[Here is the text of a blog post I wrote that was originally published this week on Yale Law School’s Law and Political Economy Blog. It is my contribution to a symposium on the subject of Just Transition in the move towards a lower carbon economy]
The Contested Boundaries of Just Transitions Law
Written by David Doorey, York University
In 2014, I was invited to join a research project funded by the Canadian government now known as Adapting Canadian Work and Workplaces to Respond to Climate Change (ACW). As the only labor lawyer involved in the project, I had no idea what to say. How would climate change affect labor markets, and what if anything might labor law have to say about it? Insofar as climate change threatened to disrupt patterns, structures, and the distribution of work, labor lawyers had, at that time, paid the subject little notice.
Labor unions, by contrast, had long been alert to the potential for major disruptions caused by climate change and related policy responses. Forward thinking labor leaders developed the concept of a “just transition” decades ago to describe and advocate for policies that would assist fossil fuel workers and their communities as their jobs were phased out in the shift towards decarbonization. Those policies had two principal aims. First, they focused on providing financial support to workers who were displaced, either through extended unemployment benefits or bridged pensions for older workers. Second, they sought to create new economic alternatives through re-training for younger workers, job opportunities in new green industries, and seed money and infrastructure spending for communities as they transitioned away from dependence on fossil fuel jobs.
For my contribution to the ACW project, I engaged in a thought exercise. The idea was to imagine the normative agenda and empirical boundaries of a legal field organized around the labor movement’s concept of just transitions. If we developed a textbook called Just Transitions Law, what content would we include? I argued that Just Transitions Law would be guided by three normative claims:
- Climate change poses a serious global threat to humanity and the planet that market forces alone will not redress.
- Public policy should transition to greener, lower carbon economies.
- Governments should seek through law and policy to distribute the harms and benefits of climate change in an equitable manner.
The “law” in Just Transitions Law would comprise both (1) “transitional” legal strategies to encourage and guide the decarbonization process, and (2) laws that seek to ensure that transition is a “just” one. The former suite of laws would draw from environmental, energy, tax, Indigenous, and land use and property law, among other legal fields. Since I was focused on the labor movement’s understanding of just transition as policy redress to aid affected fossil fuel workers and communities and on my assigned topic of “labor law and climate change”, in my discussion of the latter category—laws that seek a “just” transition—I emphasized laws that have traditionally targeted labor market justice. In other words, labor laws.
However, over the past decade the concept of a just transition has expanded far beyond its roots in the labor movement’s concern for protecting displaced fossil fuel workers. In recent years, a just transition has been used to describe almost any claim for climate, environmental, energy, restorative, migration, and intergenerational justice. For example, McCauley and Heffron define just transition as a fair and equitable process of moving towards a post-carbon society “for all individuals and communities,” not merely a concern for workers and communities directly impacted by phasing out fossil fuels. As Ann Eisenberg has observed, this “broad concept of a just transition… calls for a grand restructuring of societal inequality.”
A question arises though whether this much broader understanding of just transition risks stripping the term of any practical policy value. If “just transition” is a generic term to describe the policy objective of every conceivable climate-related justice movement, then does the concept lose its usefulness as a framing concept to guide policy and discourse? This is not a purely academic question. Definitions and concepts matter because they shape political and policy discourse and influence how we conceive of the problems we face and who gets a place at the table when solutions are discussed. When governments, NGOs, corporations, academics, and think-tanks argue for a ‘just transition’, what precisely do they mean? What theory of justice motivates them? Finally, and importantly, how do we resolve conflicts and tensions that arise amongst competing justice agendas?
The potential for conflict between different justice movements—e.g., labor justice, climate justice, energy justice, intergenerational justice, restorative justice, migration justice—is readily apparent. Each movement tells a story about distributive and participatory injustice related to and arising from environmental harm and climate change as perceived through a particular critical legal lens. The justice movements share much in common in the sense that they have roots in bottom-up social movements that push back against prevailing social and economic power structures. However, that does not mean they always share the same goals or vision of justice; sometimes the goals of these justice movements will conflict.
To provide an obvious example, programs that grant displaced fossil fuel workers privileged access to new “green” job opportunities make perfect sense within the logic of labor justice, which emphasizes harm to fossil fuel workers and their communities caused by the transition away from the industries that provided jobs and prosperity for generations. This narrative is reflected in the recommendations of the Canadian government’s recent “Task Force on Just Transition for Canadian Coal Power Workers and Communities”, which unsurprisingly emphasized the needs of coal miners and their communities. However, from the perspective of any number of other justice movements, the claim that unionized, historically well-paid, mostly white male coal miners should be given special preference in the design of transitional policies over historically disadvantaged workers and communities would be hotly disputed.
The broader understanding of just transition as an umbrella term to describe all arguments for “justice” in the decarbonization process encompasses the labor justice narrative but recognizes too that there are other, sometimes competing and compelling justice narratives and logics that must be considered at the level of legal policy and implementation of just transition strategies. In this broader application of just transition we require a theory or framework for mediating competing justice claims.
We can think of the recommendations of the Coal Power Task Force as comprising one small component of a much broader global social justice project that seeks to re-imagine how the economy functions and for whom. A recent report by the think tank Canadian Centre for Policy Alternatives (CCPA) described policies that aid displaced fossil fuel workers and their communities (the original just transitions concept) as reactive just transition and policies that seek to plan for and ensure a fairer distribution of harms and benefits associated with the decarbonization transition that considers equity more broadly as proactive just transition. A just transition policy framework requires both. This approach has the benefit of identifying explicitly the difference between the original narrow and subsequent broader meanings of just transition. “Just Transition”would be the term used to describe the entire set of reactive and proactive laws and policies implemented in pursuit of a more just decarbonized economy and society.
On the other hand, some writers, such as Professor Eisenberg, have advocated for just transition to retain its original narrow meaning. Eisenberg argues that the inconsistent and competing use of just transition is confusing, and that the “specificity [of the original narrow use of just transition] gives it potency” and clarity, whereas the broader usage, “while important, seems redundant alongside comparable but better-known concepts, such as climate justice and energy justice”.
Professor Eisenberg and the CCPA offer two quite different frameworks for thinking about the relationship between the original narrow approach to just transition as a set of policies to aid affected fossil fuel workers and their communities as their jobs are phased out, and the broader meaning in which just transition is an umbrella term to describe a broad movement to construct a more just and inclusive post-carbon global economy. What the two frameworks share is an explicit acknowledgment of the narrow and broad understandings of the meaning of a just transition.
This acknowledgement is helpful because there’s a risk that the various justice movements will continue to advocate for their particular understanding of just transition within their own disciplinary silos unaware of, or uninterested in, other sometimes competing narratives. This possibility creates the risk of conflict (like the well-known “jobs versus the environment” tensions between labor and environmentalists), but also the possibility of missed opportunities for cooperation in advocating policies that can improve the lives of marginalized communities. Even a “just” transition will produce winners and losers, and law and legal policy will play an important role in determining that distribution. A theory or framework is required to guide decisions about how law can and should resolve competing justice narratives. This requires academic disciplines and justice movements to look beyond their usual boundaries to build a multi-disciplinary, multi-stakeholder dialogue around the creation of a more just, post-carbon society.
This is no easy task, but a shared understanding on language—on what we mean by a just transition—seems to be a necessary first step. My own thoughts on this topic are still evolving. However, I am inclined to believe that we cannot put the genie back in the bottle and that the original narrow meaning of just transition expounded by the labor movement has been overtaken by the broader application of the term. If this is the case, then “just transition” today describes a broad coalition of justice movements linked only by a common belief in the need for a transition towards a cleaner, lower carbon planet that is guided in its policy and planning by a theory of justice. At present, though, there is no shared, unified theory of justice that defines just transition. Instead, just transition is inhabited by multiplesometimes complementary, but sometimes conflicting justice movements and justice narratives, including labour justice, environmental justice, migration justice, climate justice, energy justice, and restorative justice. An important challenge for “just transitions scholars” moving forward is to develop an overarching theory of justice that helps to explain how these various justice movements relate to one another and how just transitions policy can reconcile competing justice narratives as we transition towards a post-carbon society.