Fieldnotes for the Future: What can environmental justice lawyering contribute towards lawyering for the climate?

Introduction

I began my career as an environmental lawyer with Natural Justice (NJ) a collective of environmental lawyers based in South Africa. Natural Justice lawyered within the narrow crevice of working with local communities and the environment. Through NJ I was able to work with forest-dwellers in the eastern state of Odisha and the northern state of Rajasthan. I vividly remember one incident that shaped my understanding of environmental law and lawyering- I was documenting the legal violations by the local bureaucracy as forest land was being acquired in Sonbhadra, Uttar Pradesh which is home to many thermal power plants. I met with Shobha there who had been illegally arrested, subject to sexual assault as she struggled to protect her home which was at the fringe of a thermal power plant. I asked her what she expects from environmental law and lawyers, and she remarked “ Environmental law is much more than protecting the trees it is about ensuring that the rights of people like me are secured too, I am protecting my land and hence the forest so environmental law and lawyers should be protecting me too?” This observation went on to define my approach to environmental lawyering- how can we protect the planet in ways that secure the rights of marginalized communities dependent on these ecosystems and do not further marginalize them? a difficult ask but one that got me to explore the complexities of environmental lawyering.

Environmental justice was a term I encountered early in my career as an environmental lawyer, I do not want to get academic about its definition, but I began to categorize environmental justice lawyering as that which aimed to address the question I posed above. In the first part of this blog series, I want to document some of the learnings from the field that I learned from my attempts to practice environmental justice lawyering. I am hoping these lessons may inform the future of environmental lawyering in the context of the climate crisis. I want to begin with exploring the question of who the client in such complex conflicts is and whether lawyering from the vantage point of a client makes sense. I restrict my use of the term client here only to local communities and the environment. I will then explore the challenges of building inclusive legal strategies from the ground up.

Who is the client?

In the monsoon of August 2018, I was in Sundergarh, Odisha trying to understand what the right to self-determination meant to forest-dwelling communities. During the meeting of the village assembly, a village elder stated that rights are one way to assert a predicament but, what is needed is conflicting rights to be reconciled. That got me thinking that in a context where conflicting rights must be worked out does lawyering for one client alone achieve this?  As a practicing environmental lawyer, I was a lawyer representing forest-dwelling communities as my clients- an entire community that was often fragmented and fractured by different interests. It would be more honest to share that I was a lawyer representing a particular section of the local community where environmental considerations were intertwined. For example, in a situation where the community was impacted by a mine, I found myself working with the section of the community that was opposing the mine, and seldom did I engage with those who wanted the mine in their area. That I later realized was not necessarily lawyering for the community but lawyering with the section of the community that conveniently fit my idea of justice.

Lawyering from a particular normative framework and subsequently identifying a client limits the scope of environmental lawyering significantly. I am now going to propose a rather radical idea for environmental justice lawyering and future climate lawyering can we begin to lawyer from the vantage point of the interconnectedness of actors particularly local communities and the environment embedded in an environmental conflict as opposed to one client? I understand that lawyers must choose clients and clients must approach lawyers but what I am proposing is before lawyers enter into a conflict can, they view the legal issue from a holistic perspective such that aspects of just transition, rights of nature, rights of local communities and their interests are seen as part of one web of legal asks as opposed to lawyering that marginalizes one set of interests for the other. This approach can also assist in building more robust legal strategies that take a multiplicity of interests on board and accordingly attract a coalition of clients which is what we need in the context of climate lawyering.

Co-creating legal strategies for environmental justice

Following from my radical suggestion of lawyering from the interconnectedness of actors in a conflict I suggest a different approach to building legal strategies. Legal strategies are often built from the perspective of a single client and how to make their interests heard and recognized. The legal strategies further are seen as the exclusive domain of the environmental lawyer rummaging through the legal documents, statutes, and case laws. What if legal strategies were co-created through a consensus-building process with multiple interests in an environmental conflict?

The reason I propose this is that only when divisions within local communities are healed while also recognizing the agency of the ecosystem can legal strategies be robust and equitable. The risk that environmental justice lawyering runs is prioritizing one set of interests to marginalize the others. The local communities need to identify and prioritize these interests and environmental lawyers should seek to devise legal strategies that support this. This detailed process of consensus-building may seem tedious and long-drawn but perhaps that is the preparatory work needed to be able to build legal strategies that do not further marginalize those who are already vulnerable.

Conclusion

In conclusion in this blog post, I briefly explored what would it mean for environmental lawyering to move beyond the relationship of only one client and radically alter the meaning of legal representation. I then proposed a possible way of co-creating legal strategies through a consensus process. Environmental justice lawyering is a tough job that requires lawyers to move away from traditional lawyering to embracing the quirky and challenging aspects of the law. In the next blog post, I will examine what can integrative legal strategies look like and address the tough question of how do environmental lawyers struggle to represent the environment.

Advertisement

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s