the potential to usher in a climate state of exception, with devastating implications for rights and freedoms. One of the many paradoxes of the Anthropocene is that the geological forces unleashed by the anthropos may ultimately strip him of the individual protections and safeguards so zealously fought for during the era of human rights and seemingly endless growth. The individual as rights bearer has no role to play in wild time. In light of this, the voluntary curtailment of certain rights and alteration of currently accepted modes of conduct, in the interests of climate mitigation, can be viewed as timely precautionary measures to safeguard far more fundamental rights in the future. 168 Tim Flannery, The Weather Makers. The History and Future Impact of Climate Change (Text Publishing, 2005) 291. 169 Ibid 294. 170 Kunc (n 148).

7 The sense of an ending1

In previous chapters, I have identified some of the dominant, emerging and evolving climate narratives in the three fields of law, fiction and activism, and considered case studies from each field in which these narratives are developed. In this final chapter, I return to the questions with which I began this interdisciplinary investigation and make some concluding comments on climate narratives as catalyst, as mirror and as script.

Climate narrative as catalyst In both fiction and activism, predictions, depictions and enactments of wild time have played and are playing a key role. Such portrayals can serve to combat the myopia that leads us to prioritise short-term concerns and our present needs over the plight of future generations. It is difficult, however, to gauge the extent to which futuristic narratives are influencing public opinion and policy. The increasing preparedness of climate scientists to engage with such narrative has certainly galvanised public debate. However, for a variety of reasons previously canvassed in Chapter 5, fictitious speculative narratives tend to be less effective as catalyst. These reasons include the fact that they carry less authority than scientific or legal narratives and that, furthermore, bypassing the present critical timeframe for taking action and transporting viewers and readers directly into an unpalatable future of runaway climate change may prove counter-productive in terms of garnering support for current mitigation initiatives. To appropriate (with my own modifications) the title of Roy Scranton’s recent book,2 if we are already doomed, then so what? Activist narratives are intended to bring about change, whether they constitute enacted narratives of wild time as in the Australian performances of Refuge

1 This chapter title comes from Frank Kermode’s book on apocalyptic fiction: The Sense of an Ending. Studies in the Theory of Fiction (Oxford University Press, 1967). Karin Hopker also makes use of the same title in a book chapter: Karin Hopker, ‘A Sense of an Ending – Risk, ­Catastrophe and Precarious Humanity in Margaret Atwood’s Oryx and Crake’ in Sylvia Mayer and Alexa Weik Von Mossner (eds), The Anticipation of Catastrophe. Environmental Risk in North ­American Literature and Culture (Universitatsverlag Winter, 2014) 161. 2 Roy Scranton, We’re Doomed. Now What? (Soho Press, 2018).

The sense of an ending  185 and Tide,3 narratives of youth empowerment and intergenerational reproach expressed most powerfully in the ongoing school climate strikes, narratives of opposition and obdurate resistance exemplified in the ongoing and escalating civil disobedience of the Extinction Rebellion, and/or trickster narratives disrupting entrenched habits, beliefs and institutional and other systems. This is not necessarily an unrealistic aspiration. Brad Werner, a complex systems analyst, became somewhat notorious in 2012 when he delivered a paper entitled ‘Is Earth F**ked?’ at an American Geophysical Union conference; in this paper, on the basis of his modelling of the coupled human-environmental system, he suggested that environmental activism was the only option for preventing the catastrophic end results of runaway climate change. His modelling indicated that existing forms of environmental management constitute part of capitalist cultural dynamics. On the other hand, activism or, as he termed it, resistance involves the adoption of a certain set of dynamics antithetical to capitalist culture. According to Werner, ‘future sustainability … may well depend on the strength of resistance and the ways that society acts to suppress that resistance’.4 Activist narratives can indeed put pressure upon established political systems to instigate change. One key example can be found in the Green New Deal, an ambitious proposal for large-scale social and economic change introduced into the United States Congress by Democrat members Alexandra Ocasio-Cortez and Edward J Markey and originating in the American youth climate activist movement. The clear tensions between the urgency felt by activists and emphasised by climate scientists, and the functioning of existing political structures, lend force to the argument that no less than a complete transformation of social and political systems is required to address climate change. The disparate narratives encapsulated in climate time and accepted notions of political time can create a stalemate, as is apparent in the videoed confrontation between youth climate activists and Senator Diane Feinstein in February 2019. While the young activists expressed the view that the catastrophic consequences of climate change and the urgency of effective mitigation clearly outweigh any financial and strategic considerations, Senator Feinstein attempted to explain to them the nature of political game-playing: ‘I’ve been in the Senate for over a quarter of a century and I know what can pass and I know what can’t pass’.5 Ocasio-Cortez subsequently commented on twitter that ‘climate delayers’ are as implicated in future climate catastrophes as climate deniers.6

3 Discussed in Chapter 6. 4 Brad Werner, ‘Is Earth F**ked? Dynamical Futility of Global Environmental Management and Possibilities for Sustainability via Direct Action Activism’ (Conference Paper, American Geophysical Union Fall Meeting, 2–7 December 2012). 5 Quoted in Lisa Friedman, ‘Dianne Feinstein Lectures Children Who Want Green New Deal, Portraying It as Untenable’, The New York Times (online, 22 February 2019) . 6 Mark Hertsgaard, ‘On March 15, The Climate Kids Are Coming’ (4 March 2019) The Nation .

186  The sense of an ending As discussed in Chapters 2 and 3, climate time and legal time are also, for the most part, at cross-purposes in climate litigation. Activist litigants are reshaping and repurposing legal doctrines devised for quite different purposes in a time of climatic stability, in an attempt to create transformative legal climate narratives. Given the key role of the courts as one of the arms of government, such narratives could have a very powerful political impact if adopted by the judiciary. The effectiveness of activist litigation is, however, reduced by the seemingly limitless potential for procedural delays in legal systems and the obstructionist tactics adopted by well-resourced corporate and government defendants. The piecemeal nature of much climate litigation also diminishes its political impact, even when the narratives put forward by activist litigants are accepted by the courts. For instance, climate time was acknowledged as a primary consideration by Chief Justice Brian Preston in his ground-breaking judgment in the Rocky Hill mine case7 but this will not necessarily be repeated in future Australian anti-coalmine litigation. It is arguable that activist narratives have the most disruptive impact in the courtroom when activists prosecuted for criminal offences are permitted to argue the defence of necessity. Defendants can thus highlight the multiple shortcomings in the legal and policy responses to the climate crisis, and the critical nature of the climate crisis. Furthermore, by contesting orthodox understandings of lawfulness and legitimacy, they are challenging the normative order underlying existing legal frameworks. The narrative of necessity can usher in radical change but there is considerable judicial resistance to hearing this defence. Importantly, any transformation of political and other systems as a response to the activist narrative of climate emergency or, alternatively, as a response to the widespread havoc wreaked by the trickster of climate change itself, will not necessarily accommodate the individual rights and freedoms espoused in international human rights law.

Climate narrative as mirror It is difficult and, in fact, impossible to create coherence when it comes to the multiplicity of climate change narratives, to synthesise and organise them into some sort of master or grand narrative. Despite the multi-disciplinarity, diversity and volume of climate narratives, some common themes and motifs emerge across disparate fields. In this regard climate change narratives act as a mirror, reflecting back to us our contemporary concerns and fears surrounding climate change and providing insights into ‘the complexity of climate change as a cultural phenomenon’.8

7 Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, discussed in Chapter 2. 8 Adeline Johns-Putra, ‘Climate Change in Literature and Literary Studies: From Cli-fi, Climate Change Theater and Ecopoetry to Ecocriticism and Climate Change Criticism’ (2016) 7(2) WIREs Climate Change 266, 267.

The sense of an ending  187 First, time surfaces repeatedly as a central preoccupation. In the first chapter, I outlined some different disciplinary and cultural perspectives on time and contemplated the challenge which climate change poses for linear, progressive time. I also introduced the concept of wild time: that future timescape in which the uncanny prevails and familiar structures, institutions and landscapes have been irrevocably altered by runaway climate change. Time is a central feature of scientific climate narratives, which are largely premised around the predictions of future modelling. Some scientists have considered what wild time will look like but most do not engage in speculative activities; scientific reticence is a very real issue in the development of climate change narratives in this field. In climate fiction, on the other hand, we find different perspectives on time, including portrayals of generational time, deep time and time as trickster. In particular, climate fiction contains many potent imaginings of wild time. Activists conceive of time as both strategic weapon and enemy. Climate time frames the rapidly diminishing opportunity for global action; once this timeframe has lapsed, humanity faces an increasingly unpleasant future on Hothouse Earth. Motivated by these fears and referencing such a climate-changed future, activists focus on our current, critical point in time. This is, for instance, apparent in the name of youth climate activist group Zero Hour. Time also features in legal climate narratives, as Chris Hilson has pointed out. He has identified three main ways in which time is presented in climate lawsuits: as generational timeframes, as scientific timeframes and as policy timeframes.9 There is, however, a divergence between judicial views of time and the narratives conveyed by activist litigants. While some judges have incorporated climate time as a factor in their reasoning,10 most are constrained by backward-­looking, conservative precedents and procedures that resist change. Judges tend to disparage arguments premised on hypothetical future consequences and invoke the political question doctrine in order to avoid future-based decision-making. Nevertheless, they must increasingly concede that existing legal precedents are of little value in a rapidly changing climate. Our uncertainty and qualms about the future, and our adult sense of guilt and responsibility for the climate crisis, crystallise in the central figure of the child. The child, emblematic of these future fears, has taken on an important role in some climate litigation and also appears in a variety of different manifestations in climate fiction. Children and young people, in the global movement spearheaded by Swedish teenager Greta Thunberg, are increasingly turning to activism, taking political and business leaders and the adult generation to task for failing to

9 Chris Hilson, ‘Framing Time in Climate Change Litigation’ Onati Socio-Legal Series (forthcoming). 10 For instance, Chief Justice Preston’s judgment in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, discussed in Chapter 2, and Judge Hollis Hill’s reasoning in Foster v Washington Department of Ecology (Wash Sup Court, 14-2-25295-1 SEA), Transcript of ­Proceedings, 29 April 2016, 20, discussed in Chapter 3.

188  The sense of an ending protect them from the ravages of runaway climate change and thereby gifting them a perilous and uncertain future. Another prevailing motif is that of the trickster. The trickster has a particular relevance for wild time given his association with chaos and anti-structure, and his qualities of resilience and shape shifting; he also shares qualities with the phenomenon of climate change itself, as Robin Kundis Craig contends.11 It is therefore unsurprising that the trickster surfaces in various narratives of climate litigation, climate fiction and climate activism, and in multiple guises including that of corporate trickster, rule-bending activist and fictional anti-hero. Finally, the nonhuman turn, as an emerging theme for wild time and hence for climate change narratives, is apparent across forums and disciplines. Legal narratives are emerging which cautiously incorporate aspects of this phenomenon. The role played by cyborgs and nonhuman animals in the wild time of climate fiction provides both provocative and frightening insights into the broader implications of climate change. Climate activism and its narratives intersect with the exploits and narratives of animal rights activists and with the Rights of Nature movement, as illustrated in the 2018 Colombian Future Generations case to protect the Amazon.12

Climate narrative as script Irrespective of its function as a catalyst for climate action, narrative can potentially play a central role in climate change adaptation. It can assist us in imagining the wild time of a climate-changed future and in considering how we might navigate our way through this unknown territory. Kate Rigby argues that: In a perilously warming world, the kinds of stories that we tell about ourselves and our relations with one another, as well as with nonhuman others and our volatile environment, will shape how we prepare for, respond to, and recover from increasingly frequent and, for the communities affected, frequently unfamiliar forms of eco-catastrophe.13 From this perspective, narratives can guide us through the dangerous times ahead, providing suggestions for coping with climate disruption, preserving community and passing down knowledge, life skills and cultural assets. Yet, despite the diversity and abundance of climate and, indeed, all narratives, runaway climate change threatens to cut through them in vast swathes. As narratives are lost or destroyed, their potential utility as script vanishes. 11 Robin Kundis Craig, ‘Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking’ (2016) 33(3) Pace Environmental Law Journal 351. 12 See ‘Climate Change and Future Generations Lawsuit in Colombia: Key Excerpts from the Supreme Court Decision’, DeJusticia (Post, 13 April 2018) , discussed in Chapters 3 and 4. 13 Kate Rigby, Dancing with Disaster. Environmental Histories, Narratives, and Ethics for Perilous Times (University of Virginia Press, 2015) 2.

The sense of an ending  189 Chakrabarty makes reference to the ‘deep history’ of our species, which transcends recorded history and certainly predates narrative.14 Will our deep history encompass a future without narrative? It may be conceptually challenging or even impossible to imagine ‘the world without us’;15 it is equally challenging to imagine a planetary future with us, or possibly with some posthuman version of us, but without narrative. In the following section, drawing mainly on the futuristic visions in climate fiction, I consider the longevity of different narrative forms in wild time.

Enduring narratives An ambitious, imaginative and optimistic extrapolation into the literary narratives of the future underlies the Future Library project, launched by artist Katie Paterson in 2014. That year, Paterson planted 1,000 trees in Nordmarka, outside Oslo, and selected Margaret Atwood as the first writer in the project. Every subsequent year, a different writer is invited by the Future Library Trust to provide a manuscript, which is stored unread in a room in a public library in Oslo. The room also contains a printing press. The artist’s intention is that, in 2114, the trees will be milled to produce paper, on which will be printed for the first time the cumulative contents of the secret library. Atwood has described the process of participating in the project as ‘delicious’.16 Novelist David Mitchell, who contributed a manuscript in 2016, believes the project to be ‘a vote of confidence that, despite the catastrophist shadows under which we live, the future will still be a brightish place willing and able to complete an artistic endeavour begun by long-dead people a century ago’.17 Yet it is easy to imagine futuristic scenarios for which this vote of confidence is misplaced. The father in The Road, finding the ‘charred ruins’18 of a library with ‘blackened books … in pools of water’, reflects that ‘the space which these things occupied was itself an expectation’.19 In the blockbuster film, The Day After Tomorrow, 20 after the slowing of the Gulf Stream precipitates the dramatic onset of extreme climatic changes across the northern hemisphere, survivors in New York’s public library burn books to generate warmth. This scene foreshad 14 Dipesh Chakrabarty, ‘The Climate of History: Four Theses’ (2009) 35 Critical Inquiry 197, 212. 15 Ibid 221. Chakrabarty references Alan Weisman’s ‘thought experiment’ in imagining a world without humanity in his book The World without Us (Virgin, 2007). Mireille Juchau has used the same title in her climate fiction novel The World without Us (Bloomsbury, 2015). 16 Quoted in Alison Flood, ‘Margaret Atwood’s New Work Will Remain Unseen for a Century’, The Guardian (online, 5 September 2014) . 17 Quoted in Alison Flood, ‘Han Kang to Bury Next Book for Almost 100 Years in Norwegian Forest’, The Guardian (online, 31 August 2018) . 18 Cormac McCarthy, The Road (Picador, 2006) 157. 19 Ibid 158. 20 The Day After Tomorrow (Twentieth Century Fox, 2004).

190  The sense of an ending ows the devaluing of our painstakingly accumulated cultural texts when survival becomes the primary concern in a hostile, climate-changed environment. In Atwood’s published work, a bleak view of wild time emerges; nevertheless, she makes clear the tenacity of the human (and posthuman) desire for narrative in the post-apocalyptic futurescape of the MaddAddam trilogy. In Oryx and Crake, Jimmy constructs a creation story for the posthuman Crakers; 21 by way of contrast with Crake, the scientific genius, Jimmy’s own ‘world-designing capacities reside in narrative and imagination’.22 Later in the trilogy, when Jimmy is incapacitated by his injuries, Toby assumes the role of storyteller with its attendant rituals.23 The Crakers crave stories and actively participate in the storytelling process: they ‘prompt, they interrupt, they fill in the parts she’s missed’.24 The Crakers’ creation story is embellished as events occur. Most of the stories in MaddAddam, however, are stories of Zeb’s life and misadventures, which appear to be a source of endless fascination for Toby’s posthuman audience. Oral histories do not suffice for Toby. She is compelled to keep a daily journal and even record ‘the ways and sayings’ of the God’s Gardeners, ‘for the future; for generations yet unborn’, although she is fully aware that those generations may not exist and if they do exist, may not be able to read.25 She speculates on what to leave in the form of a cultural legacy: ‘What kind of story – what kind of history will be of any use at all, to people she can’t know will exist, in the future she can’t foresee?’26 Notwithstanding a ‘radical insecurity of addressee’, there is, as Karin Hopker has observed, a seeming ‘urgency of storytelling’ in the posthuman narrative of the trilogy.27 Toby teaches Blackbeard and, by extension, the rest of the Crakers how to read and write, 28 although she fears that she might thus have ‘ruined them’.29 She also teaches Blackbeard how to preserve ‘the Book’ containing the stories told to the Crakers, and how to rewrite it as required, ‘[s]o that it would always be there for [them] to read’.30 By the end of the trilogy, Blackbeard has assumed the role of storyteller and custodian of ‘the Book’.31 In the twenty-first century, online narratives abound. Such narratives, many of which are already ephemeral in nature, may not endure in wild time. In the young adult novel Exodus, the ‘vast datascape’ of the internet has been rechristened ‘the Weave’ but consists of ‘rotting heaps of electronic rubbish’ that have

21 22 23 2 4 25 26 27 28 29 30 31

Margaret Atwood, Oryx and Crake (Bloomsbury, 2003) 102–3 (‘Oryx and Crake’). Hopker (n 1) 174. Margaret Atwood, MaddAddam (Bloomsbury, 2013) 38 (‘MaddAddam’). Ibid 45. Ibid 135. Ibid 203. Hopker (n 1) 177. Atwood, MaddAddam (n 23) 202–3. Ibid 204. Ibid 386. Ibid 385.

The sense of an ending  191 mutated into ‘weird Weave-creatures born of decay and chaos’.32 In its place, the technology-reliant New World sky cities exchange ideas and inventions on the Noos, the ‘global Supermind’ with ‘an endless pattern of connections’.33 Nevertheless, old narratives from the Weave can be utilised for radical new purposes. Fox, rebellious grandson of one of the founders of the New World cities, uses a ‘ghost parade’ of twentieth-century popular and political icons from the Weave34 to create a virus which ‘crash[es]’ his city out of the Noos and thus enables the escape of Mara and her fellow refugees.35 Some writers envisage a continuing role for literary classics in wild time. In Emily St John Mandel’s Station Eleven, 20 years after the onset of a global pandemic, a Travelling Symphony moves by foot and horseback between the small settlements of survivors, performing both music and Shakespearean plays,36 ‘[b]ecause survival is insufficient’.37 In Mara and Dann. An Adventure, in that far distant time as the next Ice Age retreats, some classic narratives linger on in a mutated format.38 Books have ‘crumbled into dust’39 but these stories are retained as part of an oral tradition by Memories, humans trained to remember.40 Songs also form part of this oral tradition.41 Artefacts from ‘the ancient civilisations of the Warm Interregnum’ are painstakingly preserved in a museum.42 In Station Eleven, lowbrow science fiction comics as well as Shakespeare’s plays persist as valued narrative forms.43 David Finnigan provides a variation on the comic book theme in his play about eco-terrorism, attributing to the Prime Minister the idea of creating and hiding copies of ‘a handbook for how to restart civilisation’ in ‘comic-book style’, with ‘descriptions of how to farm, grow crops, construct pottery wheels, make fire’.44 Thus, after the turmoil of wild time, survivors can recreate civilisation. James Lovelock has made a similar suggestion, proposing that we ‘write a guidebook for our survivors to help them rebuild civilization without repeating too many of our mistakes’.45 He has recommended the use of ‘durable paper with long-lasting print’46 as the best way to ensure the longevity of such a guidebook.

32 33 3 4 35 36 37 38 39 40 41 4 2 43 4 4 45

Julie Bertagna, Exodus (Walker and Co, 2009) 33–4. Ibid 245. Ibid 286. Ibid 293. Emily St John Mandel, Station Eleven (Picador, 2014) 37. Ibid 58. Doris Lessing, Mara and Dann. An Adventure (Flamingo, 1999) 166–7. Ibid 168. Ibid 145. Ibid 387–8. Ibid 378. Mandel (n 36) 42. David Finnigan, Kill Climate Deniers (Griffin Theatre Company, 2018) 132. James Lovelock, The Revenge of Gaia. Why the Earth Is Fighting Back – And How We Can Still Save Humanity (Penguin Books, 2007) 200. 6 Ibid 203. 4

192  The sense of an ending Playwright Anne Washburn envisages the ongoing adaptation of elements of contemporary popular culture in wild time. In her play Mr Burns. A Post-Electric Play,47 the storylines and characters from the popular television series The Simpsons repeatedly resurface, shifting in format and significance as performers move further away in time from the initial horrors of post-apocalyptic America. The final act is a musical operatic performance in which Bart Simpson as lone defiant hero defeats the villain Mr Burns. Given the apparently irreconcilable nature of existing legal rules and the dark play of climate change, and the challenge which climate change poses for law’s empire, it would be surprising if legal narratives continue to play a role in wild time. Law in its current manifestation does not, and apparently cannot, think past midnight. Nevertheless, the entire text of The Carhullan Army 48 purports to be a quasi-legal narrative: the partial transcript49 of Sister’s statement when imprisoned in the Lancaster holding dock, presumably prior to her execution for her part in the rebellion against the ruling body. She tells her story as instructed by the leader of the Carhullan Army, Jackie, as a form of bearing witness: ‘Make them understand what we did and who we were’.50 Sister concludes: ‘This is my statement. Let it serve as a confession if one is still required’.51 Rather than reproducing, with or without adaptations, the existing texts of contemporary civilisation, inhabitants of wild time may develop their own stories. Mad Max: Fury Road52 contains a cryptic reference to the First History Man as a chronicler of, and commentator on, the savagery, lawlessness and ongoing battle for survival in post-apocalyptic ‘wastelands’.53 An earlier Mad Max film, Mad Max Beyond Thunderdome,54 highlights the importance of oral narratives, in the form of the ‘tell’ or oral history of a lost tribe of children. Thus far, my discussion has centred on the preservation of narrative as cultural legacy. There is also a pressing need for enduring narratives that warn our distant descendants, should they exist, about places of extreme, man-made toxicity. This issue is canvassed in the 2010 film, Into Eternity,55 in which the filmmaker explores ways to convey to future generations the dangers of a Finnish underground nuclear waste repository.56 Even today, mainstream narratives

47 Anne Washburn, Mr Burns. A Post-Electric Play (Oberon Books, 2014). 48 Sarah Hall, The Carhullan Army (Faber and Faber, 2007). 49 Each section of the book, which proceeds with a linear chronology as Sister recounts her journey to the Carhullan female community, her harsh integration into the community and the preparations for revolution, is preceded by a note stating whether the file was complete or partially corrupted. 50 Hall (n 48) 207. 51 Ibid. 52 Mad Max: Fury Road (Warner Bros, 2015). 53 The following quotation, attributed to ‘the First History Man’, appears on the screen immediately before the final credits: ‘Where must we go, we who wander these wasteland, in search of our better selves?’ 54 Mad Max Beyond Thunderdome (Warner Bros, 1985). 55 Into Eternity: A Film for The Future (Magic Hour Films, 2010). 56 Kaplan discusses the significance of this documentary in her analysis of pretraumatic cinema: E Ann Kaplan, Climate Trauma. Foreseeing the Future in Dystopian Film and Fiction (Rutgers

The sense of an ending  193 say very little about buried poisons and radioactive material.57 Yet the timespan involved with nuclear waste, 100,000 years, takes us into deep time and well beyond any historical precedent for the ongoing survival of cultural narratives and modes of communication. A similar challenge is addressed in fictional form in Isobelle Carmody’s Obernewtyn chronicles,58 set in the wild time after a nuclear holocaust has transformed the planet. The heroine, Elspeth Gordie, is guided by ambiguous signs and messages from long dead, psychic predecessors in her assigned quest to prevent any future activation of remaining nuclear weaponry. In order to achieve this, she must manage and interpret sophisticated computerised technology in a future society in which such knowledge has long since lost. Furthermore, attempts are underway to preserve a legacy of biodiversity for an uncertain future. Seed vaults constitute one such initiative but are not necessarily immune from destruction. The most well-known of these, the doomsday Global Seed Vault in Svalbard, is currently endangered by the unforeseen melting of the permafrost.59 It is also potentially vulnerable to other threats; in The Wind Up Girl, the seedbank has been destroyed when one of the powerful ‘calorie companies’, which produce and patent genetically engineered seed, attempted a raid.60 As this discussion illustrates, there is no guarantee that all or, indeed, any narratives will endure in wild time. We are a species addicted to storytelling and we have developed sophisticated forms of technology to transmit and preserve our stories. However, all stories and all painstakingly accumulated talents and knowledge can disappear in the space of only one generation, as Crake cheerfully speculates in Oryx and Crake: ‘Break the link in time between one generation and the next, and it’s game over forever’.61 Irrespective of any safeguards we put in place, our narratives and the accumulated cultural baggage of human civilisation may not survive the global challenges presented by the trickster of runaway climate change and the vicissitudes of wild time.

Conclusion Climate change narratives are operating at every level of society and politics. Inevitably, they intersect. They can inspire, deter, alarm, reassure and entertain. Some are entirely works of imagination. Some are precisely based on fact and observation. Some are authoritative, endorsed by judges or the product of

57 58 59

60 61

University Press, 2016) 120–6. Timothy Morton also refers to the documentary in Hyperobjects. Philosophy and Ecology after the End of the World (University of Minnesota Press, 2013) 121. Stefania Barca, ‘Telling the Right Story: Environmental Violence and Liberation Narratives’ (2014) 20(4) Environment and History 535, 540–41. The seven-part series begins with Isobelle Carmody, Obernewtyn (Penguin Books, 1987) and concludes with Isobelle Carmody, The Red Queen (Penguin Books, 2016). Damian Carrington, ‘Arctic Stronghold of World’s Seeds Flooded after Permafrost Melts’, The Guardian (online, 20 May 2017) . Paolo Bacigalupia, The Windup Girl (Orbit, 2010) 8–9. Atwood, Oryx and Crake (n 21) 223.

194  The sense of an ending consensus amongst a vast community of scientists. Others are not. They are all compelling for us, poised as we are in this current moment between the known stability of the Holocene and the unknown, hostile future of wild time. In this project, I have endeavoured to highlight the diversity and importance of climate change narratives. In their almost infinite array of formats and variations, they demonstrate the extent to which the existential crisis of climate change has come to dominate our imaginations, our fears, our parenting, our politics and our economy. There is no right way of telling the climate story or the story of wild time. Entangled as we are in the hyperobject62 of climate change, we are all, to a greater or lesser extent, unreliable narrators. Unless, however, we develop a concerted, effective, global response to the climate crisis within an increasingly critical timeframe, our contemporary narratives of climate change will have failed as catalyst and script. If such narratives endure past midnight, they will serve only as historical record of our headlong, reckless rush towards our own extinction and the extinction of most other lifeforms on Earth.

62 Morton (n 56).

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Index

Note: Page numbers followed by “n” denote endnotes. 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (‘COP 21’) 97 Abbott, Sally, Closing Down 106 Abbott, Tony 34–5 Abrahams, Guy 58 Abrahams, Kim 58 activism 155–6, 185; and defence of necessity 169–71; as embodied performance 162–8; improvisational performances 165; and law-breaking 168, 169; and the limitations of democracy 176–7; petitions 68; political resistance 164–5; shareholder 58; Tipping Point 110; vigilantism 170; youth 62, 63, 72, 81; see also climate activism; defence of necessity Adani, Carmichael mine 40, 41 Agamben, Giorgio 156, 178 agency 55–6 air travel, climate impact of 108–11 Albrecht, Glenn 17 American Declaration of the Rights and Duties of Man 98–103 Amsterdam, Steven, Things We Didn’t See Coming 114 animals: bees in wild time 151–2; and the human gaze 147–50; in the MaddAddam trilogy 146–7; as the ‘Other’ 146 Anthropocene 2, 16, 28, 96, 143, 145, 147, 148, 183; legal systems in 32; as setting for climate fiction 129–30; and time 4, 5; and the trickster narrative 10–13; wild time 6–10, 11 anthropogenic greenhouse gas emissions 134n52

anti-coalmine litigation: Anvil Hill coalmine case 37, 40; Bowen Basin coalmine case 38; limitations of environmental law 39–41; Rocky Hill mine case 42–3; substitution argument 37–8; see also coal industry; substitution argument anti-narrative 17 anti-protest legislation in Australia 117–18 Anvil Hill coalmine case 37, 40 aporia 33; legal 40–1 artificial intelligence 126 Assessments Reports (IPCC) 19 asylum seekers, in Australia 107 Atwood, Margaret 138, 144, 182, 189; MaddAddam trilogy 6, 89–90, 92–3, 135–6, 139–41, 141–2, 144, 146–7, 149–50, 151, 191; Oryx and Crake 9, 90, 142, 191; Year of the Flood 29, 89 Australia: anti-protest legislation 117–18; Anvil Hill coalmine case 37; arguments of ‘necessity’ in 175; asylum seekers in 107; Bowen Basin coalmine case 38; climate litigation in 35–6; expansion of the coal industry in 34–5, 36; Knitting Nannas 30, 158–9; political recasting of the climate change narrative in 25–6; Rocky Hill mine case 42–3; School Strike 4 Climate movement 78–9; sea rise 112; Tipping Point 110; youth activism in 76, 80–1 Australian Youth Climate Coalition 76 Bacigalupi, Paolo, The Windup Girl 142, 193 Bali Principles of Climate Justice (2002) 97 Barad, Karen 55 Barritt, Emily 31

226 Index Baxi, Upendra 124 Beder, Sharon 117 Belgium, Youth for Climate movement 78 Bell-James, Justine 37 Bennett, Jane 54–5 Bertagna, Julie, Exodus 83, 89, 106 Blade Runner 148, 152; cyborgs 142–3; nonhumans in 149; sacrifice zones 138 Blade Runner 2049 143, 148 Bonser-Lain, Angela 68 border carbon adjustments 125 Bowen Basin coalmine case 38 Bowman, Wendy 115 Boyd, David R. 120 Bradley, James 17; Clade 130–1, 151 Brandalism 158, 160 Brimelow, Kirsty 118 Brockway, Abby 172–3 de Brum, Tony 56 Buckel, David 164–5 Bulletin of the Atomic Scientists 6, 7 Burger, Michael 142 Caldicott, Helen 23 Canadian Charter of Rights and Freedoms 103 Capitalocene 5 Carbon Majors 32, 49; civil lawsuits against 50–3; corporate criminality 56–7; and the narrative of the corporate villain 53–6; petition against 99; and Trojan horse tactics 57–9 Carmichael mine 40, 78–9, 124 Carmody, Isobelle, Obernewtyn chronicles 193 Carson, Rachel, Silent Spring 24 Carvalho case 69–70 cases 53; Children’s Trust lawsuits 62; Exxon Mobil Corporation v Schneiderman 22–3; Juliana v United State 46–7, 53, 62, 63, 65–6, 67, 70, 72; Leghari v Federation of Pakistan 46, 100; Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation 21–2; R v Jones 176–7; Reynolds v Florida 67n37; Third Runway at Vienna International Airport 109n100; Urgenda v Netherlands 44–6, 48, 100; see also civil lawsuits against Carbon Majors catalyst, climate narrative as 184–6 catastrophes 168–9 Chakrabarty, Dipesh 95, 170 Chandler, Jo 24–5

Charlesworth, Hilary 177 Charter of Fundamental Rights of the European Union 2000 102, 102n57 children: as activists 82–3; centrality of in climate change discourse 61; feral 88–9; as narrators 92–3; posthumous 89–92; as victims 83–8; in wild time 81–2 Children’s Trust lawsuits 33, 47, 62, 67–8, 100, 170 circularity of time in climate fiction 132–3 civil disobedience, and climate activism 159 civil lawsuits against Carbon Majors 50–3 climate activism 13, 155–6, 157–8, 183, 185; Brandalism 160; Climate Guardians 158; and dark play 156–7; and defence of necessity 169–71; as embodied performance 162–8; Flood Wall Street 11 174; Growling Grannies against Gas 159; Knitting Nannas 158–9; and law-breaking 168, 169; Liberate Tate group 163; and the limitations of democracy 176–7; performances 165–6; police violence against 163–4; political resistance 164–5; Raging Grannies 159–60; Repatriate I 165; theatrical productions 166–7; Tide 165; Valve Turners 174–5; vigilantism 170; see also defence of necessity; tricksters climate change 8, 155; air travel impact on 108–11; challenges of for judges 31; corporate complicity in 49, 54; and corporate criminality 56–7; corporate narratives 20–3; corporate villain narratives 53–6; discourse, centrality of the child in 61; and the Doomsday Clock 7; and freedom of speech 116–18; as global emergency 177; in the Global North 25; Holocaust analogy 56; Hothouse Earth 8; and human and nonhuman agency 55–6; and human rights 94, 95–7; as ‘hyperobject’ 12; legal narratives 21–2, 24; ‘narrative turn’ 16; narratives 2, 3, 193–4; and necessity 173–6; and nonhuman rights 94; and the oil industry 52; and population displacement 105–6; and property rights 111–15; pseudo-scientific narratives 20; scientific modelling and attribution 38–9; scientific narratives of 18–20; and sea rise 112; and state of exception 177–83; and time 3–4; and the trickster narrative 11–12, 29–30; trivialising 26; as ‘wicked’ problem 54–5; wild time 10; see also narratives climate change theatre 27

Index  227 climate fiction 2n12; and bees 151–2; Bone Clocks, The (Mitchell) 8; The Carhullan Army 111; circularity of time in 132–3; Dyschronia (Mills) 8; generational time 130–1; and global apocalypse 7–8; Homing Instinct 111; and the human gaze 147–50; narratives 23–4; Oryx and Crake (Atwood) 9; population displacement in 106; Road, The (McCarthy) 9; sacrifice zones 136–7; seers in 131–2; timeframes of 129–32; trickster narratives 132–33, 139–41; walkaway settlements 137; wild time 129 Climate Guardians 158 climate justice 94, 96–7, 124 climate litigation 13, 48, 59–60, 155–6; Children’s Trust lawsuits 33, 47, 62, 67–8, 100, 170; civil lawsuits against Carbon Majors 50–3; and corporate accountability 57–8; delays in 71–2; holding governments to account 43–9; and human rights 33; judges 24; limitations of environmental law 39–41; mitigation initiatives 103–4; and necessity 173–6; next generation 44; rights-based remedies 98–103; Rocky Hill mine case 42–3; Trojan horse tactics 57–9; Urgenda v Netherlands 48; see also next generation climate litigation; youth climate litigation coal industry: in Australia 34–5, 36; Rocky Hill mine case 42–3; scientific modelling and attribution 38–9; see also anti-coalmine litigation Coffin, Thomas 47, 71 Cohen, Tom 7, 178 Coleman, Haven 74 conferral of personhood to nonhumans 120 Conor, Liz 158 consumer capitalism 86 Conway, Erik M 182 corporate environmentalism 21–2 corporate narratives 20–3 corporate rights 124–5 corporate tricksters 12–13, 49, 143–5, 152; Body of Glass 145; The Bone Clocks 144; MaddAddam trilogy 144; The Stone Gods 144–5; in youth climate litigation 66–7 corporate villain narratives 53–6 Corporations Act 2001 (Cth) 58–9, 161 Cox, Roger 44

Crutzen, Paul 96 Cuaron, Alfonso, Children of Men 82 cyborgs 141–3; Blade Runner 142–3; Blade Runner 2049 143; rights of 126 Dalu, Angela 159 dangerous dissent 75n80, 76–7 Dark Mountain Project 123 dark play 14, 15, 156–7; I-Land X-isle 165; Liberate Tate group 163; performances 165–6; and police violence 163–4; Refuge 166; Repatriate I 165; risks of 163; Tide 165 Day After Tomorrow, The 189–90 DeChristopher, Tim 160–2, 174, 177 defence of necessity 169–71, 175, 176; Delta Five 172–3; Flood Wall Street 11 174; Kingsnorth Six 171–2 delays in climate litigation 71–2 Delta Five 172–3 Derrida, Jacques 2, 146, 148, 169 development, right to 103–4 Dibley, Ben 5 Dick, Philip K. 142, 148 disaster mythology 154 disaster tourism 136n67 disruptive dissent 76–7 dissent 76–7 Doctorow, Cory, Walkaway 135 Doomsday Clock 6, 7, 72; and climate change 7; midnight 7, 8 Dovey, Ceridwen 121 Dunlop, Ian 19 dutiful dissent 76–7 Dutton, Peter 25 Earth Guardians 62 Elton, Ben, Stark 138 emergency narratives 177 ‘endsickness’ 17 environmental law, limitations of 39–41 equity, intergenerational 61 Erdrich, Louise, Future Home of a Living God 91, 133 Eremocene 145 Esposito, Roberto 169 European Convention for the Protection of Human Rights and Fundamental Freedoms: Article 2 45; Article 8 45 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 100, 101 extinction events, bees in wild time 151–2

228 Index Extinction Rebellion 77–8, 164–5, 180–1, 185 Exxon Mobil Corporation v Schneiderman 22–3 ExxonMobil 116–17; and corporate environmentalism 21–2; lobbying expenditures 80; Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation 21–2 Feinstein, Diane 76, 185 Feyerabend, Paul 29 Figueres, Christiana 20 Finnigan, David 191; Kill Climate Deniers 27 First Nations: conception of time 5; Growling Grannies against Gas 159; Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation 21–2 Fisher, Elizabeth 31 Flanagan, Richard 25 Flannery, Tim 4, 182 Flood Wall Street 11 174 ‘force of law’ 2 fourth wall 27 Fowler, Karen, We Are All Completely Besides Ourselves 121–2 free trade 124–5 freedom of movement: air travel 108–11; climate refugees 107–8 freedom of speech 116; anti-protest legislation in Australia 117–18; and climate sceptics 117; corporate 116–17; freedom of assembly 118 freedom of trade 124 Fukoshima nuclear meltdowns 84, 150 Future Generations case 69, 102, 188 Future Investment Initiative Conference 125 Gearty, Conor 118 generational time 130–1 Geneva Pledge for Human Rights in Climate Action 97 Ghosh, Amitav 10, 11, 29, 82, 121, 129, 133, 148, 157, 165 global apocalypse, in climate fiction 7–8 Global Compact for Safe, Orderly and Regular Migration (2018) 108 Going Nowhere 110 Gonzalez, Emma 73 Gore, Al 180 Gould, Stephen Jay 4, 9–10

Graham, Nicole 111 Grear, Anna 12, 124 Great Acceleration 95–6, 124 Great Collapse 96, 182 great derangement, the 157 Green New Deal 75, 76 greenhouse gas emissions 20, 34, 37–41, 45, 51, 54, 67, 95–6, 98, 103–4, 114, 124–5, 134n52, 163; from air travel 108–9 Greenpeace, Kingsnorth Six 171–2 greenwashing 160 Greta Thunberg 77–9, 187 Griffiths, Tom 16 Grow Sun, Lisa 154 Growling Grannies against Gas 159 gun control 73 Gurukmun 15 Hall, Sarah, The Carhullan Army 111, 136 Handmaid’s Tale, The 182 Hansen, James 17, 18, 28, 56, 61–2, 171, 175 Haraway, Donna 14, 30, 90–1, 119, 142, 143 Hardin, Garrett 113 Harm Benson, Melinda 11 Hartford Davis, Sebastian 59 Hawking, Stephen 180 Hayward, Bronwyn 76 Higgins, Polly 57 Higginson, Sue 35 Hilson, Chris 187 Hinchliffe, Jean 81 hoaxes, and dark play 160–2 Holocene era, legal systems in 32 Hornborg, Alf 124–5 Hothouse Earth 8, 61, 76–7, 107, 153, 187 human gaze, the 147–50 human rights 33, 94, 126; Great Acceleration 95–6; and the Great Collapse 96; Juliana v United State 100–1; Leghari v Federation of Pakistan 100; and mitigation initiatives 103–4; petition of the Inuit with the Inter-American Commission on Human Rights 98–9; Urgenda v Netherlands 100 hurricanes 12 Hutley, Noel 59 Hyde, Lewis 33, 157 ‘hyperobject,’ climate change as 12

Index  229 I-Land X-isle 165 improvisational performances, Tide 165 intergenerational equity 61 Intergovernmental Panel on Climate Change (IPCC) 18–19; Shared Socioeconomic Pathways 128–9; Special Report (2018) 19–20, 34, 35, 43, 44, 54, 71, 75 International Commission on Stratigraphy, International Chronostratigraphic Chart 4–5 International Covenant on Civil and Political Rights (1966) 95 International Covenant on Economic, Social and Cultural Rights (1966) 95 international free trade agreements 124 international human rights 33, 123, 124; Great Acceleration 95–6; Juliana v United State 100–1; Leghari v Federation of Pakistan 100; petition of the Inuit with the Inter-American Commission on Human Rights 98–9; Urgenda v Netherlands 100 Into Eternity 192–3 Investor-State Dispute Settlement clauses 40–1, 124 ‘Is Earth F**ked?’ 185 Jackson, M 153 Jensen, Liz, The Rapture 132 Jetnil-Kijiner, Kathy, Dear Matafele Peinam 64 Johns-Putra, Adeline 61, 152–3 judges 31; in climate litigation 24; and limitations of environmental law 39–41 Juliana v United State 46–7, 53, 62, 63, 65–6, 67, 70, 72, 100–1 Jung, Carl 14 Kaplan, E Ann 131, 181 Kerry, John 61 Kershaw, Baz 157, 170 Kill Climate Deniers 166–7 Kilpatrick, Fleur 27 King, Laura 48, 168 Kingsnorth Six 171–2, 175 Kingsolver, Barbara: Flight Behaviour 130; Unsheltered 113–14, 130 Kirkwood, Lucy, The Children 83–5, 150 Klein, Naomi 107 Knitting Nannas 30, 158–9 Knox, John 62 Kolbert, Elizabeth 145 Kotze, Louis 123

Kunc, François 180 Kundis Craig, Robin 11, 156, 188 Kyoto Protocol 85, 115 Kysar, Douglas 31, 44, 47, 53 Lanchester, John, The Wall 92, 106 Langsdorf, Martyl 6 language: describing wild time 17–18; of rights 123 Latour 5 Latour, Bruno 12, 26 law-breaking 169; defence of necessity 169–71; state of exception 177–83; see also defence of necessity lawscape 111–12 Lazarus, Richard 31 Le Guin, Ursula 10, 28 legal narratives 21–2, 24, 31, 32–3; climate litigation in Australia 34–6; Exxon Mobil Corporation v Schneiderman 22–3; holding governments to account 43–9; judges 31; judges in climate litigation 24; limitations of environmental law 39–41; Rocky Hill mine case 42–3; substitution argument 37–8; youth climate litigation 33; see also climate litigation; next generation climate litigation legal systems 32 Leghari v Federation of Pakistan 46, 100 Lessing, Doris: Mara and Dann. An Adventure 107, 133; Memoirs of a Survivor 88–9 Liberate Tate group 163 limitations, of environmental law 39–41 literary discourse: nonhuman turn in 120–2; ‘uncivilised writing’ 123 Lloyd, Saci, The Carbon Diaries 83, 92 Lovelock, James 9, 128, 180, 191 Lowe, Ian 39 Lunde, Maja, The History of the Bees 86–7, 131 Lynge, Aqqaluk 171 Lyster, Rosemary 4 Mad Max 192 Magnolia case 69 Malé Declaration on the Human Dimension of Global Climate Change (2007) 97 Malhi, Yadvinder 16 March for Our Lives 73, 77, 82–3 Margery Stoneman Douglas High School shooting 73

230 Index Margolin, Jamie 62, 73, 86 marketplace, and trickters 160–2 Markey, Edward J 185 Marshall Islands 64–5 Martinez, Xiuhtezcatl 62, 74 materialism 54–5 Matthews, Freya 151 May, Theresa 79 Mazza, Patrick 173 McCarthy, Cormac, The Road 9, 87, 150 McClain, Dani, Homing Instinct 111 McEwan, Ian 63; Solar 113, 129–30 McKibben, Bill 17, 28, 53, 174, 175, 180 McVeigh, Mark 58 Meeker, Joseph 15, 139 mega-corporation, the 143 Meghalayan 4–5 Meinshausen, Malte 39 metalepsis 27 metaphors of time 4 Meyer, Aubrey 104 midnight, on the Doomsday Clock 7–8 Milkioret, Marijana 153 Mills, Jennifer, Dyschronia 8, 17, 131–2 Minnesma, Marjan 48 mirror, narrative as 186–8 Mitchell, David 189; The Bone Clocks 8, 144 mitigation initiatives, and human rights 103–4 Morrison, Scott 25, 35, 79 Morton, Timothy 11, 12, 15, 26, 29, 114–15, 119, 121, 123, 146, 154 Moylan, Jonathon 160–2 myths: of corporate environmentalism 21–2; disaster mythology 154 Nannafesto 158 ‘narrative turn’ 2 narratives 2, 3, 189–93; anti- 17; as catalyst 184–6; children as narrators 92–3; of climate change 1, 17, 25–6; climate change theatre 27; of climate fiction 23–4; corporate 20–3; of the corporate villain 53–6; and descriptions of wild time 17–18; of emergency 177; legal 21–2, 24; metalepsis 27; as mirror 186–8; pseudo-scientific 20; of redemption 128; reliability of 25; scientific 18–20; as script 188–9; trickster 11, 29–30, 58, 132–3; in youth climate litigation 64–6, 74; see also trickster narratives; wild time

narrators, children as 92–3 Nasheed, Mohammed 165 National Climate Assessment Report (2018) 25 National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People 99 Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation 21–2, 114 natural disasters: in climate fiction 132; disaster mythology 154; disaster tourism 136n67; and population displacement 105–6 Nature and Youth 62, 69 ‘necessity’ arguments: and climate change 173–6; see also defence of necessity Ness, Patrick 121 Nevins, Joseph 109 new materialism 54–5 New Zealand: and climate refugees 107–8; Whanganui River Settlement Agreement 119 next generation climate litigation 44; Juliana v United State 46–7, 53, 62, 63, 65–6, 67, 70, 72; Leghari v Federation of Pakistan 46; Urgenda v Netherlands 44–6, 48, 53, 100 Nongovernmental International Panel on Climate Change 20 nonhuman agency 55–6 nonhuman rights 94–5, 119, 120; in wild time 123 nonhuman turn in literary discourse 120–2 nonhumans, in Blade Runner 149 Norwegian Constitution, Article 112 101–2 Nunga people, conception of time 5 O’Brien, Karen 76 Ocasio-Cortez, Alexandria 64, 75, 185 off-planetary walkaways 138 Ogden, Laura 13 oil industry, and climate change 52 Olson, Julia 67 Oreskes, Naomi 19, 21, 182 Osofsky, Hari 100 ‘Other,’ the 146 Pacific Climate Warriors 76 Paris Agreement 34, 51, 61, 97, 97–8n24 pastoral literature 135 Paterson, Katie 189

Index  231 Peel, Jacqueline 100 Pelosi, Nancy 75 Period of the Penumbra 182 petitions 68; against the Carbon Majors 99; of the Inuit with the Inter-American Commission on Human Rights 98–9 Philippopoulos-Mihalopoulos, Andreas 16, 27, 28, 43 picaro, the 15 Piccinini, Patricia 90 Piercy, Marge, Body of Glass 126, 137–8, 139, 141, 142, 145 play 29 Plumwood, Val 55 police violence against climate activists 163–4 ‘political question’ doctrine 44, 47 political resistance 164–5 population displacement 105; asylum seekers in Australia 107; Closing Down 106; Exodus 106; Global Compact for Safe, Orderly and Regular Migration (2018) 108; Inupiat Native Alaskan community 114; Mara and Dann. An Adventure 107; The Wall 106 posthumans 141–3; MaddAddam 141–2; Oryx and Crake 142; rights of 125–6 posthumous children: Blade Runner 2049 91–2; Future Home of a Living God 91; MaddAddam trilogy 89–90 Potsdam Institute for Climate Impact Research 39 Power Shift 76 Powers, Richard, The Overstory 121 Preston, Brian 34, 36, 41, 42, 57, 186 Price, John 59 Price, Melissa 26 property rights 111–15; The Glad Shout 114; lawscape 111–12; lawsuits 115; private property 113, 114–15; and sea rise 112; Solar 113; Unsheltered 113–14 public trust doctrine 48 public trust litigation 60 Quebec Charter of Human Rights and Freedoms 103 R v Jones 176–7 Raging Grannies 159–60 Ranald, Patricia 40 Raven Trickster 13 Rawson, Jane, From the Wreck 121 redemption, narratives of 128

Refuge 184 refugees, freedom of movement 107–8 Retail Employees Superannuation Trust (REST) case 58–9 rewilding 10 Reynolds v Florida 67n37 Rich, Nathaniel 3, 54, 72; Odds Against Tomorrow 130, 132, 137 Richardson, Benjamin 24 Rigby, Kate 188; Dancing with Disaster 28 right to development 103–4 Rights of Nature movement 119, 126 rights of posthumans 125–6 rights-based litigation 69 rights-based remedies, property rights 111–15 Rising Up UK 180–1 Robinson, Alice, The Glad Shout 87–8, 114 Rocky Hill coalmine case 34–6, 42–3, 186 Rose, Carol 113 Rose, Deborah Bird 5, 7, 10, 11, 57, 119, 145, 147 Ross Meyer, Linda 168 rules: and dark play 156; and defence of necessity 169–71; law-breaking 168; and state of exception 177–83 Rush, Elizabeth 17, 112; Beasts of the Southern Wild 154 Ryan, Sean 37 sacrifice zones 136–7; Blade Runner 138; Stark 138 Sands, Philippe 56 Schechner, Richard 13–14, 162 Schmitt, Carl 178 Schneiderman, Eric 22 School Strike 4 Climate movement 78–9 scientific modelling 38–9, 155; ‘Is Earth F**ked?’ 185 scientific narratives 18–20 Scope 3 emissions 37 Scotford, Eloise 31 Scranton, Roy 3, 8, 86; ‘Raising a Daughter in a Doomed World’ 63 script, climate narrative as 188–9 sea rise 112 seers, in climate fiction 131–2 Selboe, Elin 76 Seventh Generation 73–4 shadow, the 14 Shah, Syed Mansoor Ali 46 Shared Socioeconomic Pathways 128–9

232 Index shareholder activism 58 Shute, Nevil, On the Beach 24 Simpson, Helen, Flight Behaviour 110–11 Singer, Peter 82 Smiley, Jane 131 ‘solastalgia’ 17, 41 Sophia 125 speculative fiction 182 Spratt, David 19, 180 St John Mandel, Emily, Station Eleven 191 Standing Rock protests 73–4 state of exception 177–83 states of emergency 179–80 Steffen, Will 8, 34, 42, 95 Stoermer, Eugene 96 Stokes, Rob 79 Strauss, Rose 75–6 Students Climate Network 78 substitution argument 37–8 Summaries for Policymakers 19 Sunrise Movement 74–5 Supran, Geoffrey 21 Sutton, Philip 180 Swiss Constitution, Article 10 101 Taumeopeau, Latai 165 Teitiota, Ioane 107 theatrical productions, as climate activism 166–7 Third Runway at Vienna International Airport case 109n100 Thompson, Joshua 165 Thornton, Patricia M 11 Thornton, Thomas F 11, 16 Thunberg, Greta 77–8, 79, 109–10, 156, 187 Tide 165, 185 time 155, 187; Anthropocene 4, 5, 145, 147; circularity of in climate fiction 132–3; and climate change 3–4; and delays in climate litigation 71–2; Doomsday Clock 6, 7; First Nations’ relationship with 5; generational 130–1; metaphors 4; and the Nunga people 5; rewilding 10; and sense of urgency in youth climate litigation 70–2; and the Vic River people 5–6; Western conception of 5, 5–6; ‘wild’ 4, 6–10, 11, 23, 29; see also wild time timeframes of climate fiction, Anthropocene 129–30 Tipping Point 110 Tong, Anote 26

tragedy of the commons 113 Tremblay, Hugo 173 Trexler, Adam 130, 153 trickster narratives 188 tricksters 1, 11, 16, 29–30, 31, 58, 129, 133, 139–41, 155; Body of Glass 141; and circularity of time 133; corporate tricksters 12–13, 49; dark play 14, 15, 156–7; in First Nations 15; MaddAddam 139–41; in the marketplace 160–2; picaro 15; Raven Trickster 13; ‘the shadow’ 14; and weather events 12; whirlwind 75; and wild time 13–14 Trojan horse tactics 57–9 Trump, Donald 12, 25, 47, 66, 179 Turner, Victor 29 Turning Point USA 117 ‘uncivilised writing’ 123 United Kingdom: Brandalism 160; Kingsnorth Six 171–2; Rising Up UK 180–1; Students Climate Network 78 United Nations Convention on Genocide 97 United Nations Declaration on the Right to Development (1986) 103 United Nations Framework Convention on Climate Change, Preamble 104 United States: arguments of ‘necessity’ in 175; Children’s Trust lawsuits 62; Delta Five 172–3; ‘political question’ doctrine 44, 47; Sunrise Movement 74–5 Universal Declaration of Human Rights (1948) 95, 97 unreliable narrators 18n127 Urgenda v Netherlands 44–6, 48, 53, 100 Valve Turners 159–60, 174–5 Van Dooren, Thom 147 Verlie, Blanche 26–7 Vic River people, conception of time 5–6 victims, children as 83–8; The Children 83–5; The Glad Shout 87–8; The History of the Bees 86–7; The Road 87 vigilantism 170 vocabulary, and descriptions of wild time 17–18 walkaway settlements 137; Body of Glass 137–8; The Stone Gods 137 walkaways 135–9; The Carhullan Army 136; MaddAddam trilogy 135–6; Odds Against Tomorrow 137;

Index  233 off-planetary 138; and sacrifice zones 136–7; Walkaway 135–6 Wallace-Wells, David 16, 63–4 Washburn, Anne, Mr Burns. A Post-Electric Play 192 Watson, Irene 5, 15 Watt-Cloutier, Sheila 98 Weaver, Henry R 31, 44, 47, 53 Webber, Gavin 165 Werner, Brad 185 Western conception of time 5–6 Whanganui River Settlement Agreement 119 Wheeler, Sally 12–13 whirlwind 75 ‘wicked’ problem 176–7; climate change as 54–5 Wilansky, Sophia 163–4 Wild Law Judgment project 122 wild time 4, 6–10, 11, 23, 29, 86–7, 89–90, 119, 129, 133, 184, 192, 193; and the ‘animal’ 145; bees in 151–2; children in 81–2; and corporations 143–5; describing 17–18; and disaster mythology 154; Hothouse Earth 8–9; midnight on the Doomsday Clock 7–8; nonhuman rights in 123; nonhumans and cyborgs 141–3; rewilding 10; and trickster narratives

13–14, 15–16, 139–41; walkaways 135–9; and weather events 12 Wilson, EO 145 Winterson, Jeanette: The Stone Gods 133, 134, 137, 144–5; Tanglewreck 133–4 Wood, Mary Christina 41, 170 youth activism 62, 63, 72–3, 76–7, 82–3; in Australia 76, 80–1; Extinction Rebellion 77–8; Friday strikes 78; Greta Thunberg 77–9; Kathy Jetnil-Kijiner 64; March for Our Lives 73, 77; narratives 74; petitions 68; School Strike 4 Climate movement 78–9; Standing Rock protests 73–4; strikes 79–80, 81; Students Climate Network 78; Sunrise Movement 74–5; Youth for Climate movement 78 youth climate litigation 33, 63–70; Carvalho case 70; Children’s Trust lawsuits 62, 67; corporate tricksters 66–7; Future Generations case 69, 102; Magnolia case 69; narratives 64–6, 74; rights-based 69; sense of urgency in 70–2 Youth for Climate movement 78, 79–80 Zero Hour 62, 63, 72, 187; March for Our Lives 73