Category Archives: Climate and justice

Opinion: The Road to Paris – can we navigate the pot holes to a global deal in December?!

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UNclimatelogoDr Chuks Okereke gives his personal account of progress, or the lack of it, from the recent UN climate meeting in Bonn (June 2015). Chuks is Associate Professor in Environment and Development and Associate Director of Leverhulme Climate Justice and Ethics Doctorate Training programme at the University of Reading.

The UN climate negotiations are famous for their agonisingly slow progress and last minute, late night deals, but even by their own standards, the Bonn meeting was notoriously frustrating, both in pace and content.

The 42nd meeting of the Subsidiary Bodies to the United Nations Convention on Climate Change (to use its technical name) which closed on Friday 12th June is just one more step on the road to the full UN Climate Summit in December in Paris. If it offers an indication of the kind of ‘deal’ to be expected in Paris then, clearly the omen is not good.

Game playing by the developed countries

While the Heads of State of some of the world’s richest countries gave encouraging words at the G7 summit outside Munich, it seemed that their climate negotiators, just 400 miles to the north in Bonn, were playing a game of time wasting.

Led by the US and to a lesser extent Australia and Canada, developed countries chose to clutter the process with distracting talk of concepts, possible flow of text and procedural matters.  For example, in the meetings on finance the G77 (a loose grouping of developing countries) and China were anxious to have a discussion on the scale and sources of finance, while developed countries preferred to talk about whether or not it would be better to have the section on scale before or after the section on sources!

Similarly in the meeting on intended mitigation commitments developed countries refused several invitations to discuss what emission reductions pledges they might make, but rather chose to focus on possible time frames and cycles for communicating action – the form and scale is yet to be decided.

From “Common but Differentiated Responsibility” to “Common but Shifted Responsibility”

Personally, I’m deeply concerned that this game of brinkmanship and delay might lead to a rushed and half-baked Paris deal that will fall short of the ambition required to protect the Earth and the most vulnerable populations around the world.

In particular, there is a distinct danger that the Paris climate agreement, if hastily worded at the last minute by powerful countries as was the case in Copenhagen in 2009, will end up imposing unwarranted obligations on poor countries who are the victims of climate change.

Indeed, several aspects of the lengthy and convoluted negotiating text appear to demand stringent emission reduction and reporting obligations from poor developing countries without providing for the necessary financial and  technical support they will need to meet such obligations. These moves suggest that developed countries are keen to walk away from the accepted common but differentiated responsibility principle in pursuit of a perverse ethical principle which might be termed the common but shifted responsibility principle.

Equity at the Core of the Disagreement

Despite the ‘smoke and mirror’ diplomacy deployed by developed countries, the key disagreements are quite obvious and these centre on old unresolved conflicts about equity and justice.

Developing countries are adamant that developed countries should not only take on ambitious mitigation commitments but should also provide adequate and predictable finance to help facilitate adaptation and low carbon development in the South. They are also angry that developed countries have consistently failed to meet previous promises made in relation to finance, technology transfer and capacity building.

Developed countries on their own part insist that the new agreement should generate far reaching financial and emission reduction obligations for all countries, especially the developing countries with fast rising emissions and GDP. They insist that the world has changed a lot since the initial convention was signed in 1992 and that the Paris agreement must reflect these ‘new economic realities’.

Two more rounds to go before Paris

There are two more rounds of negotiations, in August and October, before the Paris Conference in December, but it is hard to see how these intractable issues and fundamental differences can be resolved in these remaining meetings.  If the debacle of Copenhagen teaches us anything, it is that lack of openness and transparency can do lasting damage to the fabric of trust on which international environmental diplomacy is built.

Developed countries should come clean with their offers on how they plan to show leadership for cutting emissions that reflect their historical responsibility. There should be a commitment to negotiate in good faith and work with liked minded countries in developing countries to work out package deal that is fair, equitable and ambitious enough to protect the world from man-made climate change. Developing countries on their own part could move the discussion forward by putting forward concrete proposals that will ‘force’ a reaction from developed countries.  A deal in Paris is both an ecological as well as a political necessity and diplomats on all sides should know that the time to move a gear in the negotiation is now.

 

Opinion: Who pays for climate change damages?

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A discussion of the case of the Peruvian farmer vs RWE

Chris Hilson, Professor of Law, and Associate, Walker Institute, University of Reading

It has recently been reported that a Peruvian farmer from the town of Huaraz, in the Andes mountains, is seeking to sue German energy company RWE for its contribution to climate change. The farmer claims that his house is at risk of flooding from Palcacocha Lake, as the glaciers that feed the lake continue to melt in response to warming.

Based on a 2013 paper in the journal Climate Change, the farmer is arguing that RWE, as a major European emitter, has a 0.47% responsibility for climate change. This means that it should therefore pay for 0.47% of the overall cost of protecting the village from glacial flooding, which amounts to around €20,000.

Is litigation like this a good thing? On the plus side and whatever the outcome, such a case, with its David and Goliath overtones, usefully raises the profile of the effects of climate change on a wide range of communities globally. Coming before the crucial UN Climate Change Conference in Paris later in 2015, this can only be welcomed.

Nevertheless, one might question whether the courts are the best place to determine how and where climate adaptation measures should be taken and who should pay for them. Instead, it might be better for the UN Climate Summit in Paris this December to consider extending the Adaptation Fund and much larger Green Climate Fund (GCF) to include a compulsory levy on private sector energy intensive industries. As things stand, these funds are financed principally by donations from developed country governments.

Currently the only private sector involvement is via the GCF’s Private Sector Facility, which aims to encourage private sector investment in low carbon, climate resilient projects, rather than imposing a compulsory charge or levy.

After the recent financial crisis, some may feel that it’s time for the private sector to take on its share of responsibility. Climate change litigation of the liability type aims at this, but it may end up hitting too few targets.

The recent Peru case is not the only example of poor communities at risk from climate change deciding to sue for damages. In 2009 in Kivalina v ExxonMobil, the native Alaskan village of Kivalina sued ExxonMobil and twenty three other defendant energy producers in the US courts for harm caused by their past emissions of greenhouse gases. The coastal village had previously been protected from storms by sea ice; however, as a result of climate change, this ice had begun to melt and break up, resulting in serious erosion of the village and a threat to its future. In dismissing the claim, one of the judges stated:

“Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere.

Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries. It is one thing to hold that a State has standing … to challenge the EPA’s failure to regulate greenhouse gas emissions … It is quite another to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.”

One must be wary of reading across from US to German law, but the Peruvian farmer is quite likely to face similar issues. In his favour, unlike Kivalina, the loss is clearly defined, and it is also attributed in a proportionate, evidence-based way, to a single emitter (rather than a medley of 24). However, the burden of establishing a precise causal link between RWE’s historical emissions and the melting of glaciers in Peru is, to say the least, unlikely to be straightforward; nor is establishing the fairness and proportionality of singling out one private emitter from many millions who have been responsible for climate change. On top of that, the claim appears to be for the risk of harm (from future flooding) rather than for existing harm and in many national jurisdictions, it is difficult to sue for this.

Rather than sue in the German courts, one might have expected the Peruvian farmer to have petitioned the Inter-American Commission on Human Rights. In 2005, Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Conference famously submitted a petition to the Commission for violations of Inuit human rights resulting from global warming caused by US greenhouse gas emissions. That petition was subsequently rejected. However, the farmer here might well have a stronger case on the basis that the Peruvian government itself should be taking precautionary action against the risks of flooding, including, at a minimum, the creation of effective early warning systems, and that a failure to do so breaches his human rights. That the farmer and his lawyers decided to sue in Germany instead is no doubt due to concerns around climate justice: climate change litigation against countries from the Global South like Peru which have not been responsible for historical climate emissions has much less purchase in justice terms than taking action against a multinational corporation from the North.