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The Other Environmental Law: Climate Law’s Police Phase


Ted Hamilton is a Visiting Assistant Professor at Bucknell University, cofounder of the Climate Defense Project, and the author of Beyond Fossil Law: Climate, Courts, and the Fight for a Sustainable Future.

The fossil economy’s legal infrastructure — what I call fossil law — has emerged over centuries of economic growth and technological innovation. Policies designed to lower energy costs, increase industrial production, and expand the power of imperial nations were linked to laws that protect private property and immunize corporate shareholders against the risks of investment and the costs of environmental damage. Many of these laws originated in movements for social justice and individual liberty. But the means of emancipation can in time become the methods of control: legal principles once wielded against state tyranny are now often exploited to defend established economic power and to encourage ever-greater fossil-based consumption. Crucial to this enforcement function is an understudied, but central, aspect of environmental law: the use of state and corporate violence to compel the extraction and consumption of oil, gas, and coal.

Perform a simple thought experiment. Assume that the government heeded the warnings of climate scientists in the 1960s and that fossil fuels were deemed a danger to the public. Imagine armed officers arresting engineers at pipeline routes and mercenaries surveilling the movements of oil executives. Imagine counter-terrorism intelligence reports citing gas company stock prospectuses as evidence of threats to the social order.

This is not a state of affairs we should desire: the use of state violence is a crude instrument for climate justice, and one more likely to exacerbate conflicts than to resolve them. But the unlikeliness of the image emphasizes the absurdity of its obverse, which is our reality: sovereign power exercised in the interest of climate criminals.

Building the Fossil Legal Infrastructure

We can identify several antecedents to this situation. As Andreas Malm documents in Fossil Capital, there was nothing inevitable about the world economy’s shift to fossil fuels. Coal, the first widely-used fossil fuel, had been burned for centuries in Europe and China, but industrial applications did not emerge until the eighteenth century. This was a result of specific business strategies. British textile mill owners, who relied on cheap water power, began to grow frustrated with the seasonal fluctuations of rivers and the ability of workers at fixed mill sites to organize, walk off work, and control the rhythms of their labor. Seeking a situation more amenable to productive regularity, capitalists turned to coal. This energy source — which, after the invention of the steam engine, could power a mill at any time and in any place — offered consistent, predictable power. When transported into urban centers where pools of cheap labor were available, coal also gave owners the ability to favorably negotiate hours and wages. In short order, dirtier and more expensive coal proved a better lubricant of industrial efficiency than clean, cheap water.

Property rights were a fundamental enabling condition for this transformative shift to industrial coal use. Individuals were able to own machinery and the land on which to operate it. Capitalists were able to combine money into joint stock companies to buy expensive steam engines and workers’ time. If someone tried to break a work contract, steal a steam engine, or hold an investor individually liable for a company’s losses, the state would intervene on the side of the property owner. Michael Tigar, the noted radical attorney and legal historian, writes that, by 1750, “the fundamental changes in social structure, and new laws to define these changes, had been accomplished to the extent that the English bourgeoisie could take advantage of the innovations in technique and revolutionize the process of manufacture.”

Britain thus became the first home of fossil law by offering a legal structure favorable to the exploitation of coal. But fossil law was not only applied in the industrial heartland: Britain’s new economy depended on the reach of its empire. In the colonies, wealth was extracted from subject populations and sent home to be invested in new enterprises. Slaves grew cotton to be turned into textiles; this remained the case even after the United States gained independence and Britain outlawed slavery. As the global market economy expanded, and as industrialization spread from Britain, raw materials — including, in time, oil — flowed to Europe and the United States and facilitated ever-greater consumption.

Law was an important part of this order, too, even if we’re more likely to see the fundamental relation between colonizer and colonized as one of brute force. In the Americas, invading nations justified divvying up Indigenous lands with the “doctrine of discovery,” which gave legal title to the supposedly more enlightened Europeans. This doctrine still serves as one of the foundations of U.S. Indian law, which recognizes the federal government’s legal right to determine the fate of its Indigenous “wards.” In Latin America, Spanish colonizers and their descendants mostly ignored the 1512 Laws of Burgos that held Indigenous people to have human and property rights, preserving pseudo-feudal property regimes until the land reform wave of the twentieth century. Even after the wave of independence struggles in the nineteenth and twentieth centuries, the world continues to be largely defined by colonial legal relations, as nominally sovereign nations are held to agreements, backed by international law, that require the export of natural resources in exchange for development funds.

In short, the adoption of fossil fuels to power the world economy has depended upon a fossil law that arranges a particular type of market and enforces a particular balance of power. Violations of the legal rights of Indigenous people, poor people, and communities of color — and the assault and prosecution of those who resist — have always gone hand-in-hand with the development of new energy reserves. As the fragile structure of environmental and administrative law begins to fracture — fossil fuel companies encounter greater legal resistance to their exploitation of permits and regulatory processes, climate justice advocates expose the system’s inability to confront catastrophe — the once mundane business of infrastructure expansion has become a more naked assertion of force.

The Climate-Criminal Law Nexus

Anti-environmentalist alliances of government and private industry have grown in recent years, from the coordination between pipeline companies and Texas and Oklahoma state police during the battle against the Gulf Coast Pipeline to the whole-sale co-opting of the Coos County Sheriff’s Office in Oregon, where the Pembina Pipeline Corporation, seeking to build a natural gas export facility at Jordan Cove, purchased crowd-control equipment and funded the million-dollar budget of a special police unit devoted to surveilling and infiltrating activist groups. In many areas where battles over extraction take place, there’s no daylight between the fossil fuel industry, private security contractors, and law enforcement — a fact dramatically revealed in the Standing Rock conflict, where mercenary outfit TigerSwan targeted Water Protectors and their perceived “jihadist insurgency model.”

Since Standing Rock, government and private enterprise have grown more sophisticated in their approach to building pipelines and shipping fuel. Anticipating resistance to these projects, they secure political support from the highest state authorities while simultaneously targeting grassroots activists with laws that ban protests against “critical infrastructure” (pipelines, refineries, and ports) and with frivolous lawsuits that drain resisters’ money and time. For example, Oklahoma House Bill 1123, which served as the template for model legislation put forward by the conservative American Legislative Exchange Council, allows for up to a million dollars in fines for an organization “found to be a conspirator with persons” who have trespassed on or damaged critical infrastructure. Indiana’s SB 471, enacted in 2019, imposes a penalty of up to $100,000 for similar conduct — which could include words of encouragement, donating funds, or cheering from the sidelines.

We can view this wave of repression — climate law’s police phase — as the latest in a series, stretching from the deportations and speech bans of the Red Scare to the abuses of COINTELPRO to the early-2000s Green Scare and domestic War on Terror. Such a perspective makes clear that the climate justice movement’s legal strategy must grapple not only with the laws of global warming, but also with the laws of a warming world — a world in which entrenched fossil interests will not give up without a fight. For now, these interests enjoy the near-universal support of state power.

It’s crucial to note that the use of criminal penalties against climate activists can coexist with official state policies to reduce warming. As Joel Wainwright and Geoff Mann note in Climate Leviathan, most governments tolerate staid Earth Day-style environmental protest so long as it steers clear of confronting established interests. But when activists target nodes of economic power like Wall Street or the closed negotiating halls of the Paris climate talks, the police clamp down. As protesters become more adept at actually disrupting business as usual— whether in the massive coal mine occupations in Germany or in the London business district and transit shutdowns pulled off by Extinction Rebellion in 2019—official legal rhetoric shifts from talk of emissions credits and carbon capture to warnings of terrorist violence and heightened security measures.

Overturning fossil law thus requires grappling not only with the inadequacies of the Clean Air Act or the limits of tort law, but also with the climate-criminal legal system nexus. As it happens, this is also the point at which many of the most promising aspects of a prefigurative law of climate justice emerge: theories of resistance to corporate and state invasion, the rights of nature, and the constitutionalization of environmental rights. For legal advocates and scholars committed to dismantling the fossil fuel system, the myriad environmental conflicts around the world are crucial sites of study and intervention.

Adapted from Beyond Fossil Law: Climate, Courts, and the Fight for a Sustainable Future (OR Books, 2022).