The intensifying physical and socio-economic effects of climate change, mainstreamed by political debates and scientific evidence on anthropogenic disruptions to the global climate system, have motivated changing legislation, regulation, litigation and institutions. But legal education is not keeping up; climate change has not yet been taught well and broadly in Canadian law schools. While a few schools have offered climate law courses, the majority have not done so in any systematic way. The unprecedentedly expanding demands from youth and students for aggressive climate action should call the attention of law schools to the roles they should play in combatting climate change.

A new subject on the legal curriculum

The United Nations climate regime has evolved for nearly three decades. The climate summits and international treaties under its auspices have inspired climate law developments at multiple levels. Regulatory innovations such as emissions trading have been frequently introduced to address the complexity of climate change and to mitigate GHG emissions.

Against this backdrop, climate law is becoming one of the fastest progressing areas for research. Legal scholars are enthusiastic about producing articles, monographs and textbooks. Dedicated journals like Carbon and Climate Law Review and Climate Law are subscribed globally. They elaborate diverse legal responses to the climate emergency, enriched by deliberate analyses of how to apply existing legal rules or create new ones to achieve climate goals. A wide variety of substantive topics are covered: flexibility mechanisms, climate finance, loss and damage, and geoengineering, among others.

Unsurprisingly, climate law is also permeating everyday legal practice. More and more law firms have created climate change divisions to consult on transactions and compliance issues: for example, the financial and regulatory risks that climate change is posing to insurance, pension and broader institutional investment. Climate litigation as an avenue to advance or hinder action on climate change is also picking up steam.

Recognizing climate law as a distinctive field may orient these developments in a coherent manner, enhance its strengths compared with the established disciplines and create support for it to be included in the legal curriculum. As a comparatively young professional community, climate law is in the process of maturation. It has been challenged for not investigating more theoretical questions and for its unformed methodology for guiding complex research. Because climate change is a topic that involves many branches of knowledge and affects a wide range of policies, researchers and practitioners of law in this area need a good sense of regulatory frameworks across different legal fields. Equally important is to reconcile and integrate insights from other disciplines, such as economics, political science, sociology and psychology, while distinguishing the unique role of law from that of the other disciplines in tackling climate change. All these opportunities and challenges should encourage law schools to create forums for sustained reflection on the achievements and constraints of climate law scholarship and practice.

How has climate law been taught in Canada?

Climate law teaching varies from one school to another due to availability of professors (including their expertise, workload and leaves), interest and demand from students and the influence of other stakeholders (such as law firms, legal associations and civil society groups) on the content and format of legal education. According to the 2018-19 course offerings found on the web pages of 24 Canadian law schools, climate law was offered as a semester-long course at the University of Toronto (U of T), Dalhousie University and Université Laval. Other schools more or less included the climate law topic in their environment-related courses. At this point, climate law teaching is still at an experimental stage in Canada.

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The course Climate Change Law at the U of T adopted a workshop format, allowing experimentation on various topics and interdisciplinary teaching and learning. The instructor is an esteemed climate law scholar, and guest speakers were also invited to most classes. A physicist and a political scientist led the discussions on climate science and climate governance and politics, respectively. Other speakers including environmental law professors and lawyers offered perspectives on climate policy choices and decisions and associated constitutional debates, the different sites and forms of climate law and its interaction with international trade and energy. In each class, the presentations from the instructor and speakers were followed by focused class discussion, to which students were expected to actively and critically contribute. Students were evaluated on their research papers, their performance in the class discussion and their reaction memorandums based on the required reading.

McGill University did not introduce a separate course. Instead, climate law was incorporated as part of Environment and the Law, and International Environmental Law and Politics. The latter course offered students the opportunity to simulate international climate negotiations in class and write an after-class essay reflecting on their experience of participation, and the negotiating dynamics, and the challenges and prospects for the UN climate regime. In addition, a one-credit workshop, “The Climate Crisis and Energy Pathways in Canada,” was held during the Law Focus Week in October 2018. Its pedagogical objective was to familiarize students with the legal and regulatory context for climate change and the energy economy in Canada. With interactive lectures and discussions and collaborative problem-solving activities, this course encouraged students to formulate and defend constructive solutions to deep decarbonization in Canada.

The U of T and McGill courses are only examples. Nonetheless, studying the substance and form of these courses as well as their pedagogical objectives and methods reveals what doctrinal and theoretical legal knowledge students may be exposed to in classrooms. The courses may also foster a valuable toolkit of research, analysis, writing, communication, and group-work abilities, to productively address complex policy challenges. While the two schools have realized the importance of interdisciplinarity by assigning reading materials of various disciplines and inviting experts with diverse backgrounds, there is still a long way to go to achieve interdisciplinary teaching, learning and knowledge production in the field of climate law.

The way forward

Canadian law schools must be part of the fight against climate change, as they occupy central roles in teaching future climate lawyers and scholars and in producing climate-related legal knowledge. For the many that have not yet realized their role in delivering and pushing forward climate action, my analysis can provide a starting point for discussing objectives, structures, pedagogies and institutions relating to climate law teaching and learning. Law schools should also engage with lawyers currently in practice, judges, policy-makers and the public as they develop their programs. They should consider as well various types of learning experience and teaching methods (such as service learning and interdisciplinary or even transdisciplinary teaching) that will prepare legal education to address the legally disruptive nature of climate change.

Photo: Shutterstock, by Lightspring

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Ling Chen
Ling Chen is a DCL candidate at the McGill University Faculty of Law. His doctoral research on climate clubs and the law is supported by the SSHRC Joseph-Armand Bombardier Doctoral Scholarship.

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