The announcement of the new Ontario Liberal government cabinet included one new item that caught my eye. The Liberals have appointed Glen Murray as Minister of the renamed Ministry of the Environment and Climate Change. How governments respond to climate change (or fail to do so) has great significance for labour markets, business, workers, and unions. Climate change will kill some industries and spawn new ones. Millions of workers worldwide will be affected. These are matters of great concern for labour law. Labour and environmental groups have had some success in forging common ground on ways forward to deal with climate change and still protect the economy. Environmental law scholars have proposed new legal fields like Climate Change Law, but they tend to ignore labour law and labour markets. Surprisingly, labour law–its lawyers and academics–has so far had little to say about climate change, and law’s response to it. Climate change law is considered to fall within the boundaries of environmental law and
Just Transition Law as a New Legal Discipline?
beyond the scope of the basic stuff of labour law, such as employment standards and collective bargaining law. This perspective needs to change.
I’m working on a project that aims to bring environmental law, environmental justice law, and labour law together. It involves the development of a new legal field: Just Transitions Law.
The Birth of Legal Fields
Legal disciplines are manufactured by legal scholars. In Canada, labour law did not exist as a legal field until Bora Laskin decided in the 1940s to invent it, by cobbling together aspects of contracts, torts, administrative law, property, and criminal law that related in some way to work. That movement spawned labour law courses and texts, specialist labour lawyers, and labour law chapters in bar associations. It also led to new ways of thinking about law and workplace justice, because by studying labour law, we see patterns in the law that are missed when we treat the law of work as just random incidents of contracts, torts, and property. Labour Law is not just descriptive (here are the laws), it is also normative (the laws should do this). As my colleague Brian Langille has said, ‘labour law’ includes a theory of justice.
Environmental Law is an even newer invention. It was created in the 1970s by scholars interested in how regulatory law interacts with environmental concerns like pollution. It too involved an exercise of surveying the legal landscape for laws that influence ‘the environment’ and then cobbling them together under a common banner. When we recognize new legal fields, we not only raise the profile and influence of lawyers, academics, and policy-makers in the field, but we also begin to see our legal world differently. Problems and patterns before missed are now identified, as are new ways of addressing complex challenges through law.
Both labour law and environmental law involve balancing economic interests (more jobs) and social interests (decent jobs, cleaner environment). However, the two fields are not natural allies. The social interests they seek can sometimes conflict. For example, decent, high paying unionized jobs in coal mining and oil fields may satisfy labour law’s goal of producing decent jobs, but conflict with environmental law’s aim of a cleaner environment. This is the foundation of the age-old ‘jobs versus the environment’ tension.
However, climate change brings the two legal fields together in interesting new ways. A failure to respond to climate change through legal policy will severely damage the social objectives of both fields. It threatens the future of decent jobs and of a clean environment. A proper response to climate change must be concerned with both of these important policy objectives. This can only be achieved if we bring together the lessons of labour law and environmental law, rather than continue to treat the fields as two solitudes, as distance relatives who rarely communicate except to squabble. The way to do this is to remap the boundaries of legal disciplines as we did in the 1940s with labour law and the 1970s with environmental law. The organizing theme of a new legal discipline would be “Just Transition”.
Just Transition is a concept initially developed by the labour movement to express the concept that the risks and benefits of transitioning to a lower carbon economy should be shared according to a theory of justice. A ‘transition’ involves proper planning to shift towards a cleaner economic model, and law’s role in shaping that transition. A ‘just’ transition demonstrates this move must be guided by a theory of justice that considers the distribution of harms and benefits through the transitional process. The idea of a just transition has recently been co-opted by such organizations as the United Nations Environmental Program and the International Labour Organization. However, the legal model that would implement a JT remains undeveloped.
“There appears to be an emerging framework that allows for a Just Transition to operate on several levels, ranging from the global-societal level down to workplaces and local communities. This framework is grounded in some well-established social practices in the face of job challenges, and is reflected in the ongoing work of the ILO, the trade unions, national and local governments, business and industry, and community-based organizations. However, it is a framework that has been structured around a principle and a goal. The principle holds that the costs and benefits of a transition to sustainability should be shared widely across society. The goal is to generalize this principle at the level of policy. Steps are being taken here and there to turn the Just Transition approach into reality, but there is still a long way to go before it becomes a policy norm.”
Surprisingly, labour lawyers and scholars are still largely absent from these discussions. Their voice could be instrumental, since we labour lawyers tend to know a little something about how law can be used to inject voice and social justice concerns into economic decisions.
Chapters in a Textbook on a Law of Just Transition?
Our new legal field Just Transition Law would reorganize existing legal boundaries in interesting new ways. When we look at the legal landscape through the lens of ‘Just Transition”, what laws interest us?
Certainly, the traditionally issues dealt with in labour law would still be of interest, since labour laws are one of the legal levers we use to produce ‘decent’ jobs. So too would we be interested in the core substance of environmental law (including water law, energy law, and climate change laws), which address such key measures as pollution and sustainability. However, we would also be interested in a range of other legal areas as well. A non-exhaustive list of legal fields that would be engaged in a law of just transition would include: tax law, property law, immigration law, corporate and securities laws, unemployment insurance laws, land use law, consumer law, Aboriginal Law, Constitutional Law, and Agricultural Law. Of course, not every law within these legal fields would concern Just Transition Law, just like not every property, contract, or administrative law interested the early pioneers of labour and environmental law. The initial challenge for Just Transition scholars would be to do this early mapping. What parts of existing legal fields are properly included in a law of Just Transition. The fathers (they were all men) of labour law and environmental law went through a similar exercise.
In doing this mapping, scholars would be guided by a theory of justice that recognizes that the risks, benefits, and harm flowing from climate change and law’s response to it will be unevenly distributed and that law should address this distribution. Scholars can debate what that theory should be and what literature and theories to draw on. For example, in a law journal paper I’m working on called Just Transitions Law, I have built on the work of Amartya Sen’s ‘human capabilities’ theory, among other theories, as a foundation for the new legal field. But there is a wealth of opportunity for scholars to draw on other theories and approaches.
In my forthcoming book chapter [‘A Transnational Law of Just Transitions’ in A. Blackett and A. Trebilcock, eds., Research Handbook on Transnational Labour Law (Edward Elgar, forthcoming 2015], I summarize the mapping exercise that involved in the formative period of a Law of Just Transitions:
Hence, on a map of Just Transitions Law [JTL], we would find legal issues traditionally associated with such disparate legal fields as labour law, environmental law, environmental and climate justice, as well as aspects of other legal fields that impact directly on the process of transitioning from higher to lower carbon economies, such as energy, trade, property, human rights, corporate, tax, and immigration law. JTL would require a redrawing of legal boundaries of the sort that sometimes occurs in response to important changes that strain existing legal taxonomies. The boundaries of JTL would be defined by: (1) its factual foundation (laws that influence the transitioning towards lower carbon emissions in response to climate change); and (2) its theory of justice (the pursuit of a ‘just’ and equitable distribution of benefits and costs associated with this transition).
We are in the early days of our discussion on Just Transition Law. If you’re interested, let me know. I hope to build a network, plan future conferences, and maybe a special journal volume in time.
In the meantime, I encourage our new Minister of Climate Change to have a drink with the Minister of Labour and to think about how their two portfolios would overlap if a policy objective were to pursue a Just Transition to a lower carbon economy. They may find much to discuss.
Questions for Discussion
Would you be interested in a university course called “Law of Just Transitions”? What sorts of materials would you expect to read in that course?
Do you see any benefit in organizing a legal field called “Just Transitions Law”?