Journal of Law and Political Economy

Climate change is a direct consequence of capitalism’s drive to maximize profits through the unbridled extraction of wealth from humans and nature, aided and abetted at every turn by law. In its voracious demand for cheap labor, cheap raw materials, and cheap waste disposal, capitalism has created a treadmill of fossil fuel–dependent production and consumption that has triggered a planetary emergency. It has also produced extreme economic inequality—a racialized division of wealth grounded in colonialism that enables the ultrarich to capture the spoils of the capitalist global economy while billions of people continue to live in extreme poverty. The articles published in this special issue examine the climate emergency and other ecological crises through the framework of racial capitalism. The theory of racial capitalism offers valuable insights into capitalism’s inherently eco-destructive logic and its reliance on racial stratification for the extraction of profit.

This article examines the legal constitution of racialized climate injustice, assessing the racialized dynamics of property in the context of climate change. It explores these examples: first, the failure of the international climate regime to contest unjust appropriation of the atmosphere by industrialized countries regarding historical emissions; second, the limitations of the “no-harm” rule, which is effectively the internationalization of the domestic principles of the tort of nuisance, in providing compensation for the racialized harm caused by climate change; and third, how international investment law is allowing fossil fuel companies to seek compensation if governmental actions in response to climate concern impact their investment or hoped-for returns.

This article examines how the enduring legacies of racial capitalism and discriminatory land policies shape climate vulnerability and adaptation in US cities, using Miami as a primary example. It highlights how flooding and heat waves disproportionately impact marginalized, historically disinvested neighborhoods, which are further threatened by displacement resulting from “climate gentrification.” Miami illustrates these dynamics, as affluent residents relocate from vulnerable coastal zones to higher-elevation, previously segregated neighborhoods, driving investment and property value increases that endanger longtime residents with displacement. The article explores how factors such as land use policy, zoning, and public investments embed racialized landscapes and drive displacement risk in these communities. The article calls for “just adaptation economies” that embed antidisplacement measures in resilience investments, support community ownership and stewardship of land instead of speculative development in historically marginalized neighborhoods, and prioritize policies that counteract persistent social and spatial inequities. The article explores a few examples of where adaptation economies are emerging through designated justice-oriented green urban development zones. 

The way people treat each other and the way they treat their environment are inextricably intertwined. Thus, it is unsurprising that five centuries of colonialism, genocide, slavery, apartheid, and racial discrimination have produced climate change, mass extinction, desertification, deforestation, and polluted air, water, and lands. The West has used international law to institutionalize unaccountability for its racism and environmental harms. This article argues that international law’s inability to stem accelerating ecological decline is attributable to and inseparable from the discipline’s racism, and vice versa. This article explores five legal techniques—comparison, objectification, exploitation, taming, and extermination—that produce racist and environmentally harmful outcomes while cloaked in the legitimacy of the law. The racializing of nature and the naturalizing of race through international law depend on the erasure of subaltern worldviews. But another international law is possible where diverse sustainable legal traditions heretofore silenced make international law on their own terms.

This paper argues that decarbonization will fail to deliver climate justice unless the transition to clean energy confronts the racialized political economy that has historically structured extractive activity and shaped international economic law. Grounding its analysis in racial capitalism, the paper contends that the growing demand for critical minerals risks reproducing patterns of exploitation, expropriation, and expulsion. Using lithium extraction in Chile as a case study, it shows how colonial legacies, dictator-era neoliberal reforms, and present-day regulatory architectures governing foreign investment and natural resource extraction have prioritized investors over human rights and the environment. Recent decisions of the International Court of Justice and the Inter-American Court of Human Rights on climate change provide a normative counterweight to international investment law and potentially a pathway for inclusive and transformative reforms. By foregrounding racial equity, the clean energy transition can avoid replicating the distributive injustices of the fossil fuel era.