Constitutional Law and Climate Change (LAWS90303)

The Climate Crisis is the product of human activity and economic systems, pumping vast quantities of greenhouses gases into the atmosphere. It is also the product of political systems that have been unable to restrain or alter these practices. As much as the Climate Crisis is an environmental failure, it is also a governance failure. Indeed, the Climate Crisis raises serious questions about whether dominant constitutional structures are fit for purpose. Constitutions have been a barrier to effective climate action by all branches of government. In this course, we examine these issues through the lens of constitutional law and theory. 

This subject examines the role that constitutional structures and adjudication have played, or could play, in addressing the failures of climate governance, especially in relation to climate mitigation. We will adopt a global and comparative approach with case studies selected from around the world.  

We begin by understanding how institutional failures at both the domestic and international levels have brought us to this point, drawing on an in-class simulation of the Paris Agreement. We then examine structural features of constitutional law and climate change, examining the role of different institutions, as well as federalism and emergency powers. Next, we move on to the question of climate and environmental rights, examining both their promise and peril. We end with reflections on the next steps that constitutional designers and judges might consider in redesigning or interpreting constitutions in the face of the Climate Crisis. 

Intended learning outcomes

A student who has successfully completed this subject should be able to: 

• Select, interpret, and apply the theory, methods, concepts and practice in comparative constitutional law, and how they relate to climate change.
• Evaluate the role of constitutional law in producing climate policy, including both failure and success. 
• Analyse and explain key themes which run across the course, such as the role of constitutions in structuring state institutions; the challenges associated with democracy and climate change; the perils and promise of constitutional rights; and the links between domestic constitutional law and international law.
• Examine the tension between contextual constitutional design and adjudication in particular national contexts, and relate these to general themes in climate change across comparative case studies.
• Engage critically in debates within constitutional law and climate policy, including tensions between Global North and Global South approaches (including global distributive justice challenges).

Generic skills

• A capacity to engage in debates on climate policy at an advanced level.
• The ability to think conceptually and analytically across different legal systems, including their responses to climate change.
• Advanced skills in researching constitutional law issues across different legal systems.
• An ability to think creatively about problems and solutions to the challenges posed by climate change.
• Advanced skills in understanding and explaining issues concerning climate change and public law in sufficient detail to sustain an argument.
• An appreciation of how and why countries' constitutions, foreign policy positions and legal systems differ, including in their responses to climate change.