By Robert C. Hinkley
21 January 2024
I suggested earlier that the public may be able to force legislators to enact a new law which will solve the climate crisis. To get public support, the change will need to be capable of being universally adopted, noncontroversial, straight forward, and simple.
Every government’s job is to protect the public interest. If government imposed laws cannot stop those who intentionally inflict severe harm on the environment or other elements of the public interest, then the public become the perpetual victims of those causing the harm. Worse, government excuses and justifies it.
It’s time to admit that’s where we find ourselves today. A few big corporations are creating the climate crisis and the governments of the world have shown little to no ability to rein them in. It’s clear where this will end if something isn’t done to stop it.
It comes down to the difference between governing people and governing corporations. Democracy was originally conceived to govern only people. Modern corporations with their size and technology did not exist back then. Individuals have little capacity or intention to severely harm the public interest. This makes it much easier for government to be effective. On the other hand, corporations have plenty of both the capacity and intention to cause severe harm. Capacity comes from their size and technology. Intention comes from existing law.
The corporate law imposes a duty on directors, the people in charge, to act in the company’s best interests even if pursuing those interests causes severe harm. This law is the same all over the world. This makes it a point of tremendous leverage. Change it and you can move the world in a way that Archimedes could only theorize about.
The duty of directors which was drafted in the last half of the 1800s, is no longer suitable or sustainable. It must be changed so there is never a time when a big company (or industry) is causing severe harm and government is helpless to make it stop. Government of, by and for the people can no longer allow companies the freedom to destroy the public interest until government is able to pass laws to make them stop. Directors of every company should be required to stop it from causing severe harm from the day that it is incorporated.
This shouldn’t be controversial. Does anyone think big companies should be able to continually cause great damage to the public interest that the law is powerless to stop? Look where it is leading us regarding the emission of greenhouse gases.
It should be the legal duty of company directors to stop their company whenever they find it causing severe harm to the environment or another element of the public interest. Changing the duty of directors to impose this obligation is not just desirable. We’ve got to the point where it is imperative.
In Part III, I’ll discuss what this change would look like.