Professor Christine Schwöbel-Patel is co-Director of the Centre for Critical Legal Studies at Warwick Law School. Christine’s current research projects focus on the themes of aesthetics and international justice, imperial rentier capitalism in the green transition, and trials of rupture. She is a Visiting Fellow at CRASSH until July 2024.
Notwithstanding vulnerable geographies and populations across the globe having long experienced the effects of the climate crisis, the reality of climate breakdown is now inescapable, even for the most privileged. Extreme weather events have become a regularity. Wildfires in Canada and Maui, flooding in Libya and India are only some of the more recent weather events of 2023, which saw the Northern hemisphere’s hottest summer on record. By far the largest driver of the climate crisis is the carbon emitted through fossil fuels, making the transition away from fossil fuels to a decarbonised energy system central to addressing the climate crisis. This change is broadly referred to as the green transition. Despite fossil fuel demand continuing to reach record levels, governments and businesses are introducing new legislation and policies under the banner of the green transition. International law, meanwhile, appears to be playing its part in the green transition through innovative law-making efforts and climate litigation to protect nature and vulnerable communities. However, this highly symbolic side of the mobilisation of international law hides the material continuities in the way in which international law is employed and mobilised to protect capital, capital accumulation, and wealth concentration in the green transition. A political economy analysis, complemented by an ecology perspective, is an urgent requirement for appreciating what in the green transition remains the same, prompting the need to speak of a green capitalist non-transition. To better understand the legal underpinnings of this non-transition, I propose the metaphor of the legal pipeline of the green transition.
Law and the green transition
What is the relationship between law and the green transition? From a national and regional point of view, law is increasingly mobilised as an incentive for consumers and businesses to decarbonise. Notwithstanding the UK government’s recent anachronistic rollback of its green targets, domestic and regional laws are focused on investing in clean energy with a focus on ‘de-risking’ of investments by ‘onshoring’ supply chains. This includes domestic legislation such as the US Inflation Reduction Act (IRA), and the EU’s regional response to the IRA, the Green Deal Industrial Plan. Green transition legislation and policies are by no means exclusively a prerogative of Western states, although the Global North continues to dominate global transition policies that extract value from Global South states. Brazil, China, India, Nigeria, and Saudi Arabia are among the states announcing policies and legislation to secure their transition through green industrial policies. At the very heart of the green transition – we are led to believe – is the drive for moving to electric vehicles, necessitating the securing (and securitisation) of certain minerals, which have been labelled ‘critical minerals’. Indeed, the green transition has, in an economic-competitive sense, morphed into a ‘race’.[1]
Against this domestic and regional legislation, international law’s role has mostly been framed in terms of environmental law and international human rights – as a protective force that is at the forefront of climate justice. Alongside widely publicised climate litigation efforts, including seeking an advisory opinion on obligations of states in regard to climate change by the International Court of Justice, the best example of this symbolism is the debate around the criminalisation of ecocide. This highly emotive debate, which gained enormous traction through the Stop Ecocide International campaign, seeks to make ecocide an international crime prosecuted by the International Criminal Court. According to this perspective on law and climate justice, national, regional, and international laws and lawyers are working towards minimising the effects of climate catastrophe through meaningful legal change, and ultimately to change the course of history, perhaps even to ‘save the planet’.
A green capitalist non-transition
However, what these views on change fail to spotlight are the continuities that are part of the so-called green ‘transition’, and the way in which international laws are at the heart of the more exploitative and invidious practices. By focusing on the symbolic side of international law – say, its potential to name and shame certain actors into compliance with protective law – the very material effects, say of international trade and investment laws to protect capital accumulation rather than to protect the planet, remain hidden. Continuities include the state and corporate drive for capital accumulation and the concentration of wealth, meaning an absence of redistribution; continuities also include the extraction of value from the capitalist periphery for the benefit of the capitalist metropole. International law, embedded in the legacies of empire and domination, plays a key role in enabling these continuities on a global scale. So long as we see international law as disruptive or protective of the planet, we miss these continuities, especially in ways that it is protective of capital.
Given the power of law in shaping social relations, in particular ones that are exploitative of other people and the environment, law should, as Lara Montecito Coleman argues in her forthcoming book Struggles for the Human be a site of struggle for alternative political economies.[2] One of the key areas to struggle over in an age of climate catastrophe is the role of law in extractivism – an extractivism is not only a problem of the fossil fuel industry but also of the green transition as it is currently understood.
Legal pipeline
The misconception about law as predominantly fighting against corporate and other forms of power raises the question whether we need new images, stories, and metaphors to understand what the relationship between law and capitalism (in the green transition) is. To make sense of the role of the law in sustaining the continuities of exploitative extractivism, I argue for the utility of the ‘legal pipeline’ as a metaphor. Rather than presenting the role of law as disruptive in the green transition, this metaphor suggests law acts as a network of pipelines laid at the frontiers of value extraction, which enable the smooth transit, accumulation, and concentration of capital. Legal pipelines make visible what is hidden in green transition narratives that promise economic and social change. International trade laws and investment laws are exemplary of the pipelines, laid in ground that has been prepared through the historical prioritisation of (private) property rights and the hegemony of global capital. Other international laws and agreements can also act as pipelines for capital flow and accumulation, such as the intervention of international criminal courts and tribunals that distract from land appropriation in favour of a largely symbolic global justice rhetoric, or intellectual property rights that prevent the redistribution of accumulated wealth.
In the green transition, one key site of extraction, and a place in which the state takes on a key role, is for critical minerals for electric vehicles. Cobalt, 70% of which is extracted from the Democratic Republic of Congo (DRC) in both corporate and artisanal mines, is one such mineral. The DRC as a frontier of green transition extraction brings into sharp relief that the power of states on the international stage remains deeply rooted in legalised colonial exploitative structures, which impacts the distribution of wealth in profound ways. Once states have allocated and re-arranged authority and rights over territory on a formal level, it is, explains David Szablowski, up to extractive firms to take up these rights and to seek to ‘make them real on the ground.’ Mining codes, mineral agreements, licenses, mining concessions, regulatory permits, and easements are the various legal instruments employed to support the flow of capital through the legal pipelines. These legal instruments are key in ensuring smooth transit, at great expense to the environment and local communities. In the DRC, much of this intermediary work is done by Chinese firms, who then take the raw minerals for processing and for selling on to corporate actors (many in the Global North), where the wealth is accumulated.
But the interests of the state and capital do not always converge. Through pressure from affected communities, or other political pressure, states might enact climate legislation that threatens certain corporate interests, therefore creating a blockage in the pipeline. One of the most potent means for enabling transit, and unblocking these blockages, are investor-state disputes, set up to protect foreign investor interests. Indeed, a recent report found that disputes between governments and investors involving mineral assets are growing rapidly.
The explanatory power of the legal pipeline
The legal pipeline as a law and political economy-ecology method aims at visually and analytically explaining five features of the relationship between law and the green transition:
- It places the green transition discourse firmly within the extractive sector, allowing for an analysis of the relationship between law and exploitation of land and labour for purposes of energy transition;
- It provides a means for understanding capital flow as value extraction and labour exploitation in the green transition to the point of wealth concentration, reaching beyond the idea of global value chains that end with the consumer;
- It offers a means to explain the frontierism at play in new areas of accumulation – notably including Greenland – and the role that law, in particular through property rights and enclosure, plays;
- Through the metaphor of the pipeline, an infrastructure historically employed by the empire, historical connections between the colonial past and the colonised present and the way in which law was mobilised to benefit colonisers is disclosed;
- It allows us to view the processes by which legal pipelines can be resisted, blocked, circumvented, and ‘blown up’.
Conclusion
The legal pipeline is of course a shorthand, a metaphor to capture some of the key dynamics of the relationship between law, capitalism, and so-called solutions or responses to climate disaster. It cannot by itself grasp all complex social relations of production, reproduction, imperialism, finance, and rentierism. However, it does offer a way of making visible some key continuities that are designed for the green transition to save capitalism, much less the planet. Struggling over these limitations of law, and our understanding of these dynamics, enables a clearer view on what a green transition that truly breaks from exploitative extractivism might look like that is worthy of the name ‘transition’.
[1] Ursula van der Leyen, President of the European Commission, stated in March 2023 about the green transition: ‘the race is on. The race on who is going to be dominant in this market in the future’ https://ec.europa.eu/commission/presscorner/detail/en/speech_23_1672
[2] Lara Montecino Coleman, Struggles for the Human (Duke University Press, forthcoming 2024) 16.
