The world is gearing up for climate talks in Paris in December. It’s very exciting – it’s exciting that (in the words of our new Environment and Climate Change Minister) “Canada is back”; it’s even more exciting that there seems to be momentum for an international agreement.
But much as I enjoy all of that excitement, a lawyer going into negotiations always tries to understand what needs, interests and powers the different parties have. Right now my assessment is that while an international agreement may come out of the Paris climate talks, the playing field is tilted against a strong agreement. I’m not alone in that assessment.
That power imbalance occurs for many reasons – because of wealth, a history of colonialism and many others. But one cause is the widely held assumption – held by international negotiators but also in many cases by the climate movement itself – that fossil fuel pollution is permissible unless and until the countries where the fossil fuels are burnt, and which benefit economically from that fossil fuel use, choose to regulate them.
I’m going to Paris for West Coast Environmental Law not because I expect a perfect agreement, but because I want to be part of the conversation about how to level that field (or maybe, in my wildest dreams, tilt it a bit towards climate justice).
Climate justice requires that the communities impacted by climate change have a voice; by acknowledging the legal strength of those communities, and their countries, to hold major fossil fuel polluters accountable for their contribution to climate change we can start to challenge the assumption that fossil fuel pollution is normal and carries no legal consequences. That, in turn, can drive renewed urgency for international action.
Why is the playing field tilted?
In international law, a country has “sovereignty” over what happens within its borders – as long as it doesn’t impact other countries. Of course, fossil fuel pollution that occurs in one country does impact other countries. However, international climate negotiations have always been based on an assumption that the power to reduce greenhouse gas emissions rests solely with the country where greenhouse gas emissions take place (the source country).
The climate movement has also generally assumed that legal action to regulate fossil fuel pollution can only occur in the countries where that fossil fuel pollution occurred.
This piece from David Roberts (then writing for Grist) summarizes the cost-benefit equation facing those who burn fossil fuels – an analysis that holds true for nations, as well as for individuals:
With every ton of carbon we emit, we add incrementally to the total concentration of greenhouse gases in the atmosphere. That total is what determines the effects of climate change. By emitting ton of carbon we are, in a tiny, incremental way, harming all of humanity, especially the poorest and most vulnerable.
Conversely, however, every ton of carbon emissions we prevent or eliminate benefits, in a tiny, incremental way, all of humanity, especially the poorest and most vulnerable. Say I pay $10 to reduce carbon by a ton. I bear the full cost, but because all of humanity benefits, I receive only one seven-billionth of the value of my investment (give or take).
In other words, mitigation is fundamentally altruistic, other-focused.
At the national level, many countries, Canada included, have made a lot of money by betting on fossil fuels. While there are plenty of financial opportunities for countries that move to renewables, our societies have a lot invested in fossil fuels, and infrastructure based on it. There is political risk and economic uncertainty for any politician that pursues aggressive cuts to greenhouse gases, particularly when it’s uncertain if other countries will also pull their weight. That’s not to question the good intentions of developed country politicians, but to recognize the constraints on what they can do.
Add to that the fact that fossil fuel companies, which have been making billions from inaction on climate change, have brought their considerable economic resources to bear to block a global agreement.
When we say that the countries where greenhouse gas emissions take place need to regulate the emissions, we’re expecting the very countries that have benefited economically from fossil fuel use to regulate it. In the short term we’re asking them to regulate the goose that laid the golden egg, and in the long-term we want them to phase out those golden eggs.
In the lead up to Paris, each country has been voluntarily proposing its own targets, known as Intended Nationally Determined Contributions (INDCs). The theory is that both national and international pressure will convince national governments to propose aggressive INDCs, but the reality is that, in the words of non-profit observers:
To date governments have escaped meaningful scrutiny and rejected notions of ‘fair shares’, asserting the uniqueness of their particular ‘national circumstances’ and their ‘right’ to determine their own level of climate ambition. Countries have moved to a ‘bottom-up pledge’ approach, with highly unequal levels of commitment and effort. This is not fair and the pledges do not add up to what climate scientists say is needed. The result is a large shortfall of emissions reductions creating risks that are tantamount to gambling with planetary security.
The assumption of the international negotiations is that the countries that are suffering from climate impacts have few legal options beyond pressing through diplomatic channels for a strong international agreement, possibly including mechanisms to deal with the “loss and damage” that they are suffering. The implication of that assumption is that the only legal consequences for failing to act are any consequences that the international community may agree on.
A different narrative
Both the climate movement and the international climate negotiations are badly in need of a different narrative.
Let’s start from the premise that it has never been legal to knowingly destroy property, lives, and, indeed, entire nations – either in international law or domestic law.
Some developing country negotiators have made this point when they have spoken of climate compensation or reparations, as have climate campaigners who speak about climate justice. However, they have still generally assumed that this important point will be addressed through international negotiations in which the polluting countries will recognize their culpability and agree to pay compensation. However, the concept has not been widely discussed, at least in developed countries.
So here’s a second, potentially revolutionary concept – and one which helps climate victims in developed countries, as well as developing countries: a country has legal authority over harm that occurs within its borders.
Its courts can make orders and its Parliaments can make laws related to legal consequences of fossil fuel pollution, particularly as it relates to global sources of fossil fuel pollution from corporations. Its citizens can petition their own courts or human rights tribunals (as occurred recently in the Philippines) under their own laws to hold global fossil fuel companies accountable for the harm that their product is causing, or lobby their governments to pass new laws clarifying the basis for such legal action.
As we wrote in our landmark report, Payback Time:
The impacts and causes of climate change are global, which means that climate damages litigation could take place in, and apply the laws of, any of the countries where damage occurs. For example, lawsuits in Pacific island nations could target major emitters based in North America, Europe or Australia. As a result, climate change liability could be considered under a wide range of legal approaches within quite different legal systems. Moreover, at least some of the judges hearing such cases will belong to countries, cultures and economies that receive relatively few benefits from fossil fuels while suffering heavy damages caused by climate change. In other words, the social and economic influences on these judges would be significantly different than in Canada or the United States.
There are well established legal principles in most countries related to bringing and enforcing court proceedings related to international disputes, which give a wide range of options to nations and to the climate movement, if they choose to follow them.
These types of strategies will not happen on their own – we need to demand them. In countries like Canada, which has perceived itself as benefiting from the fossil fuel industry, there at least needs to be a conversation about whether fossil fuel companies or other large-scale emitters have any financial responsibility for helping cities prepare for climate impacts or rebuild after flooding, and how much. If we don’t have those conversations, then taxpayers and impacted communities will pay for the huge costs of climate change, while corporations that have made billions from the fossil fuel trade in full knowledge of the impacts that their product was causing, and done their best to block climate action, walk away without paying their fair share.
In developing countries, where there might be more willingness to consider the idea that climate impacts are not natural, but caused by someone else, there are huge challenges related to dependence on foreign aid and capacity, among other factors, that might discourage the country from flexing their legal muscle in this way. Citizens pushing the boundaries of what is possible will be essential.
Climate-vulnerable countries are challenging the assumption that fossil fuel can continue without legal consequences. In June 2015, during preparatory climate talks leading up to the Paris meetings, six island nation governments issued a joint “People’s Declaration for Climate Justice” that reads, in part:
We are from island states in shared oceans. We stand in solidarity.
We commit to holding those most responsible for climate change accountable. By doing so, we send a message of hope that the people and not the polluters are in charge of humanity’s destiny.
We commit to bring a case that would investigate the human rights implications of climate change and hold the big carbon polluters accountable to appropriate international bodies or processes.
Tilting towards climate justice
It is important that everyone who wants real action on climate change join voices like these, and try to challenge the assumptions behind the Paris climate negotiations.
The reason to talk about accountability and compensation is not just to ensure that the victims of climate change are taken care of – although that is an important goal.
Even talking about accountability and compensation creates a risk to those who believe that they can continue to profit from the fossil fuel economy forever. That talk creates space for future political and legal action.
And acting on that talk – and demanding that our courts and governments put in place measures to hold them accountable for harm occurring in our own countries? That could start to level the playing field in future climate talks.
Until then we’re waiting for the governments that have caused the problem to save us.
By Andrew Gage, Staff Counsel
Photo modified from a photo by John Fischer used under Creative Commons licence.