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Article Excerpt
Introduction
I. Cities, Shantytowns, and Extra-Legal Settlements A. The Neglect of Cities B. Defining Interests Within Cities II. Consequences of not Hearing from Cities in Climate Change Debate III. Refocusing the Climate Change Debate and Norm Articulation by City Voices A. Who Is Heard in Climate Change Discussions B. Towards New Governance Norms: Some Benefits of Listening to Cities and Shantytowns 1. Adding Unheard Voices 2. Proposals for Infrastructure and Land Reforms: Local Thinking to Aid Global Action 3. Focus on Environmental Justice in Climate Change Governance IV. The Search for a Solution A. The Example of Participatory Budgeting B. Promoting Citizen Participation in Distributive Justice Decisions C. Effectiveness of Decisions D. Participatory Democracy and the Accountability of Elected Representatives
INTRODUCTION
The effects of climate change on the world's cities and the people who live in them are not subjects that have received a great deal of attention, at least not in isolation from other climate change effects. Climate change effects tend to get considered in continental or regional terms: melting ice caps, agricultural crop losses across vast swaths of land, and shoreline loss that will inundate sub-continents. (1) Alternately, the discussion tends to focus on behavioral change, again at the level of entire national populations, suggesting that countries must consider using cleaner energy sources, producing cleaner-burning vehicles, and providing incentives for citizens to insulate their homes better. (2) Many, if not most, commentators seem to endorse the view that resolution of climate change challenges should be addressed at the global level and enforced by state parties pursuant to global accords. (3) More recently, there has been some discussion of the inequalities that climate change will exacerbate. Crudely put, the analysis posits that poorer nations, especially those in Asia and Africa, will become poorer, while the richer nations will--if they do not become richer--suffer fewer of the negative consequences of climate change. (4) In light of these differential climate change effects on poorer nations, some analysts have explored the probability of increased civil strife. However, even when the literature examines effects of climate change on civil strife, the analysis tends to address national roles and bilateral or multilateral national responses. (5) Furthermore, when land use changes are discussed, urban land use is typically excluded from consideration. The focus tends to be on deforestation and agricultural land. (6)
This debate strikingly neglects what is arguably the dominant demographic shift of our era, namely the global trend towards urbanization--the move to mega-cities. As the United Nations Population Fund reports, in 2008, a majority of the world's population will live in urban areas. That number is expected to increase by another 50% by 2030. (7) In historical terms, it is impossible to understate the significance of this phenomenon, especially inasmuch as the vast majority of these urban immigrants will arrive with few resources and live in slum conditions. (8) Moreover, perhaps the characteristic feature of many such slums is that they are dominated by the informal economy, characterized by oppressive systems of patronage, corruption, and violence. (9) As the world gets hotter, this seems likely to create a--perhaps literally--combustible situation. (10) A host of factors, including environmental degradation, inadequate provision of environmental and infrastructure services, and limited employment opportunities are combining to turn many of the world's mega-slums into dangerous, violent places. (11) Moreover, there is considerable literature that has examined the relationship between increased urban violence and temperature rise. (12) It does not seem unreasonable, therefore, to posit a connection between climate change and urban violence, one that calls for attention to the role of cities in resolving the adverse effects of climate change. This Article does not (because it cannot) presume to establish as an empirical matter that climate change is a cause of urban violence. Rather, the connection between urban violence and climate change provides the point of departure for this Article. That is, in light of the empirical work establishing a connection between urban violence and both environmental scarcity and temperature rise, this Article proceeds on the assumption that as an environmental pressure (perhaps the greatest environmental pressure), climate change can only exacerbate these phenomena.
In light of this connection and its serious social and economic consequences, this Article seeks, therefore, to begin to define a role for cities and their inhabitants in climate change governance. Part I argues that if we fail to take into account global urbanization and its defining characteristics, namely extreme squalor and associated social ills, as a central feature of climate change policy, we face, as a Rio de Janeiro taxi driver said to me during the hot, dry, violent winter of 2006 in that city, (13) "um futuro bandido," literally "a bandit future." That is, we face a future where cities, the places where most of the world's population lives, will experience sustained and perhaps intractable urban violence and social disintegration, a development that can only hasten the separate but related harms caused by climate change on the world's human and biological populations. Part I also explains that the term "cities" does not refer only--or even primarily--to elected or appointed municipal governments. Rather, Part I endorses an expansive understanding of cities to include both metropolitan areas on the official grid and also the shantytowns and slums, the expansive informal and extra-legal settlements that define urban living for millions the world over.
Part II explores some of the consequences of the inattention of the climate change literature, and especially the mainstream U.S.-based legal scholarship on climate change, to incorporate a voice for the world's mega-cities and their extensive mega-slums in climate change governance. In particular, Part II argues that the failure to incorporate a voice for cities reinforces existing and seemingly intractable divisions in international efforts to resolve climate change. Thus, elites with carbon-consumptive behaviors in "developing" countries can hide behind their nations' demands for reductions in "developed" countries, while, conversely, responsible actors in "developed" countries get grouped together with the carbon-consumptive habits of their economic betters. Part II therefore suggests that the presence of voices representing urban populations would help reveal some of the self-interest on all sides and redirect climate change law and policy towards the implementation of more equitable solutions.
Part III then outlines some of the normative advantages of city-inclusive governance in the context of climate change regulation. Part III thus suggests how incorporating voices from cities in climate change governance will serve the larger goals of climate change regulation, including emissions reductions strategies and particularly the goal of adaptive management.
Finally, Part IV outlines possible solutions to address the concerns addressed in the previous parts, suggesting ways in which climate change debate and the search for legal solutions to help combat the phenomenon might take account of global urbanization. Specifically, Part IV suggests ways in which a voice for cities, and in particular those urban residents usually without voices--in local or national, much less international forums--may be heard, and their views taken into account in reversing the negative effects of climate change.
I. CITIES, SHANTYTOWNS, AND EXTRA-LEGAL SETTLEMENTS
This Part seeks to establish the value of cities, or portions of them, as actors in the resolution of global climate change problems. First and most evidently, cities merit such a role because of their established strengths as centers of innovation and wealth. (14) Cities are also, however, centers of inequality: it is this feature of modern cities that may be as important to addressing climate change as their more positive aspects, given that in reality poor urban areas are anticipated disproportionately to suffer the effects of global warming and associated ills. (15) It may also be observed that city residents are especially concerned with climate change, in light of the dizzying profusion of local initiatives to address climate change. (16) Yet, oddly, in the United States, the federal government appears to object to this phenomenon; attempts are underway to silence local efforts to respond to climate change, even in the face of federal inaction. (17)
A. The Neglect of Cities
The neglect of cities in international climate change debates and, in particular, in U.S. legal scholarship addressing climate change is not entirely surprising. As Gerald Frug noted in a classic piece nearly three decades ago, cities have largely been rendered powerless in U.S. legal discourse and practice. Frug noted the paradox that our "highly urbanized country has chosen to have powerless cities, and that this choice has largely been made through legal doctrine." (18) Frug further noted another paradoxical development: "[n]ot only are cities unable to exercise general governmental power, but they also cannot exercise the economic power of private corporations." (19)
In the context of global climate change debates, Frug's observation is instructive: in climate change, corporate interests are among those recognized as having a stake in resolving the problem, while cities are not. The corporate interest is often included because it is modified by the adjective "multinational," as if the mere fact of doing cross-boundary business merits inclusion with governmental stakeholders. At the same time, corporate interests are also included because they are "sectoral." That is, they represent manufacturers, industries, and features of modern life that have helped create the problem. Yet, as was the case when Frug wrote about the legal place of U.S. cities, in global climate change cities are not recognized as meriting similar influence and a seat at the table. This is true despite their being home to the majority of the world's population.
Frug's analysis of this private/public divide, and its privileging of private interests, helps illuminate the relative exclusion today--in a different context and nearly thirty years later--of city voices in climate change debates. That is, the exclusion of cities from a central place at the table in climate change discussions may be said to occur because of a fundamental distrust of them. As Frug noted of U.S. cities:
there is a widespread belief that although cities are supposed to protect the public interest, they cannot really be trusted to do so. This distrust engenders support for state and federal control of cities to prevent local abuse of power, curb local selfishness, or correct the inefficiencies resulting from "balkanized" local decisionmaking. City discretion of any kind evokes images of corruption, patronage, and even foolishness. This sense of necessity and desirability has made local powerlessness part of our definition of modern society, so that decentralization of power appears to be a nostalgic memory of an era gone forever or a dream of romantics who fail to understand the world as it really is. (20)
Many of these arguments, albeit in softer, less caustic form, are typical of the objections to local involvement in global climate change debates, where uniformity and efficiency become the watchwords to guard against a "patchwork" of competing and inconsistent local initiatives. (21) But Frug's observations ask us to consider whether this characterization is merited. Indeed, cities might have something useful to bring to the table when solutions to climate change are debated.
The evisceration of municipal power can be seen elsewhere in the world, if for different reasons. For example, Brazil's 1988 constitution theoretically gives equal power to the federal, state, and local governments. However, as lawyer and urban planner Edesio Fernandes has noted, "in Brazil, the decision-making process of urban questions was highly centralized by the federal government, which treated them from a merely techno-bureaucratic perspective." (22) Fernandes explains that this led to a depoliticization of urban policy and the resulting domination of public patronage and clientele patterns deeply rooted in Brazilian history. (23) Limited local control and limited participation in decisions affecting land use and environmental management can be noted as well in anglophone Africa:
[I]n many African countries local elected councillors [sic] have little or no say in planning decisions which are controlled by central government. Equally, there is no public participation in the making of plans, or of decisions on development control. The elitist nature of planning law in Nigeria is therefore paralleled throughout anglophone Africa and has been extensively commented on by lawyers. (24)
To be sure, the limitation of the power of cities, and particularly of popular representation within cities, may derive from different root causes. In the United States, Frug argued that cities were disempowered to promote private commercial interests. (25) In less developed countries, in contrast, this may be done as an imperative of development aid that refuses to wait for the cumbersome process of local decision-making, (26) while land use decisions in other countries may have been consolidated at the national level in order to secure power of ruling political elites. (27) Added to this reality, in much of the world, the populations of large areas of cities exist unheard, parallel to, or effectively operating outside of the official legal structure. (28) Yet elsewhere, customary, heterogeneous land use practices may interfere with the ability of either the government--national, state, or local--or the private market to express itself, so that customary systems co-exist, albeit uncomfortably, with the private market and governmental regulations. (29) In sum, however, the result is a silencing of local voices.
B. Defining Interests Within Cities
This begs the question, what "city," exactly, would be given a voice if we were to craft a participatory role for urban populations in the climate change debates? As noted at the outset of this Article, a majority of the world's population now lives in cities, most of them in conditions of distress--from moderate to extreme poverty. (30) An additional feature of much of this land occupation is that it can be characterized as extra-legal. That is, vast swaths of the slum settlements that constitute the living conditions of the world's majority exist outside of the formal state in which they exist. In practical terms, this can refer to those millions who live in cities without access to municipal services like roads, water, and sewage, (31) and also for those who live in areas within cities controlled by violent criminal enterprises such that the areas are off-limits to the police, other public safety, and municipal services. (32) This reality should give pause to those making climate policy at the national and international level; the views of significant portions of the global population may not be given voice at those decision making levels. (33) Surely good public policy and effective legislation for climate change--or any issue of import--must take into account the views of those it seeks to help and whose behavior it will regulate. (34) At the same time, identifying appropriate representatives of those populations will be no easy task.
Consequently, official, legal governments cannot necessarily be understood to represent urban populations the world over. For many, the rule of law shapes daily life in only the most formal sense. (35) Therefore, some more pluralist model must be adopted to introduce urban voices--whether characterized as "local," "municipal," or "city" representatives--at the climate change policy roundtable. The fact that so much of the world's population remains effectively disenfranchised from the policy decisions that affect them indicates that all of us must demand a search for a more inclusive governance model, one that applies participatory as well as representative democratic principles to climate change governance. (36) In short, this is to advocate consideration of a pluralist model to reshape climate change governance.
Legal pluralism recognizes the diversity of existing judicial systems, often within the same society. Although pluralism does not necessarily maintain that all such orders are normatively justified (or justifiable), pluralism does, at a minimum, support a view like the following: I recognize the existence of a non-state legal order and also understand that this order may contradict the moral or political values of the larger political and social order where it is located. (37) Initially, legal anthropologists and sociologists turned to pluralism to defend the legal and social orders of indigenous and traditional communities. (38) More recently, legal pluralism has been used to defend the interests of what might be called the "urban disenfranchised"--that is, the urban poor of so many of the world's largest cities. (39) Interestingly, some research suggests that the legal orders observed and implemented in such communities often mirror the practices of the larger society (for example, in establishing land title and developing systems to mediate land conflicts). (40) A pluralist framework offers a mechanism to identify concurrent legal or social orders within nation-states.
In the climate change context, a pluralist model would permit urban interests to be identified and brought to climate change discussion. A powerful advantage of using such a model would be to help refocus the climate change debate away from the "developed" versus "developing" country distinction. (41) Such an effort would incorporate into climate change analysis and discussion not only questions of inequality between states but also inequality within states, comparing the behaviors of those who do not have and consume little within given countries against those who have and consume in those same countries. This will likely have the effect of demonstrating how the "haves" in the developing countries benefit from this inequality, revealing their role in producing climate change, while also identifying similar interests among the global poor, whether in "developed" or "developing" countries, including the heightened risks that the global poor face from climate change, a fact that has been extensively documented. (42) A likely consequence of thus redefining the appropriate parties in climate change discussions would be to deepen our understanding of the challenges of successful climate policy change in the mega-urban centers where most people now live, and...
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