Nicole Rogers’ book: Law, Fiction and Activism in a Time of Climate Change
The trickster figure Loki, as depicted in the 18th Century manuscript Stofnun Árna Magnússonar á Íslandi.
In her 2020 book with Cambridge University Press, Nicole Rogers presents a masterful analysis of the narratives of climate change in three sources: climate activism, climate litigation and climate fiction. Seemlessly weaving through these three domains of action and narrative-building, Rogers offers an incredibly erudite, detailed and critical analysis of the narratives at work to lend meaning to our experience in a changing climate. Throughout the course of the book, Rogers engages with cases from Australia, the United States, the United Kingdom, the Philippines, Canada, Pakistan, Austria and the Netherlands (among others), and diverse types of climate activism, including the actions of Extinction Rebellion, the Knitting Nannas, the Value Turners, and protestors against the expansion of oil and coal infrastructure at Standing Rock and the Hambach forest. Her analysis oscillates back and forth between these actual forms of climate activism and legal mobilization and narratives found in fiction literature premised around a changing climate, such as in the work of Margaret Atwood, Barbara Kingsolver, Richard Powers, Maja Lunde and Cormac McCarthy. The result is a moving and provocative review of the many frameworks through which those encaptured by the chaning climate seek to make sense of it and understand its implications on social and political order, responsibility and what consitutes ‘reasonable’ or ‘necessary’ action.
Climate litigation takes a prominent position in the early chapters of the book, with attention given to a diverse range of litigation proceedings, including human rights-based approaches, anti-coalmine litigation in Australia and consumer and corporate law-driven litigation against oil and gas companies. Rogers’ analysis offers a compelling account of the shared and differentiated narratives found across the diverse field of climate litigation. In addition, she situates these legal mobiliziations in a critical light, questioning the efficacy of litigation against oil and gas companies: “…the awarding of damages, even in large amounts, does not necessarily assist with or promote mitigation efforts. Mega-corproations are unlikely to cease their profit-making activities in the event that damages are awarded; it is more probably that these activites would intensify to offset the costs of litigation. Attaching monetary consequences to corporate contributions to climate change is still, in essence, playing by the rules of the marketplace and corporate tricksters are skilled at playing by and with these rules” (p. 56-7). The analysis of climate litigation found in Chapter 2 offers challening food for thought about the perceived role that litigation can play in fundamentally transforming climate governance and securing justice for those at the frontlines of climate adaptation and mitigation.
The figure of ‘tricksters’ and their ‘dark play’ is perhaps the most innovative contribution that Rogers cross-reading of climate action / legal mobilization and climate fiction offers. Quoting from the literary theorist Richard Schechner, dark play is depicted as occurring “when contradictory realities coexist, each seemingly capable of canceling the other out” (p. 14). This is the type of action in which the ‘trickster’ - a popular trope in literary fiction - excels. In its use of dark play, the trickster “subverts order, dissolves frames, breaks its own rules, so that the playing itself is in danger of being destroyed…The inversions [of dark play] are not declared or resolved; its end is not integration but disruption, deceit, excess and gratification” (p. 14, again quoting Schechner’s work in The Future of Ritual). Others working on climate change and the Anthropocene have also noted the rising importance of the figure of the trickster, notably Donna Haraway and Timothy Morton. Rogers uses this trope to characterize, among others, the activism of Bidder 70 - Tim DeChristopher - an Economics student who engaged in a novel form of climate disobedience by bidding for oil and gas leases in Utah with no intention of following through on the purchase of the leases after winning the auctions. Yet, the trickster is a figure that works across ideological spectrums, and is thus also used to describe the distorted arguments that Carbon Majors often rely upon to justify their actions. For example, Rogers notes that the rights-turn in climate litigation is ironic in light of the many uses of rights-language - predominantly property rights and freedom of speech rights - used by oil and gas companies to defend their operations.
Personally, I found the trickster concept must provocative for orienting my conflicting views on corporate law approaches to climate litigation. In following the development of shareholder activism as they attempt to decarbonize oil and gas companies, I have been caught up on an uncomfortable narrative upon which these mobilizations are premised: the (financial) vulnerability of the Carbon Majors to a changing climate. As we increasingly witness just how drastic the consequences of climate change are for vulnerable and marginalized communities, the deployment of a narrative of vulnerability to described a company like Shell or BP seems far fetched and potentially harmful to the climate justice movement. However, if understood as an action of a ‘trickster,’ one might better appreciate the goals of such actions in so far that they seek to willfully disrupt the assumptions and values upon which Carbon Majors base their decision-making. They tap into the powerful position of shareholders within corporate law frameworks to question the very importance of short-term financial performance that is presumed to be the very basis of shareholders’ interest.
Finally, Chapter 6 engages with the limits of reason(ability) in climate legal activism by discussing the invocation of the necessity defense by legal activists utilizing various forms of civil disobedience. As Rogers states, “arguments of necessity highlight the subjective and, indeed, contingent nature of reason and lawfulness, and the limitations of these concepts in the face of the climate crisis” (p. 169-170). Yet, remaining true to the nuanced and critical approach taken throughout the book, she also notes that the invocation of necessity lies uncomfortably within the discursive domain of the ‘state of exception’ in which climate change, like its War on Terror precursor, offers an excuse for both public authorities and private citizens to utilize extra-legal powers, that is, to act violently and to retrospectively justify that violence as lawful for reasons of the exceptional circumstances posed by climate change. As such, Rogers provocatively notes how the necessity defense in Bidder 70’s case and other instances of climate disobedience is connected by common narrative to the concerns of raising climate authoritarianism.
If you are interested in or working on climate activism and climate litigation, I would offer the strongest recommendation of this book. It is thorough and challenging, provoking the reader to consider the many shapes and forms of narratives at work in legal mobilizations around climate change. As such, it is asking us to consider how these legal actions are offering imperfect frameworks of meaning for our emergent and continued forms of existence in the Anthropocene.
- Phillip Paiement