Constitutionalizing in the Anthropocene

Covid-19 and Climate Change: Lessons of Difference, not Similarity

January 1, 2022

* Note: This is a copy of a blogpost published on Tilburg University’s Environmental Law Blog on May 26, 2020. The actual blogpost (with embedded hyperlinks) is available at:

Thomas Kuhn once wrote that crises are ‘a necessary precondition for the emergence of novel theories.’ This dynamic is on display today as scholars (including this one) from all disciplines around the world scramble to come up with relevant lessons to learn from the ongoing coronavirus/Covid-19 pandemic. Whether in the hard sciences, social sciences,  humanities and law, with each new blogpost, opinion column, grant application, journal article, and even entire monographs, the urgency of the moment is inspiring thinking and encouraging new forms of collaboration as people try to establish conceptual or empirical linkages between the pandemic and areas of scholarship they habitually write in. Indeed, so great is the siren call of the pandemic that it is posing a monumental distraction to virtually all other kinds of research.

This is certainly also the case with legal research on climate change and the Anthropocene.While it is beyond the scope of this post to summarize all of the pandemic-related work that legal scholars have devoted to the topic, it is worth observing that much of the lesson-learning happening now shares a methodological approach that identifies some parallel, overlap, or comparative similarity between the pandemic and whatever intellectual niches that legal scholars inhabit.Many such contributions either use the pandemic as a revelatory moment to re-emphasize what we already know (such as how existing law does not manage human-wildlife interactions well);  or to use it to reveal something new (such as coronavirus lawsuits posing opportunities for climate litigation; or the comparative effectiveness of swift state action in uniquely urgent moments of crisis). The object here is not to critique the hard and positive work that has been committed to this collective effort to explore the broader meaning of this moment we are in. However, while this moment is inspiring efforts to identify disciplinary similarities and overlaps with legal research on climate change and the pandemic, the meaningful differences between them are being neglected. The argument here is that this general methodological preference  is leaving the overall discourse somewhat imbalanced and that what makes this pandemic different from climate change may provide equally, if not more, meaningful insights into the times in which we now live.

Similarities between the two are not very difficult to find. Both have been categorized as ‘crises’, thereby inviting related questions be asked about things like emergency powers, state obligations, moral imperatives, among others. They both speak to threats to human life and health by natural forces beyond our control, and therefore pose questions about rights and the equal distribution of access to means and appropriate legal frameworks and mechanisms for protection. However, while playing out these similarities, which are valid and relevant in their own ways, one should not lose sight of why and in what ways they are also very different. As ‘crises’, both inspire political responsiveness, but they motivate it in very different ways. While some may look to recent emission statistics with optimism that the pandemic is revealing the capacity of the state to engineer massive social behavioural changes that can produce positive environmental impacts, the vast scale and duration of behavioural change that is required to achieve any lasting impact on climate change probably makes the pandemic a poor proxy for it. Even though this pandemic-induced economic slowdown may allow countries to actually meet their Paris climate accord commitments for the first time since 2015, few should expect the very modest emissions reduction trends of the current period to last once it is over. The temporal dimension is another reason to be cautious about hasty comparisons. While we may marvel at the clear skies over Milan, Paris, or Beijing, our collective anticipation of ‘returning to normal’ in the next 6 months, or year, or even two years, is simply an eagerness to return to our pre-pandemic role as net contributors to climate change. 

And it is with this temporal stir of the pot that a much more significant difference rises to the surface. Our collective fears and concerns about Covid-19 that are motivating legal reimaginings and legislative innovations these days are very different from the fears and concerns we have (or perhaps should have) about climate change because they are based on very different perceptions of our relationship to science and mortality. The general panic that is spreading around the world hand in hand with the disease is mitigated by an expectation that the vaccine-less moment in which we currently live is time-bound and will end at some discrete point in the near(ish) future. Any discussion about vaccines as resolving this pandemic reifies the inevitable conquest of the virus by science and technology, making it a question of when, and not if, we will once again feel safe and ‘normal’. Descriptions of Covid-19 as some novel expression of a vengeful ‘Nature’  are ultimately temporary accounts of human vulnerability to a force whose effects are terrifying, but ultimately fixable and reversible. Until a vaccine is found, the pandemic is being addressed as a temporary public health concern, which has made it possible for populations to adjust to forced changes to social norms, like social distancing, but also to new forms of state coercion. However, this unlikely to be more than a stop-gap until such time as the heroic labs of virologists (and the distributive logic of pharmaceutical markets) can rescue us, a stop-gap whose end is currently being accelerated by experimental efforts to relax restrictions and gingerly return to ‘normal’ ahead of time.

Climate change discourses, on the other hand, are coloured by completely different orientations towards the future and very different understandings of the dynamics of humanity’s relationship to the threat it poses. If with Covid-19 the role of science is to understand and conquer or defeat ‘Nature’ in the form of a virus, its role in climate change is more about trying to understand it, which is hard enough, but also to trying to predict the future, determine human causality and responsibility for it, and figuring out what should be done to somehow ensure a manageably perilous future for humanity (along whatever other species might survive with us). Scientific models predict futures of what will come from transgressing planetary boundaries which foretell scenarios where, unlike with Covid-19, there will be no ‘return to normal.’ There is no anticipated ‘vaccine’ for climate change that will allow us to return or suspend the world in some optimal state. Even fantastical, if not frightful, geo-engineering solutions are really just salves treating symptoms, that cannot be expected to reverse or ‘cure’ climate change. Although the pandemic has re-educated the public of what exponential growth means, whatever fears that public feels about transmission and death statistics are associated at least with a discrete virus. This makes them very different from fears about climate change that rest on far more abstract, difficult and uncertain knowledge bases about possible future states, even though they are hoped to similarly motivate world leaders to organize and commit to painful collective action goals to reach manageable future states.

It is these time/science/death distinctions between Covid-19 and climate change that make them fundamentally different legal problems to address. Legal responses to climate change are more about engineering durable and systemic change to mitigate its worst effects, rather than the current temporary restructurings of social practices that are designed to ‘flatten the curve’ and life until a ‘cure’ can be found. While state responses to Covid-19 have been more or less strong (if often distressingly delayed), international cooperation has been highly imperfect, reflecting something that is by now well known to climate change activists, that it is only with great difficulty that states can coordinate collective responses to global threats. Indeed, if anything, the pandemic is perversely undoing, rather than augmenting, ongoing efforts to come up with global political and legal solutions to climate change.

Furthermore, Covid-19 offers a clear target and focus for our attentions. It is easily described as a dangerous and tiny semi-alive bundle of RNA encased in a thin lipid shell, but whose danger to the human immune system is discrete enough to mobilize entire populations to temporarily suffer to protect themselves from it. Climate change, in contrast, for decades now has been a much more difficult flag to rally populations around. In these senses, then, the political bases upon which legal solutions to climate change have to work are much more difficult than those of Covid-19. The public has been demonstrably permissive of aggressive state action to deal with the pandemic, far more so than it would be for climate change, because the urgency is so much more psychologically palpable and obvious (and seemingly temporary). While we continue to fight Covid-19 with 19th Century public health techniques and the far more ancient technology of bars of soap, we do so in anticipation that science and technological innovation will, eventually, save us. It is this faith that presents the world’s leaders with the political space that they need to make dark calculations that weigh public health and death rates with economic needs. Both leaders and their electorates know that at some point in the foreseeable future this will all end. With climate change, though, no such comfort can be had. The climate-related calculations that have been put before world leaders and their diplomats for years now is not only far more massive, but also far more absolute and perpetual, and therefore harder to imagine, much less convince skeptical voters. 

If there is any inspiration that legal scholars of climate change can draw from epidemiology, it is that the most of world-wide decreases in mortality rates and increases to human lifespans over the past few centuries have come from large-scale behavioural and infrastructural changes and collective action campaigns, far more than from vaccine technologies. Hundreds of thousands of years of short human lives, lived amid constant fears of ever-imminent death by mysterious disease, were upended primarily by combinations of germ theory, significant public infrastructural investments, and social behavioural changes, all engineered through improvements to public sanitation, road building, urban planning, food production and preparation, education, hygiene, workplace safety, among others, well before vaccination campaigns on a global scale were ever possible. What the advent of vaccines and antibiotics did, though, was to erase social fears of microbiology, thereby allowing us to forego behavioural sacrifices about how we can or should live. Vaccines and antibiotics vanquished death by turning it into a technological, economic, and distributive problem. The same cannot be said for climate change.

While newspapers are filled with heart-wrenching stories of pain and suffering caused by the current public-health responses to the pandemic, it is also evident, to varying degrees, that such measures are proving effective at curbing and slowing the rates and spread of infection. This pandemic is suddenly revealing to us that collective responses to protect humanity from natural dangers is extremely costly. However, the sudden immediacy of the death it is causing somehow makes the extreme (temporary) costs of fighting it more obviously worthwhile to bear compared to the lower, but longer-term costs that would be required to regularly meet the commitments made in 2015 in the Paris Accords. It is also revealing how ill-suited the current international order is to coordinating collective action on a global scale, even in response to a crisis that is so specific and urgent as the Covid-19 pandemic. However, if, for many the global political response to the pandemic has been insufficient, slow, and poorly managed, compared to global climate change it has been remarkable, leaving environmentalists and climate change activists alike breathless, envious, and thirsty to seize the opportunity and somehow harness, redirect, or repurpose that same energy and political opportunitytowards the infinitely more complex and difficult Anthropocenic challenge at hand.

Yet, what is almost certain is that the kind of collective behavioural changes that are required to achieve the modest goals of temperature rises of 1 or 2 percent will require far greater cost and even suffering than we have been witnessing and experiencing these past few months. And if any lesson is to be learned from this pandemic it is that it is the working classes, the poor, and the vulnerable who are routinely shoved to the front to bear the brunt of its worst effects. Joining doctors and lab technicians on the front lines have also been nurses, grocery store clerks, postal workers, pizza delivery drivers, public transport drivers, and slaughterhouse workers, who have been exposed to a greater degree of risk than those of us who can self-isolate and e-commute from home, not to mention the elderly, the chronically sick, and the homeless. Some exposed themselves to danger out of noble self-sacrifice for the greater good; while for others poverty or immobility left them with no other choice. This pandemic did not suddenly create social inequality in the world, but it has exposed its pre-pandemic structures and is worsening its effects.  This pattern is as ubiquitous in histories of past epidemics and pandemics as it is with natural (and un-natural) disasters. If mass collective action is the only way to respond meaningfully to climate change, then this pandemic is giving us a taste of how bitter that pill is likely to be, and for whom more than others.

In light of this, it is hard to imagine how in the balance of things this pandemic augurs well for our climate change futures. Strange as it may sound, we should savour our current fears of Covid-19, not to be masochistic, but to be mindful that the fears we should be feeling about the dangers that climate change poses should be magnified to a much larger degree than what we are currently feeling about this virus. Like Covid-19, climate change will make us all considerably poorer, and we can be sure that the poor and vulnerable will also suffer its worst effects. But at least we can hope that with a Covid-19 vaccine our children’s children will not have to worry about it as much as we do now (assuming, of course, that no other novel virus will emerge, which is extremely unlikely). We can afford no such hope with climate change, though, and must think about that entirely differently. 

* Many thanks to my colleagues Phil Paiement and Marie Petersmann for their valuable comments and suggestions.


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