29 May 2024
All over the world a relatively few big companies are operating businesses that require the burning of fossil fuels and result in the emission of greenhouse gases (GHGs). These emissions are collectively causing severe harm to our environment. So far, the efforts of those trying to make it stop have failed. It’s time to try something new.
Activists in different jurisdictions have tried confronting the emitters by challenging their plans to build additional facilities and calling for the closure of those already existing. Some use the courts. Others try legislation. Still others try to shame the polluters into stopping. Little has been effective. Even when these efforts result in victories against one emitter or a few facilities, it doesn’t solve what is a global problem. Carbon continues to accumulate in the atmosphere.
Once a year opponents of climate change meet at a Conference of the Parties (COP) to discuss the crisis, but they haven’t found a viable strategy to make the emissions stop. They fail to recognize that there is another contributing source to the problem. Working together to eliminate that source will be much more successful than fighting emissions, jurisdiction by jurisdiction or company by company.
The contributing source is that all emitters are run by people who are told by law to continue emitting. That law gives them an excuse to keep emitting and justifies it when they do.
Corporations everywhere are formed under laws which tell directors to act in their company’s best interests. This can’t be interpreted to include closing, and writing off huge investments in, GHG emitting facilities which are operating profitably and legally (e.g., electricity generating stations or factories manufacturing cars with internal combustion engines). Instead, existing law excuses and justifies keeping these facilities open.
Climate change is a global problem. It requires a global answer. It is no longer acceptable that a relatively few corporations be allowed to cause severe harm to our environment. To make the emissions stop, we can no longer ignore the law which is encouraging them to continue.
Corporations only exist because the corporate law provides them with a charter and a license to operate. As part of that license, the first duty of directors should be to never allow their company to continue causing severe harm to the environment. Companies can do both: protect the environment from severe harm and make money. Most companies do. Those that no longer can do both should have their charters revoked.
The duty of directors in every jurisdiction must be amended to include a duty to refrain from causing severe harm to the environment. This duty must have priority over the duty to act in the company’s best interests.
When directors’ legal duty is amended, the emitters’ directors will be obliged to make the emissions stop. The existing encouragement, excuse and justification to allow the emissions to continue will be eliminated. Until then, the accumulation of GHGs in the atmosphere will continue, and corporate directors responsible for letting it happen will be legally justified in their failure to make it stop. It’s that simple.
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