Climate Crisis Lawyering in Japan: A Few Exploratory Reflections

The following note relates to a research in progress on the emergence of Climate Disaster Law in Japan. Exploratory, it focuses the attention on the question of how practicing lawyers can address the many legal disruptions generated by a continuously rising risk of more frequent and higher-impact climate change-induced extreme events.

1 The University of Tokyo, Graduate School of Arts and Sciences. Contact: giraudou@g.ecc.u-tokyo.ac.jp 2 Ministry of the Environment, Annual Report on the Environment, the Sound Material-Cycle Society and Biodiversity in Japan 2020, White Paper, available in English at <https://www.env.go.jp/en/wpaper/2020/index.html>. 3 The White Paper on Disaster Management 2020 acknowledges that 'disasters caused by climate change are becoming increasingly frequent and severe' and reiterates that 'in the future, risks of climate disasters nationally and globally may increase due to the influence of climate change'. Cabinet Office, White Paper, Disaster Management in Japan (2020) 35-36, available at <http://www.bousai.go.jp/en/documentation/white_paper/pdf/R2_hakusho_english.pdf >. 4 Available in Japanese at <https://www.cedamia.org/wp-content/uploads/2020/11/Diet-declaration.pdf>. About 40 climate emergency declarations have been adopted at the local level; see on Climate Emergency Declaration and Mobilisation in Action the information page about Japan <https://www.cedamia.org/ced-regions-in-japan/>. 5  prevention, emergency response, recovery and rebuilding, as well as compensation and risk transfer becomes inadequate; against the backdrop of a potentially existential threat, there is an increasing need to integrate knowledge on disaster risk reduction with knowledge on climate change mitigation, adaptation, and loss and damage. What follows is part of a research in progress on the emergence of Climate Disaster Law in Japan. Exploratory, this note focuses the attention on how practicing lawyers can address the many legal disruptions generated by a continuously rising risk of more frequent and higher-impact climate changeinduced extreme events.

Climate Disaster Law as an Emergent Area of Legal Practice
A number of recent declarations worldwide have emphasized the leading role of practicing lawyers--who represent the legal interests and rights of all sides (the State, corporations, communities, civil society organizations and most vulnerable individuals)--in 'maintaining and strengthening the rule of law, and supporting responsible enlightened governance in an era marked by climate crisis' (Bernardes Neto 2020). The International Bar Association (IBA), commonly called the global voice of the legal profession, adopted in that sense a Climate Crisis Statement urging lawyers not only to take 'a climate conscious approach to problems encountered in daily legal practice', but also to advise clients 'of the potential risks, liability and reputational damage arising from activity that negatively contributes to the climate crisis', and to engage with 'current and future policymaking efforts to address the climate crisis'. 6 Climate change presents a number of conundrums for lawyers and defies the way they think about and deal with disaster risks. At present, the differing ways in which practicing lawyers can deal with legal disruptions caused by climate disaster risks are not clearly identified and remain insufficiently discussed. Expanding on Rosemary Lyster's work on the convergence of Climate Change Law and Disaster Law (Lyster 2016, Lyster et al. 2018) as well as on recent studies on crisis lawyering (Brescia and Stern 2021), my most recent research proposal explores the practical and theoretical conditions under which climate disaster risks arise as a new area of legal practice in Japan. The main question addressed is how, in 'an era of unlimited harms' (Ewing and Kysar 2011), different types of practicing lawyers utilize their expertise to shape the legal system's response to a continuously rising risk of more frequent and higher-impact climate change-induced disasters. In so doing, this research in progress seeks to elucidate whether there is a particular approach to climate 3 disaster risk that lawyers in Japan should embrace, or something distinctive about climate crisis lawyering that calls for specific skills and expertise.
By scrutinizing how attorneys, in-house counsels, as well as government lawyers deal with climate disaster risks in either their contentious or non-contentious legal practice, this research project aims principally at: 1) illuminating the opportunities for, and the barriers to the development of effective 'climate crisis lawyering' in Japan; 2) assessing the conditions under which good or best lawyering practices in the field of Climate Disaster Law are transferable across jurisdictions, in particular from Japan to other jurisdictions in East Asia. Such an inquiry implies not only to identify several lawyering tools, techniques, and patterns compellingly operating both through disaster law and across the mitigation, adaptation, and loss and damage issue-areas of climate change law; but also to delineate the corresponding complex skills, competences, and knowledge required in this area of legal practice.

Climate Crisis Lawyering and the Opening Up of Legal Reasoning
Precisely, one first question concerns the extent to which practicing lawyers can manage the scientific information available to ground actions in climate emergency matters. Climate attribution science--which provides a growing body of evidence linking increases in atmospheric greenhouse gas concentrations to specific extreme events and harmful impacts on humans and natural systems--has been playing an increasingly significant role in policymaking, planning, and litigation. In several climate change litigation cases involving claims that a government or private actor should be held accountable for their contribution to or failure to regulate GHG emissions, attribution science has been used to establish standing and define parties' contributions to GHGs as well as causal connections to a broad range of on-the-ground impacts and harms. In Japan, attribution science has been helping litigants to argue, but it remains to be seen whether it will also support judges' decision. Similarly, the extent to which government lawyers and in-house counsels refer to or make further use of global-change science concepts and frameworks to delineate the notion of climate risk needs to be investigated.
The question of how practicing lawyers construct climate disaster as an object of legal practice, however, goes beyond this first aspect: it also necessarily relates to the broader discussion about the need for new forms and techniques of legal reasoning in the Anthropocene. Climate change is universally disruptive of legal systems--and Japan is no exception. Thought of as legally disruptive, climate change requires 'a break in the continuity of existing legal practices and doctrinal business as usual' (Fisher et al. 2017, 174). As stated by Linda Ross Meyer, 'law is constantly colonizing catastrophe, reframing it as injustice, expanding the bounds and jurisdiction of law, and consequently expanding the zone of human control and responsibility' (Meyer 2007, 20-21). However, such collective response remains ambiguous as it shares with 'nihilism' (the other possible stance toward catastrophe) the same basic commitment to the normative status quo: prevailing norms and ordinary legal frames, whose integrity has to be maintained along with the values they embody, are not fundamentally questioned. In the face of climate disaster risks and the challenge that climate change-induced extreme events represent, would practicing lawyers seek to stretch the bounds of substantive frameworks (tort, constitutional law) to help domesticate disaster? Or, confronted with different forms of legal disruption generated by climate change (Fisher et al. 2017), would they have to innovate further, thus contributing to the progressive recrafting of Japanese law normative project, beyond the application and incremental development of existing rules and doctrines?
Historically, Japanese courts have performed a significant role in the development of tort law rules in the field of pollution. Additionally, civil lawsuits and administrative lawsuits have been used by environmental protection groups and citizens affected by environmentally unfriendly development. Although global warming can be linked to the increased occurrence of many extreme weather events and risks of disasters at scales not previously experienced, the legal response has not followed the familiar pattern seen in the aftermath of other environmental disasters. Yet, climate change generates disputes. To date, there have been four climate change-related litigation actions in Japan, two against the State and two against a corporation. 7 As these cases are still pending, uncertainties remain as to whether the judge will either expand the bounds of judicial authority to address anthropogenic climate changerelated disaster risk or refuse to engage the court's juris generative potential in this domain. While the effects of climate change multiply and intensify, my research proposal scrutinizes how lawyers might contribute through their contentious practice to progressively bring an increasing number of disasters, even the 'unpredictable and unexpected', within the bounds of Japanese law. Not limited to climate change litigation and adjudicative forums, this proposal also explores how different types of lawyers, including government lawyers and inhouse counsels, build on their most recent experience in times of crisis (Okamoto 2016(Okamoto , 2018 and develop more proactive legal strategies that help to progressively open up Japanese law to the notion of climate disaster risk. As anthropogenic climate change-induced extreme events are 'a particularly vexing threat to social meaning and justice' (Weaver and Kysar 2017), legal reasoning and the 'legal ecosystem of crisis response' (Brescia and Stern 2021) will need to open up to a wider range of narratives (including the Anthropocene and its competing accounts), understandings (not only critical approaches to environmental law but also Disaster-STS 8 ) and modes of thinking (such as assemblage thinking). A decade after the 3-11 triple disaster, any attempt to configure to Climate Disaster Law and crisis lawyering frameworks the normative project of a mixed jurisdiction like Japan is certainly fraught with further analytical and practical difficulties. Yet the exercise is crucial, which should help clarify what to think like a lawyer means and implies in an era marked by climate crisis.