Dr Randall Abate – Climate Change’s Impacts, Global Governance Challenges, and Strategic Litigation Initiatives

By Deiniol Brown

Dr Randall Abate is the Assistant Dean for Environmental Law Studies at the George Washington University Law School in Washington DC. He has taught and held leadership positions at seven law schools across the US and lectured at many universities globally. Dr Abate has published six books, including ‘Climate Change and the Voiceless: Protecting Future Generations, Wildlife, and Natural Resources’, and is currently working on the second edition of this book, forthcoming in 2026. Dr Abate is a specialist on climate justice and environmental law and has written extensively on issues such as climate migration governance, strategic climate litigation, the parallels and synergies between environmental law and animal law, indigenous communities and climate change, climate change regulation, and greenwashing. In our discussion, Dr Abate covers issues such as the emerging crisis of climate refugees, the ‘rights of Nature’ legal movement, and the current state of climate legislation in the US.

Can you give an overview of the current global situation of climate refugees, and explain why they are an important group to legally recognise?

This is an important question, but we need to start with two threshold considerations. Firstly, the term ‘climate refugee’ is a controversial one. We have an existing legal understanding of how to define a ‘refugee’; someone who feel unwelcome in their home country, chooses to leave for somewhere more hospitable, and chooses not to return home. However, this is fundamentally different from climate refugees, who are often forced to leave and aren’t able to return, and so it isn’t a choice. Another term used is ‘climate migrants’, but this also suggests a degree of volition in their situation. The term ‘climate displaced persons’ has also been suggested, but this is a bit too neutral. So there is still a challenge in the law to find a term and definition for climate refugees. Secondly, another consideration is what role does climate change have to play for the climate displaced to be eligible for legal protection. Initially, the term ‘climate induced’ migration was used, but this has been revised to ‘climate related’, because of the complexity of these contexts, which means there is almost always a variety of factors contributing to creating ‘climate refugees’.

We have seen in recent years that climate refugees can occur anywhere, with the Los Angeles wildfires showing that even the wealthiest in society are not immune from the effects of climate change. However, the most vulnerable areas are the South Pacific, south and southeast Asia, and even India, which will become a destination hub for climate refugees from south Asia, yet still experiences a lot of internal displacement from climate change. There are a variety of causes of climate refugees, it can be through natural disasters such as floods and wildfires, or more long-term environmental degradation causing food and water insecurity. Because of its varied nature it is very difficult to coordinate a global response. Most climate refugees are internally displaced, but the number of transboundary refugees is rising, and this is when issues with international law rise to prominence. For example, how do we define statehood for those south pacific states that may lose all their territory in the next fifty to a hundred years? The issue of climate refugees is important because attention needs to be paid to these processes. Many of those most affected are vulnerable and have few legal rights when they are displaced.

Is part of the difficulty around treating this as a legal issue due to the nature of climate change itself?

Absolutely, climate change has been termed a ‘super wicked problem’, meaning it so complex that it is difficult to understand and almost impossible to solve, and its complexity is exacerbated by a lack of resources and time. This makes it very complicated to address through the law.

Another issue is the long-time horizons of many climate change processes. If an issue is short-term and relatively standalone, people are much better at addressing it, whereas climate issues often take decades, and can have unpredictable impacts. For example, the problem of stratospheric ozone layer depletion identified in the eighties was a simple cause and effect environmental issue, and we quickly identified the causes, and rectified our practices globally to fix the problem by producing a substitute for the chemical (CFCs) that was causing the depletion of the ozone layer. However, climate change as a whole is much more complex, and we have since found that the replacement for CFCs called HFCs, are the most potent greenhouses gases contributing to global climate change. This shows how sweeping and vexing an issue climate change is.

How could legal recognition of climate refugees help to better understand and address contemporary refugee crises?

An effective legal response to the problem of climate refugees has the potential to be very helpful. We know that climate displacement is likely to be a major issue going forward, so we need to implement change before it’s too late. In the US, we currently have laws that do not authorize government agencies to intervene in environmental crises until they have already happened, meaning that problems such as wildfires or floods can only be responded to, which is insufficient to address these occurrences. We can already determine the communities which are most vulnerable to climate change, and how we can prepare them for potential impacts, so governmental entities should be allowed to intervene proactively to help these communities before a crisis begins to dramatically reduce its negative effects.

Some cities in the US have already started branding themselves as ‘climate havens’, as they are less vulnerable to climate crises, for example there is ‘Climate-proof Duluth’, and others like Buffalo, NY and Cincinnati, OH. These initiatives identify where people can move in the case of climate crises, and provides some level of future planning for disasters to get people out of harm’s way before disasters strike. These ‘receiving communities’ for the climate displaced welcome the influx of new residents to boost their work forces and economies.

We also need the law to do as much as possible to keep people where they are, rather than dealing with people who have already been forced out. For example, many residents ofSouth pacific island nations like Vanuatu, whose territories are likely to be inundated by sea level rise in the next century, have no desire to move to another country when their home territory is no longer habitable. The law needs to do as much as it can to protect the territorial integrity of these states, as forcing them to move to another territory would be culturally devastating. In the event of them losing their territory, new law needs to create a framework for a nation-state without a defined territory. One solution that has been suggested is a digital territory in the metaverse, with institutions and services provided online. However, something more concrete will need to be implemented in the near future.

Has greenwashing by companies significantly helped to undermine the support for the climate action movement?

Absolutely, greenwashing has been very dangerous for climate action. Greenwashing has been a practice since the late eighties, when it started off with humble beginnings. It was coined in response to a customer going into a hotel and seeing a sign in their room telling guests to reuse their towels to save the environment. This is the epitome of greenwashing, as the hotel was only interested in saving money but was attempting to appeal to the green consciences of its guests. This sentiment has since scaled up in a dangerous way, with incidents such as the Volkswagen debacle, where the company designed a device to mask their vehicles’ emissions to present themselves as in compliance with vehicle air emissions standards when they were not.. There has also been the phenomenon of ‘humane washing’ since the eighties, with food products, for example cage-free eggs, where companies embellish the humaneness of their practices.

We now see this on a much larger scale, with companies and states publicly claiming that they are adhering to climate regulations, and hiding their violations and deceiving the public. We also see this manifesting in products and services. For example, the oat milk company, Oatly, which as a vegan I am a fan of, made some exaggerated claims about their reduced carbon footprint compared to normal milk, which turned out to be false. We have also seen it with airlines and carbon offsetting mechanisms, where airlines have claimed to be carbon neutral through using carbon offsetting. This is clearly absurd, as air travel is one of the most harmful forms of greenhouse gas emissions, and the level of carbon offsetting was nowhere near sufficient. Some other companies have made claims that they are ‘on track’ to meet their carbon neutral aims by 2050, without providing any evidence. Claims such as these would not be possible in the EU because they prohibit such claims without accompanying scientific evidence, but it is commonplace in the US.

In your book ‘Climate change and the voiceless’, you express the need for an ecocentric, stewardship-focussed, rights-based solution to climate change. What progress has there been towards taking an ecocentric rights-based approach to climate justice?

Since the publication of the first edition of this book in 2019, there has been enormous progress towards an eco-centric approach, with positive developments across the world in the ‘rights of Nature’ movement, especially in countries in the global south. This movement is to recognise the intrinsic value of non-human entities, like rivers and animals, and their right to exist independently of their relationship with humans. This approach has been around for a while, with Christopher Stone’s book Should Trees Have Standing? being published in 1974, which argues that humans shouldn’t have to have a relationship with an environmental feature for it to have a right to exist and be protected under the law.

There is a growing connection between the rights of Nature movement and people using it as a tool to combat climate change. People are realising that we can't use the traditional anthropocentric lens, and that we need to think more inclusively and interconnectedly about environmental concerns.

However, this is turning our legal framework on its head by giving legal recognition to non-human entities. These protections are therefore more difficult to enforce because of this, and there is a lot of controversy about their use. Many people in my generation of the environmental law profession are not supportive of this movement, and see it as a publicity stunt. There is also the issue of rights-based protections being very difficult to implement. For example, in Colombia the amazon forest was granted legal personhood in a famous climate justice court decision in 2017, but there has been little more done to stop deforestation there since the decision. We are still developing legal frameworks for these concepts, and it will take time to fully develop them and test them in the courts.

Looking at the US specifically, we have largely been dismissive of the ‘rights of nature’ movement. There has been some limited local recognition for orcas and salmon, and there was one case where a plaintiff sought to recognise the Colorado river with legal personhood, but the judge was so offended by the idea that he insisted that the attorney voluntary withdraw the case or face sanctions from the court.

Regarding your article ‘Commonality Among Unique Indigenous Communities’, since your writing of this article, how do you interpret the progress and status of environment protection for indigenous communities in the past decade?

Like the ‘rights of Nature’ movement, we are seeing progress but not as much as we need on the ground. Working with indigenous communities and their ‘traditional environmental knowledge’ has also been recognised as a valuable tool for climate resilience, and indigenous communities have been important advocates in the rights of Nature movement. There has been some effective strategic litigation on indigenous rights, such as a case in Kivalina, Alaska, which is a Native Alaskan community on a narrow strip of land that is predicted to succumb to rising water levels in the near future. The community brought two dozen leading multinational oil and gas companies to court over their significant contribution to global climate change, but the case was dismissed for lack of standing and jurisdiction. The community now needs to find a way to move their village inland, with a projected cost of $400 million, without any federal or state funding. They have also filed a petition against the U.S government with other indigenous communities throughout the U.S. in the Inter-American Human Rights Commission to seek to compel the US government to funding their anticipated climate relocation costs.

In other cases, youth climate activists have paired with indigenous plaintiffs to force states to support them against threats from climate change. For example in Montana, the state constitution includes a right to a healthful environment provision, and a case was brought by youth and indigenous community plaintiffs alleging that the state was infringing this constitutional right in its decision to pursue a coal-intensive energy supply in the state. However, in many cases there has been a difficulty in sufficiently tying the actions or inaction of states, or the practices of companies, to the threats the indigenous communities are facing.

How has the economic rise of the global south affected the protection of indigenous peoples?

In both the global north and the global south, there are significant legal protections ‘on the books’ for indigenous peoples. However, in the global south there is more advocacy around indigenous peoples’ rights, but there is also more marginalisation because of the economic realities of those states, meaning there is less capacity for indigenous rights protection.

There have been some other challenges in the global south regarding environmental and indigenous groups protections. REDD+ (reducing emissions from deforestation and degradation) is one example, where global north countries pledged to support the protection of forests and environmental resources in the global south. Due to corruption, in many cases countries in the global south would take the funding from the REDD+ initiative, but not protect the earmarked assets. This was either because the leaders of those states funnelled the money elsewhere, or were incapable of sustaining the institutional capacity to execute the REDD+ initiative, and with local officials instead misappropriating the funds. In some cases, states would even forcefully remove indigenous communities in forest regions with the justification of REDD+ protection for what was effectively a land grab.

Why has climate change and environmentalism increasingly fallen out of mainstream conversation in recent years and how can this be rectified?

I think its misleading to say it has fallen out of the mainstream. There is an aspect of climate denial in ascendence politically with some current leaders, and with Trump’s second term we are seeing the worst level of that here in the US.

I think we are seeing a change in communication on climate change mostly. There is currently lots of disinformation and poor messaging, and we need to get better at communicating to people that this is an immediate crisis but that there is still hope.

Science itself is also under attack in the Trump administration, which needs to be protected as the foundation for effective climate change legislation. The Trump administration is currently waging a slash and burn expedition through climate regulation in the US, withdrawing from the Paris agreement, and calling into question the federal recognition of climate change, seeking to overturn EPA’s endangerment finding from 2009. The US needs to be a leader in this area, and the way it is now stepping back from this will have global consequences.

What will be the impact of the relegation of the climate change debate in the US on climate regulation both domestically and internationally? What could be the broader social impacts?

The US used to be a leader on climate change and similar issues, such as it was in the effective global response to stratospheric ozone depletion. When the US began to implement the 2007 supreme court decision on the need to regulate carbon dioxide emissions as a pollutant under the Clean Air Act in 2014 in the form of the Clean Power Plan, China followed suit one week later, which shows how important the US is for guiding global practices, and how catastrophic the failure of leadership can be. There is a role that the US plays which is larger than it deserves, but when it is deployed responsibly it can have significant global benefits.

What are the prospects of global climate regulation without the US?

We have seen leadership on the global stage without the US on climate change before in the first Trump term, and even under George W Bush. Even democratic presidents of the climate change era (Clinton, Obama, and Biden) weren’t nearly the global leaders they should have been on climate regulation under their administrations. We will see this global governance again now without the US in the second Trump term. We have also seen, in reaction to this, an increase in NGOs using strategic litigation to further their aims. In the first Trump term, the climate justice movement really galvanised against Trump, and we need to do the same thing at an even more ambitious level this time. Within the US, there is potential to work with progressive states like California New York, and New Jersey, where these states can use their own substantial economic power to improve climate governance at a global level.