Environmental Law

29/11/2022

Carbon Offsetting and the 2022 FIFA World Cup in Qatar

The controversies in this year’s World Cup in Qatar seem endless. Whether it be deaths of migrant labourers, corruption in international sports, authoritarianism, or discrimination against LGBTQ+ people, the tournament is drawing attention to a wide range of disquieting issues. Included in this smorgasbord of controversy has been the dubious claim made by FIFA and the tournament organisers that it will somehow be 100% carbon-neutral. While for some this claim is controversial because it is simply hard to believe, it has also raised questions about how genuine and meaningful it can be when it purportedly will be achieved through the purchase of a huge number of ‘voluntary’ carbon credits to offset the tournament’s emissions. However, while the World Cup gives good cause to scrutinize how and for what purposes carbon offsets are used, it is still important to remember that not all carbon offsets are the same. 

The claim to climate neutrality is essentially a pledge that the event will have no net impact on atmospheric greenhouse gas concentrations and is tied to FIFA’s campaign over the past decade or so to advertise its green credentials. At first blush, though, it is hard to imagine how this promise could possibly be kept. The tournament is being held in a desert nation with by far the highest per capita CO2 emissions in the world. Preparations have required massive infrastructure investments, including six (!) brand new stadiums, 1,791 km of new roads, 207 bridges, 143 tunnels, a new metro line, over 100 hotels, and countless catering venues for the anticipated 1.2 million attendees, most of whom will fly in from all over the planet. One can’t help but think that the idea that all of this will have no (net) impact on the environment is very far-fetched.

FIFA’s claim to carbon-neutrality has two basic components. The first is that emissions will be mitigated by certain investments made by the organizers. The second is that any leftover emissions, 1.8 million tons by FIFA’s estimates, will be offset through carbon credits, tallied once the event concludes. FIFA has calculated that the tournament’s carbon budget will be a little over 3.6 million tons of emissions. By itself, this figure is staggering. It is a larger figure than the annual emissions of 71 countries and is only slightly lower than those of Iceland and Namibia. It is also nearly double that of the previous 2018 World Cup held in Russia, and about on par with the 2016 Rio Olympics (which showcased 305 sporting events, not just one). External observers have pointed out that the methodology used by FIFA to reach that figure were very conservative, and have calculated that the real emissions figure for Qatar will likely be double or even as high as triple that. For some, this accounting discrepancy smacks of ‘greenwashing,’ and it has inspired a number of consumer protection suits to complain of false advertising, including in Switzerland where FIFA is based. 

To achieve its goal, Qatar recently created the Global Carbon Council (GCC), the only global voluntary GHG offsetting program in the Middle East. The GCC maintains a carbon registry that records, issues, and facilitates the exchange of ‘Approved Carbon Credits’ created to reflect the carbon sequestration benefits that projects submitted for registration have been deemed to have. This registry and its standard-making processes are similar to but entirely independent from other leading voluntary carbon market standards in the world, like the Verified Carbon Standard (Verra) or the Gold Standard (GS), though some have criticised the GCC’s standards for being less stringent.

Two key concepts are essential for putting this offset purchase plan into context. The first is that the carbon credits to be purchased to offset the World Cup are ‘voluntary’ in the sense that they are issued and purchased by processes that are independent of any external government regulatory oversight. The carbon credits that the GCC issues are subject only to rules and standards of its own making. It is therefore no different to Verra or the GS, or any other market-based voluntary standard-setting bodies like the Rainforest Alliance or Fairtrade.  

The second concept is ‘additionality,’ which is an accounting standard by which the validity of any offset credit can be judged according to what ‘additional’ carbon sequestration impact the activity that it refers to has had. In principle, sellable offset credits should only be issued for activities that sequester tonnages of atmospheric carbon in addition to any sequestration that would have happened anyway (‘business as usual’). Thus, according to this principle, the activities of treeplanting, energy efficiency promotion, or forestry managementprojects, for instance, should be registered and sold as valid offset products only if and when they represent some additional investment or behavioural change that, in its absence, would not have sequestered the X tons of carbon from the atmosphere that the carbon credits itemize.

Among environmental activists and throughout the popular media carbon offsets are often criticised out of suspicion of the ‘voluntary’ nature of their standards, and also more spectacularly when, upon closer inspection, they are found to credit projects that produce no actual ‘additional’ carbon sequestration benefits. John Oliver, in a recent Last Week Tonight segment on HBO, hilariously equated carbon offset credits to ‘winning a kids choice award — it doesn’t really mean much, but it will help you temporarily look a little greener.’ He is not alone. Greenpeace has called the entire idea of carbon offsets a ‘scam,’ especially when their primary purpose is to promote some corporate image of CSR accountability to either consumers or shareholders. Environmental activists are currently lobbying Brussels to drop plans to create an offset certification system for the EU, calling it a ‘greenwashing fantasy.’ In a recent review of credits that currently sit in the GCC’s registry, Carbon Market Watchconcluded that the majority of them were renewable energy projects that were unlikely to have achieved credible additional reductions in atmospheric GHG concentrations.

These critiques are well-founded and well-documented. Except, that is, in one important way that is rarely discussed in popular discourses. In almost all cases, public discussions about carbon offsets speak refer to offset products that are exchanged for sale in ‘voluntary’ carbon offset markets. There is another, though less common, kind of offset system where so-called ‘mandatory’ or ‘regulated’ carbon offsets are bought and sold in tightly regulated systems specifically designed to achieve ‘additional’ emissions reductions. In contrast to ‘voluntary’ markets, these offset sales are linked to ‘mandatory’ governmental regulatory regimes that obligate high-emitting industrial or other sectors to reduce their emissions over time. The purchase of offsets in this context is not CSR window dressing, but rather a (costly) way for high emitters to stay in regulatory compliance when they are unable to meet their annual emissions quotas. Since these ‘mandatory’ carbon credits are used for regulatory compliance purposes, they are subject to rigorous oversight by public authorities, are only available for sale on government-run registries, and are validated and certified only when they are deemed to be ‘additional’ on the basis of well-established scientific protocols and strict rules about data collection. 

When done well, ‘mandatory’ or ‘regulatory’ offset credits address the very accountability and additionality problems that have evoked so much ire about offsetting the World Cup’s emissions this year. This, of course, begs the question why Qatar can’t just purchase ‘mandatory’ instead of ‘voluntary’ offset credits. The reason is simply that none are available. Firstly, Qatar, one of the highest emitting nations in the world, has no mandatory regulatory system in place to reduce domestic emissions in which to embed the offsets on the GCC register. Secondly, there is no global market for mandatory offset credits, which are available for purchase only within a very few specific and delimited national or sub-national regulatory jurisdictions, like California, Australia, and Canada. Thirdly, there are very few successful examples of functional mandatory offset systems around the world, and their experiences have demonstrated how complex, expensive, and often barely cost-effective for carbon farmers it can when offsets are tied strict scientific protocols and verifiable additionality standards. 

Agricultural offsets are a good example of this. When agricultural producers make adjustments to their land use and livestock rearing practices and adopt GHG sequestering techniques like no-till farming, mulching and cover cropping, livestock methane capture, and crop rotation, among others, they can produce calculable ‘additional’ reductions in business-as-usual emissions that in a couple regulatory systems can qualify as carbon offset credits. In California, Australia, and the Canadian province of Alberta, for instance, such practices can be converted into carbon credits that regulated industrial emitters can purchase in order to stay in compliance. In order for so-called ‘carbon farming’ to be a viable and attractive option for agricultural producers to take on, however, the costs of producing the additional benefit by switching to a new technique or technology must be matched by a high enough price for the offset produced. Such practices often require costly technological investments and data collection practices that can satisfy the rigors of their external monitoring and verification by the government. In Alberta, in Canada, which was one of the first in the world to credit novel agricultural practices as offsets, demand for regulatory offsets is far higher than their supply simply because the way that incentive balance is struck is not attractive to many farmers.^[1]

For critics of offset systems, such lack of supply might to be a good thing as it places more burdens on regulated emitters to invest in reducing their emissions on their own. On the other hand, however, from a regulatory design point of view, regulatory systems generally stand a greater chance of achieving their overall objectives, like actually reducing atmospheric GHG levels on a mass scale without excessive economic disruption, when they offer a plurality of routes for regulated sectors to achieve compliance.^[2] Furthermore, systems that integrate multiple sectors, like agriculture, can provide spill-over incentives for other kinds of producers to profit from adopting new kinds of resource uses and practices if the right economic balance is struck. Given that agriculture contributes on average 15-20% of gross GHG emissions in the world, this is no small thing. 

Thus, while there are, and will continue to be good reasons to be sceptical of FIFA’s claims to carbon-neutrality this year, one should not conclude from this that the means by which it is making this claim are entirely without merit. Carbon offset systems can be effective in achieving additional reductions in atmospheric GHGs, and they are one of very few available mechanisms for doing so. However, this is only so when they are done well, and when they are well-integrated into larger emissions reduction mechanisms. Unfortunately, the offsets that will be bought by Qatar to offset the World Cup’s emissions will not be tied to any regulatory imperative to reduce Qatar’s or FIFA’s emissions. At best they may make World Cups more expensive to host in the future, but when money is no object for fossil fuel-rich hosts like Qatar, this benefit misses the point and distils down to an expensive branding exercise. Nevertheless, the carbon offset baby should not be thrown out with the dirty World Cup bathwater because of this.

^[1] Interview with author conducted on November 3, 2021.

^[2] Interviews with author conducted on December 17, 2021 and January 22, 2022.

Michael C. Leach – Assistant Professor – Department of Public Law & Governance, Tilburg Law School

This research is made possible through funding from the Netherlands Research Council NWO under grant number 406.18.RB.004.

16/06/2022

New Dutch policy plans on nature, water, and climate change aim to transition the agricultural sector

On June 2^nd 2022, the Dutch government presented its Climate Policy Program, which is an update and amendment of the Climate Plan 2021-2030 adopted in 2020. Under the Dutch Climate Act, Climate Plans have to be adopted at least once every five years and can be amended by the Minister for Climate and Energy when the minister deems this necessary (Articles 4 and 5 Climate Act). When comparing the 2020 and 2022 texts on reducing agricultural emissions, important changes are visible. In the original Climate Plan, no specific targets for reducing agricultural emissions are mentioned (although indicative targets were agreed upon in the Climate Accord, a set of goals and measures agreed upon by the government after an extensive stakeholder process) and the focus is on voluntary measures. On livestock keeping (the largest source of GHG emissions in the sector), the plan primarily focuses on ‘optimizing fodder and improving manure management and storage’, and on helping farmers to invest in low emission livestock housing systems and providing financial assistance to farmers who wish to close down their business.

In the new Climate Policy Programme, which has yet to be discussed in Parliament, a sharper and more concrete target is proposed, one that is aligned with the Global Methane Pledge of reducing 30% methane emissions by 2030, compared to 2020 levels. This goal, however, still is labeled as ‘indicative’, so not legally binding. What has changed, though, is that the necessary measures are labeled as ‘unavoidable’ and that the government announced that it will impose compulsory measures in case the voluntary measures have insufficient impact.

Eight days later, on June 10^th 2022, the Dutch government presented its ‘Initial plan for the National Program on the Rural Area’. In the media, this plan was presented as a “nitrogen deposition plan”, according to which nitrogen deposition on some Natura 2000 sites (protected under the EU Habitats Directive) had to be reduced by as much as 70%, which would lead to the shutting down of many livestock farms located in the vicinity of these sites. This created great unrest and anger among farmers, a small group of whom, only hours after the publication of the document, went to the responsible Minister’s private home to convince her that the new policy was a bad idea.

The document, however, like the Climate Policy Program, takes a holistic approach to tackling the many environmental challenges that the agricultural sector faces. It focuses on nature conservation issues (such as, but not only, the high levels of nitrogen deposition on Natura 2000 sites), water issues (both water quality and water quantity norms under the EU Water Framework Directive, the Nitrates Directive and the Groundwater Directive currently are not met) and climate change (reducing GHG emissions from agriculture and increasing carbon sequestration on agricultural land) all at the same time. All of these issues can only be tackled when the agricultural sector undergoes a transition to sustainable agriculture, with a substantially lesser focus on livestock.

Provincial authorities must develop regional programs, together with local and water authorities and stakeholders (such as farmers’ associations and environmental NGOs) in which concrete measures are adopted to achieve the goals of the National Program on the Rural Area. These measures have to be implemented through legally binding instruments. If, within one year a province does not succeed in adopting one of the regional programs, the national authorities take over and adopt a program for that region.

What is particularly interesting from a legal perspective, is not only the way in which ecological boundaries are used as a basis for a transition of the entire agricultural sector, but also the proposed use of many, very different legal instruments to set the transition in motion. The importance of using a broad instrument mix to help the agricultural sector to become sustainable has been promoted in literature. In my recent article ‘Achieving agricultural GHG emission reductions in the EU post 2030: what options do we have?’, I show what the instrument mix at the level of the EU could look like, based on Gunningham, Gabrosky and Sinclair’s theory of smart environmental regulation.[1]

In their recent policy documents, the Dutch government lists a range of legal instruments, both at national, provincial and local level, that needs to be used to achieve the transition of agricultural sector. These range from several subsidy instruments aimed at sustainable agriculture, the tightening of emission standards of livestock buildings, to relocating, buying out or even expropriating farms. Large sums of money have been reserved for the latter measures. Further instruments are being developed as part of policies aimed at improving soil quality, at the protection and restoration of peatlands, and the forest policy.

Absent from the policy plans discussed in this blogpost are specific climate change law instruments aimed at the agricultural sector. These instruments still need to be developed. In the Climate Policy Program, the development of a tool to monitor the amount of GHG emissions at individual farm level is announced.  Given the level of harmonization of climate laws at the EU level, it is likely that agricultural emissions will also primarily be regulated at that level. As discussed in my article, a wide range of different instruments can and should be used here as well, including the EU Emissions Trading Directive. The measures that will be adopted under the policy plans will, however, also be very beneficial for combatting climate change. Less nitrogen deposition means less methane emissions, healthier soils mean more soil carbon sequestration, farms that switch from livestock to agroforestry mean less methane emissions and more carbon sequestration, higher groundwater levels in peatlands mean less methane emissions, etc.

What is clear is that agricultural GHG emissions can only be tackled when instruments from climate change law are used together with instruments from adjacent policy areas, such as environmental protection, water management and nature conservation. The two recent Dutch policy plans discussed in this blogpost are a first step in that direction. The EU can give such domestic policies a big push when it adopts specific instruments aimed at the agricultural sector under its climate change laws.

This research is made possible through funding from the Netherlands Research Council NWO under grant number 406.18.RB.004.

[1] N Gunningham, PN Grabosky and D Sinclair, Smart Regulation: Designing Environmental Policy (Oxford University Press 1998).

30/06/2021

The Challenge of Meaningful Comparisons of ETS Systems: How Canada and the EU Price Emissions

By Michael Leach

Introduction

Scholars and policymakers have been considering emissions trading systems ever since at least the 1960s when Ronald Coase imagined pollution and emissions as factors of production that could be converted into transferable legal rights.^[1] Although it took a number of decades yet before the first markets for emissions trading took off, there are now a relatively limited pool of functional examples of emissions trading systems (ETS) around the world that provide some grounds for comparison and lesson learning as these systems continue to evolve and future ones are imagined. There is tendency among scholars to treat the puzzle of emissions trading as a kind of multi-case engineering design process that searches for optimally efficient mechanisms, system architectures, forms of regulatory market oversight. From such a perspective, the few examples of ETSs around the world can be mined for evidence about what models and practices work best, and then plugging them into existing systems in processes of technical refinement. What is less discussed, however, are the boundaries of what can be learned from such inter-system comparisons, something that becomes evident once ETSs are appreciated more as regulatory systems in and of themselves rather than as a specific kind of markets that are subject to regulatory oversight. This blogpost will draw attention to these limits through a very focused and cursory comparison of the EU ETS and the Canadian emissions reduction scheme under the Pan-Canadian Framework on Clean Growth and Climate Change along the narrow comparator of how the two are structured to produce prices on emissions.

ETS Comparisons

Comparative studies of ETSs are relatively few and far between, largely because the number of actual functioning ETS in the world is quite limited.^[2] Of those that exist, ETS comparisons have largely been done to evaluate the effectiveness of different ETSs in creating a functioning market and achieving actual emissions reductions goals.^[3] Other types of comparative studies have compared the experiences of different industrial sectors within single ETS systems to evaluate how well or poorly a given ETS incentivizes them to reduce their emissions and innovate cleaner technologies.^[4] Still others have compared different specific features of ETS systems,^[5] or have compared the relative effectiveness of ETS systems versus across-the-board carbon taxation to induce emissions reduction behavioural changes.^[6] In almost all cases, the metric of comparison is the same, namely how effectively a given ETS achieves its respective goals.

By framing ETSs as forms of regulatory technology, however, much is missed about how contingent the designs of such systems are on the socio-political and legal environments in which they are created. By focusing on the technical pursuit of optimal models for ETS system designs, scholars sometimes forget to ask why it is that those few ETS systems that exist currently in the world differ from one another in the ways that they do. In 2013 Sanja Bogojevic argued that the EU ETS system was sui generis and unique because of the EU’s unique supranational legal environment. In so doing, Bogojevic challenged the notion that transferring ETS design and technologies from one jurisdiction to another is technical and straightforward.^[7]

In the brief EU-Canada comparison offered below, the argument follows Bogojevic’s line of thought, not only to point out that the two achieve emissions prices differently, but also to argue that the reason for this difference is that both ETS frameworks are products of their respective idiosyncratic political contexts and constitutional legal regimes.

Comparing Europe and Canada

Both the EU ETS and the Pan Canadian Framework are based on a logic that markets can achieve prices for emissions in ways that will produce incentives for affected industries to reduce their emissions. Despite the similarity of their goals, the two systems achieve those prices in quite different ways, however. The reasons for these differences are not simply a matter of better or worse technical choice-making, but rather are intimately connected to the natures of the political and legal orders within which they are created. Indeed, any accounting for the differences between the Canadian and European ETS systems will always circle back to the constitutional natures of Canada and the EU as political unions, one being a national federation, the other a supranational federation.^[8]

The EU ETS is structured to achieve prices by centrally determining and limiting permissible levels of emissions throughout the EU though establishing a cap on a restricted number of emissions allowances. Regulated industries are permitted to emit provided within the limits of the allowances that they own. By creating increasing scarcity of allowances as the cap is lowered annually, the ETS achieve prices on emissions as increasingly scarce allowances are traded among affected industries. Emission caps are determined centrally by the EU Commission and allocated by a combination of an open auction as well as some given freely to Member States to allocate as they feel is important. How many emissions allowances should be produced and auctioned or distributed is calculated according to both environmental considerations as well as the relative economic development of the different Member States, where some poorer countries are receive relatively more allocations to emit than richer ones). Over the course of its existence, the ETS has produced considerable fluctuations in emissions prices, but generally has been criticized for prices ending up too low, creating insufficient incentives on industries to reduce emissions accordingly.^[9]

The Canadian system achieves emissions prices quite differently. The method for achieving emissions pricing proposed in the Pan Canadian Framework and promulgated with the 2016 Greenhouse Gas Pollution Pricing Act (GGPPA)^[10] sets a basement benchmark price for all of its subnational provinces and territories to either match or surpass, using whatever means they choose, whether through a straight carbon taxes or by using market-based trading systems. In contrast to the EU ETS, the structural logic employed here is to rely on market forces (in those provinces that choose to establish a price through a trading system) to achieve an efficient sub-national emissions reductions within a framework that is centrally constrained by a basement emissions price setting. The Canadian federal system does not centrally determine emissions caps like the EU does because the point is not to intervene by controlling scarcity, but rather to set an outer framework for achieving at least a minimal price and then relying on the cost of emissions as the mechanism to structure how emissions are efficiently allocated throughout the economy. While sub-national provinces and territories that choose to set up their own ETSs are entitled to set their own cap and allowance allocation mechanisms to provide sufficient scarcity in order to achieve that price (or higher), unlike the EU Commission, it is not the Federal Government in Ottawa that does this.

Now, one can spend time wondering whether the European or Canadian ETS as they are structured will better achieve behavioural and emissions reduction goals. There is considerable debate in Europe, for instance, about whether or not to include a basement price equivalent (often referred to as an ‘auction reserve price’), while discussions in Canada have debated the value of a single national trading market instead of a sub-nationally variable one. To date, such a study has not been done, but its utility would be limited because the differences between the two systems are quite significant. The question of interest here, however, is not which system works better, but rather why it is that they are different to begin with. The choice of how a given political order will design its ETS to achieve prices is as much a political and structural question as it is a technical and economic one.

The fact that emissions prices in Canada and the EU are achieved through different forms of state intervention to manipulate prices, as well as the different roles and purposes that each system gives to the market to allocate resources and costs reminds us that both are fundamentally market-based regulatory systems, rather than merely emissions markets that are subjected to regulation. This framing nuance is important because whereas the latter suggests that achieving optimal prices should be possible through tinkering with forms of regulatory oversight to get the right fit, the former appreciates how the systems that produce prices are contextually sensitive and structurally determined by the political and legal frameworks in which they are created.^[11]

Although Canada and the EU are both forms of federations, the manner by and purposes for which power and legal authority is distributed within each is critically important for understanding why the ETS systems that each designed look the ways they do. The most obvious difference between the two is that the EU ETS is a single system for the whole union, while the Pan Canadian Framework holds together a patchwork of different provincial approaches to pricing emissions, united by a common benchmark price floor. While the EU ETS was originally designed specifically to avoid the prospect of a balkanization of different national emissions trading markets within the union,^[12] under the principle of subsidiarity that trading was more effectively done on a union-wide basis,^[13] the legal and political logic of Canadian federalism precludes the possibility for the central federal government to construct a single carbon market for the entire country in the same way.

The Canadian form of federalism is based on a series of historical agreements that united British colonial provinces under a single federal government on the condition that provincial autonomy was protected from interference by the centre within certain designated areas of governance, including economic activity.^[14] Section 92 of the Constitution Act of 1867 confers jurisdiction to provinces over much of the trade, industry, and resource extraction that are responsible for GHG emissions.^[15] It is because of this that it would constitutionally difficult, if not impossible, for the Federal Government in Ottawa to play the same regulatory role that the EU Commission does when it determines emissions quota for Member States. Similarly, because the EU is historically a federal project to create a supranational, liberal, internal market among sovereign Member States, it would face a different constitutional legal challenge if the Commission were to impose a single price floor or benchmark (in EU ETS literature this is often referred to as an ‘auction reserve price’)^[16] on the internal market in the way that the GGPPA does in Canada. While some scholars have argued that EU law would be permissive of such an action, they have also reported hesitancy on the part of economists in the Commission to consider it, concerned that if it were interpreted as a fiscal measure then passing it would be politically difficult, requiring a unanimous vote within the European Council.^[17]  In the absence of a centrally mandated basement price for emissions, however, the early phases of trading in the ETS is generally considered a failure for not producing high enough prices to sufficiently incentivize affected industries to reduce their emissions, helped in large part by giving too much discretion to Member States to freely allocate allowances through their National Allocation Plans (NAP) in ways that created competitive distortions and undesirably large windfall gains for some industries.^[18]

Conclusion

The point here is not to argue that comparing ETS systems is not possible, nor that regulatory tinkering with ETS systems cannot be inspired by other examples around the world. Rather, the aim is only to emphasize the challenges that are involved in making comparisons between ETS systems. Indeed, in order for comparisons to be meaningful requires going well beyond technical considerations of economic and regulatory cause and effect. Just because a particular mechanism successfully structures a market in ways that do induce emissions reductions in one place does not necessarily mean that it will be feasible elsewhere.

Understanding the socio-legal embededness of ETS systems is important because if we assume that all of them (both those that currently exist and any future ones) differ in how they are politically, legally, and economically embedded, or, alternatively how the legal, political and economic contexts of each delimit the range of technical options available to their designers to a bounded set of technical options, then this poses certain difficulties when imagining the transplantation of ETS technologies from one place to another.

Furthermore, by viewing ETS systems as sui generis and embedded regulatory systems, rather than as differently regulated markets, one can also appreciate how difficult it will be to achieve any future integration of ETS markets globally, as some have called for.^[19] Again, this is not to say that cross jurisdictional integration is impossible, and the case of the Western Climate Initiative that links the ETS markets of the state of California and Quebec proves its feasibility. At the same time, however, any such cross-border integration will require creating new sui generis ETS frameworks, as the EU did in 2003, but which will likely not be possible within Canada on a national scale.

This research is made possible through funding from the Netherlands Research Council NWO under grant number 406.18.RB.004.

29/06/2021

Setting Up Carbon Offset Farming in the EU: Identifying Benefits and Risks

The Intergovernmental Panel on Climate Change (IPCC) has estimated that the international community has until 2030 to cut human-caused carbon dioxide (CO2) emissions in half to maintain a 50% chance of avoiding the worst effects of climate change. By 2050 CO2 emissions will need to reach ‘net zero’ – where emissions are in balance with removals – to meet this challenge. The urgency is clear: States, organizations and business will need to use every tool at their disposal to achieve these ambitious emission reduction goals. At the EU level climate action is at the heart of the European Green Deal – an package of measures. This includes importantly  the European Climate Law that was this week adopted by the Council to enshrine the 2050 climate-neutrality objective into EU law and a 2030 Climate Target Plan to further reduce net greenhouse gas emissions by at least 55% by 2030. Just like the Paris Agreement (Article 6 of the Paris Agreement explicitly recognizes the possibility for international cooperation through the transfer of emission reductions) and national policies, the EU Climate action framework is an transitional path towards climate net neutrality rather than a response to calls in climate science for a more radical transformation. This means that a lot of the current debate revolves around ‘negative emissions’ and ‘carbon offsets’ as a tools for speedy action to avert dangerous climate change.

Carbon offset credits are used to bring a net climate benefit from one entity to another, and the theory goes that as GHGs enter the global atmosphere, it does not matter where exactly they are reduced. These carbon offset projects could also produce so called co-benefits such as social and environmental benefits; improved air or water quality and biodiversity. An offset project needs to be adopted, implemented, monitored and verified to determine the quantity of emission reductions it has generated. Carbon offset credits can be produced by wide range of national and international projects that reduce GHG emissions or increase carbon sequestration. These carbon offset projects can include agriculture. For example, the agricultural sector can enhance the capability of its land to be used as a sink, so that CO₂ from the atmosphere is naturally removed and stored in the soil or in above-ground biomass. While the contribution of agriculture to the GDP is relatively small (approximately 1.1% of the EU’s GDP), its direct contribution to EU GHG emissions is high, approximately 15% , but is also indirectly responsible for significant additional emissions. Agricultural emissions include those resulting from the growing of crops, the rearing of livestock and the management of soil to maximise production.

The agricultural sector has however long escaped environmental regulation, especially regarding agricultural emissions. Only as of 2021, agricultural GHG emissions have to be balanced under Regulation 2018/841/EU on Emissions from Land Use and Forestry (LULUCF Regulation). However, emissions from livestock are for example not included. Last week, The European Parliament and EU governments agreed on a reform of the Common Agricultural Policy (CAP). One of the biggest challenges is the alignment of the CAP with the Green Deal, the Farm to Fork strategy and  Biodiversity strategy. The problem remains that the CAP is not a climate instrument and there is no GHG-MRV connected to CAP funded projects. This was also the outcome of a recent report of the Court of Auditors : during the 2014-2020 period, the Commission attributed over a quarter of the Common Agricultural Policy (CAP)’s budget to mitigate and adapt to climate change. It was found that the €100 billion of CAP funds attributed to climate action had little impact on agricultural emissions, which have not changed significantly since 2010. In the new reform for the period 2023-2027  sealed this week a compromise was reached that 25% of the direct payments should be dedicated to eco-schemes that shift farmers toward environmentally friendly methods. However, it is not clear how these eco-schemes are defined and they depend on implementation by member states. The compromise has therefore been received with fierce criticism from the EEB and other NGOs for having too many loopholes and potential for ‘greenwashing’ EU farm policy.

Meanwhile, the Farm to Fork Strategy establishes that a new EU Carbon Farming Initiative will be launched in 2021, in order to reward climate-friendly farming practices, via the Common Agricultural Policy (CAP) or through other public or private initiatives linked to carbon markets. Carbon farming refers to the management of carbon pools, flows and GHG fluxes at farm level, with the purpose of mitigating climate change. This involves the management of both land and livestock, all pools of carbon in soils, materials and vegetation plus fluxes of CO2 and CH4, as well as N2O. It includes carbon removal from the atmosphere, avoided GHG emissions and emission reductions from ongoing agricultural practices. The Strategy establishes that the Commission will develop a regulatory framework for carbon credits but this is currently in its infancy and one of the questions is if and how market based approaches like carbon offsets or emission trading can and will be deployed.

Market-based approaches to climate change such as carbon offsets have also raised concerns and criticism.  Several studies have identified serious credibility issues with some carbon offset credits due to lacking ‘environmental integrity’. For example, studies of the two largest offset programs – the Clean Development Mechanism (CDM) and Joint Implementation (JI), both administered by the United Nations under the Kyoto Protocol – established  that the majority of their offset credits may not represent valid GHG reductions. It is not easy to measure and ascertain the quality of carbon offset credits. There are several conditions that must be met for the GHG reductions or removals to be real and effective: Carbon offset credits must be additional, meaning they would not have occurred in the absence of a market for offset credits. They should be accurate and overestimated (measurable), not be doubly accounted for and they should be permanent. Effects of CO2 emissions are very long- lasting, and once a GHG reduction or removal is reversed it obviously loses its offset function. Lastly, they should not be the cause for social inequality or other environmental harms.

To oversee that the quality is reached offset programs have been developed, usually by independent non-governmental organization. These programs develop standards that set criteria for the quality of carbon offset credits; third-party verifiers review if these standards are met, and there is a registry for transfer. Assessing the abovementioned quality criteria is however ambiguous and complex, and it is here where much of the debate is being played out, and where science and law meet. Article 6 of the Paris Agreement states that double counting will be avoided through ‘robust’ accounting methods. Nevertheless, the EU has phased out participation in CDM projects under the EU ETS, and  Participants in the EU ETS could only use international credits from CDM and JI towards fulfilling part of their obligations under the EU ETS until 2020. The EU ETS, currently, does not include agricultural emissions nor has it used the potential to acquire allowances from offsets in agriculture, either via avoided emissions or increased sequestration.   This is different in other carbon markets, such as those in California, Canada and Australia. Even though most of these offset programs have not yet generated huge volumes of offsets it is clear from the above that their relevance will become more prominent – as was also recently announced by the Biden Administration.

Looking forward to this, the EU already has already a rich experience with monitoring, reporting and verification (MRV) under the EU ETS on which it can built  for carbon offset projects. It can also learn from the successes and failures of existing protocols of agricultural offsets to identify design elements that can create or reduce barriers to effective mechanisms. For example, the EU can gain from Australian experiences with its extensive methodologies on a range of carbon farming methods since 2011. See our earlier blogpost here and here.   California and the provinces of Alberta and Quebec in Canada also offer interesting case studies: all offer the agriculture sector opportunities to sell offset credits and protocols for this are adopted (e.g. for dairy digesters). The programs in these different jurisdictions vary in (economic) design, functioning and compliance – making them interesting to study and compare. Fascinating as well, California’s program is linked with Quebec’s program since 2014 (and briefly to Ontario’s program in 2018) meaning that offsets and allowances can be traded across jurisdictions.   In two follow-up blogposts we will zoom in on the experiences with the offset carbon markets for agricultural emissions in California and Canada with a focus on the identified challenges above.

This research is made possible through funding from the Netherlands Research Council NWO under grant number 406.18.RB.004.

18/05/2021

Towards EU carbon farming legislation: what is the role of the ETS?

This is the first in a series of blogposts on a new project which we, at Tilburg Law School, have embarked on.[1] The projects starts from the recognition that the Paris Climate Agreement goals can only be achieved when greenhouse gas emissions from agriculture and land use are reduced and the sequestration capacity of these sectors is fully utilized. In most countries around the world, including in the EU, the heart of climate change mitigation policy consists of some form of carbon pricing mechanism. It seems inevitable that agricultural activities have to be included in carbon pricing mechanisms, such as the EU Emissions Trading Scheme (ETS). So far, however, policy makers have been reluctant to do so, partly because of the lack of political will, and partly because of the difficulty of measuring emissions and emission reductions at farm level.  With the improvement of measuring technologies and carbon accounting methods, however, the possibility to also regulate agriculture under the EU emissions trading scheme has become within reach.

This project aims to develop a regulatory framework that allows agricultural greenhouse gas emissions to be included in the EU ETS and to be aligned with the Common Agricultural Policy (CAP). This will be achieved through an ex post assessment of novel regulatory approaches in Alberta, California, China, and Australia and through an ex-ante assessment of inclusion of agricultural emissions under the EU ETS, either indirectly, through allowing on farm offsets, or directly, through requiring farmers to surrender allowances. Various models of inclusion of agriculture in the EU ETS will be developed and tested under a traditional ex-ante assessment methodology consisting of focus groups and stakeholder interviews.

The project runs from 2020 until 2023, so our proposals can be included in the first discussions for the post 2030 trading phase. An earlier adoption is not very likely, since inclusion of the agricultural sector in the EU ETS will have a big impact on the system. Changing the rules of the game in the middle of the current trading phase, which runs from 2020 until 2030, is not entirely impossible, but also not advisable due to the disruption of the carbon market it may cause. The European Commission, however, is stepping up its efforts to reduce agricultural GHG emissions through its European Green Deal Policy, which includes a proposal for a European Climate Law and a Farm to Fork Strategy.

The 2020 proposal for a European Climate Law introduces an ambitious overall target for the EU’s mitigation policy as it requires the Member States to have emissions and removals of greenhouse gases balanced at the level of the EU at the latest by 2050, and to pursue a new 2030 target of 50 to 55% emission reductions compared to 1990. Although the AFOLU sector is not specifically mentioned in the European Climate Law, it is impossible to achieve such targets without a drastic reduction of emissions from this sector. It comes as no surprise, therefore, that the EU 2030 Climate Target Plan, presented in September 2020, does pay ample attention both to agriculture and to land use, land use change and forestry (LULUCF). The 2030 Climate Target Plan states that new measures are being considered for the 2030-2050 period, including an expansion of the LULUCF Regulation to also cover non-CO₂ emissions from agriculture. The European Commission does not mention the option to integrate agricultural emissions into the EU ETS. Instead,

‘(o)vertime, the Commission clearly sees merit in the creation of an Agriculture, Forestry and Land Use sector with its own specific policy framework covering all emissions and removals of these sectors and to become the first sector to deliver net zero greenhouse gas emissions. Subsequently, this sector would generate carbon removals to balance remaining emissions in other sectors induced by a robust carbon removal certification system.’ ^[2]

Similarly, in the 2020 Farm to Fork Strategy, the European Commission is hinting at a new EU carbon farming initiative:

‘An example of a new green business model is carbon sequestration by farmers and foresters. Farming practices that remove CO₂ from the atmosphere contribute to the climate neutrality objective and should be rewarded, either via the common agricultural policy (CAP) or other public or private initiatives (carbon market). A new EU carbon farming initiative under the Climate Pact will promote this new business model, which provides farmers with a new source of income and helps other sectors to decarbonise the food chain. As announced in the Circular Economy Action Plan (CEAP), the Commission will develop a regulatory framework for certifying carbon removals based on robust and transparent carbon accounting to monitor and verify the authenticity of carbon removals.’^[3]

So far, most attention is focused on using the CAP to promote carbon farming. In April 2021, the European Commission published a Technical Guidance Handbook on this. There are, however, a couple of disadvantages connected to the CAP, most of which are caused by the fact that the CAP has not been designed as a climate change instrument. I discussed this in an earlier blogpost. It is important, therefore, to also look into climate change instruments to see whether these can be used to promote carbon farming.

One of the “other public initiatives” for a carbon market mentioned in the Farm to Fork Strategy might very well be integration of agricultural emissions in the EU ETS. In the remainder of this blogpost, I will have a first brief look at what carbon farming as part of the EU ETS might look like.

Two models of integration: direct inclusion in the ETS or through offsets

In the EU, the ETS has gradually expanded to require GHG emitting activities to surrender allowances for the amount of GHGs emitted. Directly requiring farmers to surrender allowances for their emissions under an ETS has not been proposed much and is not a requirement in any of the emissions trading systems around the world. The direct inclusion of farming in an ETS is considered problematic because of the difficulty of measuring emissions and emission reductions at the farm level because of the variety of factors involved (such as the diet of individual animals, tillage intensity, soil composition, weather systems of individual regions, the way in which fertilizer is applied, etc.). In addition, most farms also remove CO₂ through sequestration in soils and vegetation. For a small number of farming activities, however, direct inclusion in the ETS seems possible, especially for large scale livestock keeping within closed buildings, such as piggeries. Methane emissions can easily be monitored here, technologies to capture the methane and convert it into biogas exist, thus allowing farmers to choose between  buying allowances or investing in such technologies. With the improvement of measuring technologies and carbon accounting methods, however, the possibility to also regulate more forms of agriculture with high GHG emissions may become within grasp.

Most countries that have an ETS, have included agricultural emissions as offsets. This is true for most newly created emissions trading schemes, for example Alberta (2012), California (2014), and China (2018) (Ontario had it, but there, the ETS was revoked in 2018). All of these schemes allow regulated industries to acquire allowances from offsets in agriculture, either avoided emissions or increased sequestration. The latter incentivizes farmers to farm carbon in addition to crops as was also suggested as a policy option for the EU by the Agricultural Markets Task Force. The Canadian province of Alberta, for example, allows farmers to register and implement such projects as conservation  cropping, agriculture nitrous oxide emission reduction, changed beef  feed, methane reducing dairy production and biogas production from manure. The offsets generated under these projects can then be sold by the farmers to Alberta’s industrial emitters that have not met their provincially mandated reduction obligation.

The country with the longest experience in financing farmers for their avoided emissions and increased sequestration is Australia with its Carbon Farming Initiative (2011). Although this formally is not part of an emissions trading system as here the government acquires the offsets rather than regulated industries, the legal rules governing the Australian system are very similar to those in an ETS and can be used as a source of inspiration for a modified EU ETS that includes agricultural emissions. A positive evaluation of the Australian scheme shows that the EU, indeed, can rely on the Australian experiences with its extensive methodologies on a range of carbon farming methods. See our earlier blogpost here and here. These include for example soil carbon sequestration, beef cattle herd management, and beef cattle feed methods. The evaluation does show, though, that the drafting of many rules and regulations is needed, such as rules that require farmers to establish a baseline level of soil carbon, and to monitor, report and verify the amount of CO₂ sequestered in the projects allowed under the ETS offsets regime, as well as rules on commitment periods.

Relationship to other policy instruments

In the EU, as of 2021, agricultural GHG emissions will be regulated under Regulation 2018/841/EU on Emissions from Land Use and Forestry (LULUCF Regulation). It requires emissions and removals in land use and forestry sectors, including agricultural land use for arable crops and grassland, to be balanced. This will require some sequestration efforts due to losses occurring under conventional agricultural practices, but this can also be achieved in for instance the forestry sector. Furthermore, emissions from livestock are not included. Integration of agricultural emissions into the EU ETS, either directly or through offsets, will have to be aligned with the LULUCF Regulation.

Alignment with the EU’s Common Agriculture Policy (CAP) will also be necessary. The CAP currently  encourages farmers to apply climate-friendly practices and techniques. Both the cross-compliance mechanism, the direct payments and the subsidies for rural development relate partly to taking climate measures. It has generally been accepted in literature, however, that current EU climate and agriculture policies are largely insufficient. A much stronger focus of the CAP on climate change is advocated, for instance in this recent study published by the European Commission.

Several individual countries have introduced or are considering the introduction of domestic carbon taxes or even a meat tax aimed at further reducing GHG emissions, beyond the requirements of current EU instruments.  These domestic instruments should also be taken into account when designing a new pricing mechanism for agricultural emissions.

Impact on food security

Research by the World Bank shows that mitigation policies using a global carbon price which does not account for food production implications, will hurt crop and livestock production. To avoid such negative impacts, carbon pricing policies should be developed thoughtfully, and aim for adaptation and food production co-benefits. As discussed in an earlier blogpost, increased resilience and reduced emissions can sometimes go hand-in-hand. It is evident, however, that changes in consumption will be necessary as well. The difficulty of reducing emissions from free roaming cattle and the sheer amount of land needed to grow animal fodder for a world population of around 10 billion in 2050 necessitate dietary changes with households moving away from meat and towards plant based food and seasonal produce, reduced overconsumption of food and reduced food waste. In a great recent article in the new journal Nature Food, Rockström et al. argue that recent modelling analysis suggests ‘that it is biophysically possible to feed 10 billion people a healthy diet within planetary boundaries, and in ways that leave at least 50% of natural ecosystems intact’ as long as there is a global shifting towards healthy diets, increased productivity while transitioning to regenerative production practices, and reduced food waste and loss by 50%. Any regulatory approach towards reducing GHG emissions from agriculture has to contribute to this bigger aim to achieve a global food transition.

These are some of the legal and governance issues that need to be dealt with in the development of a regulatory framework to address greenhouse gas emissions from agriculture. For a full overview of all issues that need to be considered by law and policy makers, the FAO just published this comprehensive legislative study ‘Agriculture and climate change. Law and governance in support of climate smart agriculture and international climate change goals’. In our project, we will be focusing on the EU ETS as a vehicle for reducing agricultural GHG emissions. We will keep you updated here!

18/05/2021

From ‘Climate Chang(ed)’, ‘Climate (Is) Changing’ to Climate Justice

Globalisation and global warming: When legal regimes diverge over contrasting goals

Nairita Roy Chaudhuri *

Since the United Nations Framework Convention on Climate Change (UNFCCC) treaty was established, global atmospheric CO2 increased by 16% from 359.99 ppm of CO2 to 417.83 ppm of CO2 from 1992 to 6^th February 2021. If we are to restrict global heating and rise in mean temperature to a worst case-scenario of 2°C (according to the Paris Agreement) above pre-industrial levels, we have to restrict CO2 concentration to 450ppm. The CO2 concentration limit will reduce if we look at 1.5°C above pre-industrial levels as the target. Temperature conveys little about how global heating is actually experienced by human and non-human species in reality. Furthermore, a rise in global ‘mean’ surface temperature suggests that some places may have temperatures above or below the global average. Nevertheless, atmospheric carbon & global heating continues to increase despite the law. Those reading this piece at least might already know that we are continuing to destroy the support systems of life on this planet. With a business-as-usual approach, the world is already heading to a global mean temperature rise of 3°C this century.

The local & scattered nature of climatic impacts mean that disasters are not being experienced simultaneously by people across the globe, which makes the problem difficult to solve than this pandemic. We read and hear news about climate disasters assuming they will not impact us because of inadequate public awareness, utmost faith in technological prowess, psychological denial, or the nature of our livelihoods/jobs that disassociates us from a direct material relationship with non-human natural resources (a trend that comes with capitalist economic growth). Could be one, many or different reasons. I take ‘nature’ as a category that includes both humans and non-humans that constitute the web of life. Perhaps, human’s disconnection from non-human natural resources provides one with a temporary luxury of remaining in denial. Just last week, a massive Himalayan glacier burst open to flood northern India with more than 100 villagers missing. The year 2020 saw 15 most expensive climatic impacts including severe tropical cyclones, floods, locust swarms, bushfires and other disasters, two of which were in India.

The lack of simultaneity in experiencing climatic impacts, possibly render climate change as ‘forthcoming’ for some and ‘urgent’ for some, depending on the advantages & disadvantages available with people. Further, the slow-onset tendencies of many climatic impacts including but not limited to insect infestations, droughts, inland water salination/pollution due to sea-level rise make threats seem like an eventuality. But, none of these psychological short-sightedness really help us to flourish the support systems required for our future-generations to live safely on this planet, if we are to go beyond the Darwinistic assumption that the success of a species depends on its numbers. By no means do I subscribe to this logic in a society because, for me, success of humanity depends on many features of social progress such as nurturing an ethic of non-anthropocentric care (i.e. a care ethic that does not put human well-being at the centre but the well-being of life on this planet), social & wealth equality, justice for non-human species, gender justice, racial justice and many other significant developments. We are yet to achieve such progresses despite amassing economic prosperity.

On the one hand, international environmental law provides legal frameworks to tackle the problem of environmental deterioration and climate change. On the other hand, international economic law is allegedly protecting transnational capital at the cost of surging inequality and ecosystem destruction that accompanied globalisation. In addition, the lack of actual political will seems to steer away environmental priorities because of a structural problem in our economic thinking. One of the major breakthroughs in exposing global wealth (not income) inequality came through the publication of a French economist, Thomas Piketty’s book, Capital in the Twenty-First Century. Analysing historical wealth data from developed countries in Europe, United States of America, Canada and Japan, Piketty shows that just like in the 19^th century, the 21^st century is also witnessing a upward trend wherein the rate of return on capital (including profits, dividends, interest, rents, and other income from capital) is significantly exceeding the growth rate of the economy (nation’s annual income or output). If returns from capital exceed national income, it means it is accumulating in the hands of owners of capital. Logically, inherited wealth is growing faster than income gained from a lifetime’s labor by a huge margin, according to Piketty. This rise in inequality especially since the 1980s happened due to the political and ideological shifts regarding policies on taxation and finance, and most notably the failure of communism, as argued by Piketty in his other book titled, ‘Capital and Ideology’.

Inequality has massive and regressive implications on social justice, democracy, meritocracy, and very likely on the ecosystem too. Studies on high income and ASEAN countries show that wealth/income inequality is positively (not causally) linked with rise in CO2 emissions and environmental degradation. In Piketty’s words, “the history of inequality is shaped by the way economic, social, and political actors view what is just and what is not”. The role of economic law here comes in disenabling capital accumulation in a few hands. Because, if the unequal trend in capital’s and national income’s growth continues without any global intervention in the form of a global wealth tax (including assets and tax, as proposed by Piketty himself), the world will essentially see concentration of wealth and plutocracy in few hands, and a subsequent rise in populist-nationalism. What is unique about Piketty’s analysis is that it ruptures the artificial walls between the economic and the political, a wall that was created in the late 19^th century wherein the discipline of ‘economics’ replaced ‘political economy’. However, his analysis, like most mainstream economic analyses falls short of considering a theoretical framework that captures the implications of wealth inequalities on the environment, and the nature of Global North-South politics that drives material extraction in the Southern states.

Political economist, Saskia Sassen argues, economic globalisation calls into question the extractive logic underpinning its frameworks that legitimise the claims of foreign investors’ and firms’ mobilization of transnational capital, acquisition of foreign lands, and expulsion of local communities & their habitats. Since the 1980s, structural adjustment projects implemented by global regulatory institutions, including the IMF, the World Bank and the WTO are allegedly weakening the democratic institutions of governments in the global South by forcing them to deregulate their economies, and pay billions of dollars as shares of their GDP, for interest on their debts rather than for local development.

Indian economist Utsa Patnaik, who studies India’s agrarian economy argues that the global market is structured in a way that promotes Southern countries’ dependence on cheap imports of heavily subsidised (given as direct cash transfers) dairy products and grains from economically richer Northern countries despite say, India’s environment being suitable for growing food grains. The economically richer Northern countries, on the other hand depend on the other countries for import of tropical and sub-tropical crops that do not grow in temperate zones. There has been growing pressure on economically poorer Southern countries to end the public stocking of their grains (a policy usually taken to ensure domestic food security for the poor) and reduce subsidies provided to farmers because they make agricultural commodities cheaper and competitive. Economically poorer post-colonial countries have been exposed to unfair global trade and volatile global market prices without proper access to social security benefits. This is incurring a lot of debt on farmers. These insecurities are magnified by climate change-induced unpredictable/erratic weather conditions. This trade model of ensuring food security for the poor living in developing countries through dependence on Northern countries is what she calls ‘recreation of colonial times’.

Also, global trade as we know, comes with unequal ecological exchange that allows richer states to – 1) import high impact commodities from low & middle income states and 2) outsource much of their ecologically impactful industries to poorer states. Ecological economists Jason Hickel and Giorgos Kallis show that the material footprint of the rich states have been increasing at a rate that is equal to or greater than Gross Domestic Product (GDP). What I understand through these ‘long’ global or local supply chains is a “spatial separation” between consumers and non-human natural resources, which is likely to shield human consumers from building any connection with or care for non-human nature.

There are ample debates arguing that capitalism structurally devalues ethics of care and ecological processes while siphoning off their benefits. The “structural negligence” within the monetised and capitalist economic system towards both ecological processes and care economy shows that a capitalist market-economy only values commodities that can be priced and whose value is worth exchanging in the market. None of these subsidised processes even features in GDP measurements. The devaluation of care ethic comes with gendered injustice too. With the pandemic, the burden of care and economic insecurity dramatically increased for women across the globe affecting both formal & informal economies. The crises exposed the valuable nature of essential services that run the economy silently in the background on shoulders of domestic care workers, labourers and healthcare workers.

For the women living in rural areas in India specifically, the crises increased their responsibility of ensuring household food security. In rural areas as we know, lack of access to public amenities like safe drinking water and sanitation increases women’s their care-burden in addition to executing domestic chores. Scarcity within households accompanied increased women’s exposure to domestic violence and care-negligence. Care negligence means neglecting women’s well-being i.e. healthcare, food and other requirements, due to prioritization of well-being of other household members.

Historian, Dipesh Chakrabarty argues that the ‘globe’ of globalisation brought global interconnectedness through European expansion and technological communication that was propelled by interests based upon power and profits. There is no doubt that it did bring prosperity for many but it also brought deprivation for millions along with planetary crisis. This is precisely because the ‘globe’ of globalisation never referred to the ‘globe’ within the meaning of global warming, the latter being a product of science and exploration of life on planet earth. Both the approaches invite separate legal regimes wherein one protects power & capital and the other protects the planet. Both these approaches lack a deep political understanding of conditions and everyday realities of humans whose livelihoods & securities are directly and (in many cases) regularly being impacted by changing weather patterns, reduced precipitation, cyclones, wildfires, droughts, floods and many more.

Let’s say, a farmer’s well-being is directly impacted by climatic irregularities in comparison with someone working in the services sector because the former group’s livelihoods directly depend upon non-human natural resources. For them, the relationship with non-human natures will be very different from that of those who do not interact with non-human natures for livelihood purposes. Also, the nature of such relationships varies among humans, because not all cultures look at non-human natures from solely monetary perspective. Psychological connections easily fall out of such monetary valuation of natures. All these considerations miss from climate science-induced climate law and globalisation. And even if they consider principles of equity and sustainability, they do so based on market-approaches that rely on mainstream economic theories. And, mainstream economic theories as I highlighted earlier herein, structurally devalue ecosystem & care functions, and assume that life on this planet and economic growth can be sustained simultaneously.

Population, sustainability and climate change

Today, as ‘population’ continues to grow to an expected 10 billion by 2050, this social construct continues to be problematized in relation to solutions to sustainability and climate change even by well-meaning environmentalists. The problem of production that is catered towards meeting the needs of unnecessary and ecologically harmful consumerism by the global elites is still being ignored. While we can morally blame the rich billionaires for amassing wealth and inducing economic inequality, we cannot ignore that capitalism is also culturally producing/attracting a material- and carbon-intensive lifestyle upon which the rising middle classes are nudged to depend through advertisements, relative possession & display of wealth & goods and many other social factors.

In a 2017 study, it was shown that 10% of the global elites are responsible for 36% of carbon emissions. This is an equivalent of 26.3 tonnes per capita emissions. The global elites comprised of populations from countries including USA, European Union, Japan, Australia, Canada and the elites from developing countries whose daily income is higher than $23 Purchasing Power Parity (PPP). The proportion of carbon emissions comes from consumption of goods and services emitted through the process of production along global supply chains. On the contrary, 50% of the global poor with daily income of less than $2.97 PPP contribute to 15% of global carbon emissions. And the extreme poor who earn less than $1.9 PPP contribute to 4% of global carbon emissions amounting to 1.9 tonnes of carbon dioxide on average. The same study goes on to detail that the poor and lowest income segments across 90 poorest countries consume three items including food & beverages, clothing, and housing which account for about three quarters of their household income.

Most of the arguments problematizing population misleadingly camouflage unequal patterns of consumption & carbon emissions and unsustainable means of production, thereby invoking a sense of scarcity, insecurity and doom that is more harmful to the rural & urban poor than the ones who are better off. Given the backdrop of inequality, it is questionable to argue that the world has a problem of absolute scarcity, without looking into the problem of inadequate distribution of surplus. And, this is exactly what development economist Amartya Sen took up in his 1987 book, Poverty and Famines: An Essay on Entitlement and Deprivation. He shows that famines are not necessarily a problem of availability of resources but a problem of access. Poverty is a human rights concern and the poor populations need entitlements to support stable jobs or income security that allow them to live on basic-necessities and freedoms towards a decent and secured life. Mainstream population debates also harm gender justice concerns because population control measures under most circumstances convert into women-centred policies that simply focus on women’s choice especially in the global South, without attempting to dismantle structural causes like patriarchy and nurture care between sexes.

Climate Politics: An example

Global isolationsism in the pretext of sovereignty is not a solution to address global climate injustice. Resistances from below can no longer be framed as national problems. Climatic impacts are crises that come with winners and losers. Unfortunately, climate already ‘changed’ and it is continuously ‘changing’. Some communities are already living with climate change. It is only a matter of time when the climate impacts such as rising sea-level, heatwaves and among others will directly cost the lives of the those living relatively comfortable lives. Elsewhere, I recently argued how rural & poor Indian farmers are already looking for political and legal tools to address the aggravated climatic impacts on their food and income insecurities because unpredictable droughts and floods are destroying their crops and bringing new economic losses. Recently, I also learnt how farmers in Taiwan are facing the worst drought in over half a century due to climate change.

Take for instance, the massive farmers’ protests happening in India today against the Indian Government’s move in passing farm laws without any public deliberation towards agricultural modernisation. At the domestic level, peasant movements are asking for seed & food sovereignty and alternative ways of achieving a good life that serves both material (social security, food security) and non-material (psychological connection with flora, fauna, land) needs in balance. These values are incompatible with global materialist & laissez-faire capitalist order. At the global level, Gita Gopinath, Chief Economist of the IMF has supported the farm laws in favour of deregulating the agricultural sector. Even Nobel laureate and economist Abhijit Banerjee commented on the farm laws in a way that supports the farm laws while adding that pandemic is not the right time to pass the farm laws. Deregulation comes with legalising contract farming (with agribusiness firms) and making public stocking of agricultural commodities illegal. The farmers fear that this model will make the domestic firms powerful and the sole controllers of price of agricultural commodities. Utsa Patnaik adds that it will make Indian farmers additionally vulnerable to the whims of global agribusiness firms. I must add that she is one of the few renowned economists who is critical of the profit-oriented capitalist model of agricultural development and contract farming. It seems to me that the farmers’ protests indeed has become a site of clash in political & economic ideologies between eco-socialist aspirations, and faith that runs the global order i.e. trust in capitalism and neoliberal (i.e. reduced role of the state) market efficiency for allocation of agricultural commodities. In the context of this messy transnational politics entwined with climate and agrarian crises, solutions are increasingly coming from experts who are still not connecting with protesting farmers.

While it is, tough to take a position on this mess yet, it is nevertheless important to consider that agricultural policies are made for farmers who live in a real world, and are finally responsible for the food that is on our plate. It just does not seem just and practical to oversee food security policies while ignoring farmers’ collective voice, while climatic impacts are already being felt on the agricultural grounds. If say, our bodies breakdown, we usually go to the doctor for advice instead of healing ourselves. We do this because we acknowledge that we are not experts in healing and hence trust some doctors. Similarly, if the agrarian crisis is impacting farmers, we need to question our paternalistic assumptions that farmers are not experts and certain economists/lawyers/political scientists are. Arguing that farmers are committing suicide or protesting (at the cost of their life) because they are unable to cope with crises does not say anything about circumstances that hinder them to cope. Often, they are not deemed as experts because their interests or ideologies hurt those in possession of specialised knowledge, interest or both. Lastly, it is also important to evaluate whether contract farming in its current form within a capitalist model is ecologically sustainable because often profit-oriented agricultural growth models come at the cost of soil and environmental health (nitrogen emissions from artificial fertilizers, pesticides and intensification), which may not be a wise choice given the climate scenario. Otherwise, we may land up emulating agricultural models that are failing (in terms of sustainability) in the Northern advanced capitalist countries albeit with a rise in material standard of living. I see this as an opportune moment to undo the mistakes that have been done in the past. Perhaps, it is important to engage in everyday realities of a society in order to uncover solutions that cut across climate law, climate science, economics, gender studies and political ecology.

Climate Justice

Addressing climate change is in fact a test of humanity of those humans who caused and are causing climatic crises. Climate justice helps us to break through the contradictory regulatory regimes of Environmental Law and Law & Economics, by politicising the apolitical phenomenon of ‘climate change’ beyond the contours of the nation-state and the politico-economic systems operating therein. It transpires the deep inequalities and dominations that nurture globalisation and global warming. It allows us to question who owes what to whom and why, and how these obligations should be distributed. It also helps us to question power dynamics that structure unequal control over resources that have climatic impacts at a local or planetary scale. Climate justice is thus, not only important to minimize the impacts of climate change but also rectify the structural causes of GHG emissions that are often embedded in neoliberal global development paradigms. Given the intimate relationship between GHG emissions, consumption and business-as-usual economic growth-model, we need a deeper democratic engagement that aims to redistribute power while holding the climate polluters & states ethically responsible if not legally. This can come through empowering grounded communities who can hold climate polluters into account. Macro-economically speaking, the state of affairs today highlight the urgency of human withdrawal from business-as-usual. The pandemic has already demonstrated the impact of our withdrawal, in that CO2emissions from fossil fuel and other industries dropped by 7% in 2020 due to lockdowns and reduced mobility.

Transformation as the way forward

Historians/Sociologists Dipesh Chakrabarty, and Ramachandra Guha & Madhav Gadgil (in their book, This Fissured Land: An Ecological History of India) argue that whether we blame climate change on those who are “retrospectively guilty in the West or those who are prospectively guilty in the South” (although not on a per capita basis) is a question that is undoubtedly tied to the histories of industrial mode of development (including industrial socialism & industrial capitalism), economic growth, neo-colonial continuities, modernization. To these categories, I shall also add patriarchy. I name these categories by borrowing a quote from Jerry Mander’s book, The Capitalism Papers– “If you are going to remember a thing, you must first name it…Naming something diminishes its amorphousness and stimulates focus – what it is, and what it is not.”

At the global level, regulatory bodies need to transform their governance mechanisms by decentering industrial mode of economic growth and dismantling neo-colonial continuities, patriarchy and other forms of domination that reify capture of power & capital by elite groups, in their policy and legal instruments. An enabling external environment is important for nation-states to decenter these majoritarian values from their respective national laws. Simultaneously, policy and political goals need to center an ethic of care for humans and non-humans through redistribution of power and capital.

Care needs to be centered in order to nurture collective well-being of life- including humans’ and non-humans’. However, the ethic of care needs to pay attention to politics in order to dismantle identity-based hierarchies and privileges that structure oppressive realities. Power decides much of the politics. Hence, power needs to be redistributed radically and meaningfully in order to empower those living in the margins (whether due to patriarchy, racism or other forms of domination). Further, capital needs to be redistributed equitably through wealth tax reforms so as to avoid unnecessary resource extraction which has further consequences on climate change and habitat loss of marginalised humans and non-humans.

Solutions to climate change need a transformation in adaptation and mitigation approaches keeping in mind that they address the ‘everyday’ realities especially of people who are living on the edges of the crises. People struggle or live every day; and everyday lives constitute realities on the ground. Hence, I emphasise on ‘everyday’ as the focal point of solutions. Transformations also undo structural causes of multiple crises (inequality, poverty, patriarchy, infinite economic growth, neo-colonial continuities) that make up for climate crises. We need to look away from solutions that speak to power, capital, and domination and look for solutions from the ground that center people who are directly being impacted by the crisis rather than speaking on behalf of them. What matters is the voice of those affected populations because they cannot afford to think and offer solutions on majoritarian assumptions of power. Majoritarian propositions are marginalizing them. Legal reforms could perhaps bear in mind the required decentering and centering of values as discussed in this essay, and capture changes that climate-affected people ask for. Law making, legal monitoring and implementation must be democratised.

* The author is a PhD researcher who can be contacted at N.roychaudhuri@tilburguniversity.edu

26/05/2020

Covid-19 and Climate Change: Lessons of Difference, not Similarity

This is the third blogpost in our series of blogposts related to the corona virus. The others can be found here and here.

By Mike Leach, post doc Tilburg Law School

Thomas Kuhn once wrote that crises are ‘a necessary precondition for the emergence of novel theories.’^[1] This dynamic is on display today as scholars (including this one) from all disciplines around the world scramble to come up with relevant lessons to learn from the ongoing coronavirus/Covid-19 pandemic. Whether in the hard sciences, social sciences,  humanities and law, with each new blogpost, opinion column, grant application, journal article, and even entire monographs, the urgency of the moment is inspiring thinking and encouraging new forms of collaboration as people try to establish conceptual or empirical linkages between the pandemic and areas of scholarship they habitually write in. Indeed, so great is the siren call of the pandemic that it is posing a monumental distraction to virtually all other kinds of research.

This is certainly also the case with legal research on climate change and the Anthropocene. While it is beyond the scope of this post to summarize all of the pandemic-related work that legal scholars have devoted to the topic, it is worth observing that much of the lesson-learning happening now shares a methodological approach that identifies some parallel, overlap, or comparative similarity between the pandemic and whatever intellectual niches that legal scholars inhabit. Many such contributions either use the pandemic as a revelatory moment to re-emphasize what we already know (such as how existing law does not manage human-wildlife interactions well);  or to use it to reveal something new (such as coronavirus lawsuits posing opportunities for climate litigation; or the comparative effectiveness of swift state action in uniquely urgent moments of crisis). The object here is not to critique the hard and positive work that has been committed to this collective effort to explore the broader meaning of this moment we are in. However, while this moment is inspiring efforts to identify disciplinary similarities and overlaps with legal research on climate change and the pandemic, the meaningful differences between them are being neglected. The argument here is that this general methodological preference  is leaving the overall discourse somewhat imbalanced and that what makes this pandemic different from climate change may provide equally, if not more, meaningful insights into the times in which we now live.

Similarities between the two are not very difficult to find. Both have been categorized as ‘crises’, thereby inviting related questions be asked about things like emergency powers, state obligations, moral imperatives, among others. They both speak to threats to human life and health by natural forces beyond our control, and therefore pose questions about rights and the equal distribution of access to means and appropriate legal frameworks and mechanisms for protection. However, while playing out these similarities, which are valid and relevant in their own ways, one should not lose sight of why and in what ways they are also very different. As ‘crises’, both inspire political responsiveness, but they motivate it in very different ways. While some may look to recent emission statistics with optimism that the pandemic is revealing the capacity of the state to engineer massive social behavioural changes that can produce positive environmental impacts, the vast scale and duration of behavioural change that is required to achieve any lasting impact on climate change probably makes the pandemic a poor proxy for it. Even though this pandemic-induced economic slowdown may allow countries to actually meet their Paris climate accord commitments for the first time since 2015, few should expect the very modest emissions reduction trends of the current period to last once it is over. The temporal dimension is another reason to be cautious about hasty comparisons. While we may marvel at the clear skies over Milan, Paris, or Beijing, our collective anticipation of ‘returning to normal’ in the next 6 months, or year, or even two years, is simply an eagerness to return to our pre-pandemic role as net contributors to climate change.

And it is with this temporal stir of the pot that a much more significant difference rises to the surface. Our collective fears and concerns about Covid-19 that are motivating legal reimaginings and legislative innovations these days are very different from the fears and concerns we have (or perhaps should have) about climate change because they are based on very different perceptions of our relationship to science and mortality. The general panic that is spreading around the world hand in hand with the disease is mitigated by an expectation that the vaccine-less moment in which we currently live is time-bound and will end at some discrete point in the near(ish) future. Any discussion about vaccines as resolving this pandemic reifies the inevitable conquest of the virus by science and technology, making it a question of when, and not if, we will once again feel safe and ‘normal’. Descriptions of Covid-19 as some novel expression of a vengeful ‘Nature’  are ultimately temporary accounts of human vulnerability to a force whose effects are terrifying, but ultimately fixable and reversible. Until a vaccine is found, the pandemic is being addressed as a temporary public health concern, which has made it possible for populations to adjust to forced changes to social norms, like social distancing, but also to new forms of state coercion. However, this unlikely to be more than a stop-gap until such time as the heroic labs of virologists (and the distributive logic of pharmaceutical markets) can rescue us, a stop-gap whose end is currently being accelerated by experimental efforts to relax restrictions and gingerly return to ‘normal’ ahead of time.

Climate change discourses, on the other hand, are coloured by completely different orientations towards the future and very different understandings of the dynamics of humanity’s relationship to the threat it poses. If with Covid-19 the role of science is to understand and conquer or defeat ‘Nature’ in the form of a virus, its role in climate change is more about trying to understand it, which is hard enough, but also to trying to predict the future, determine human causality and responsibility for it, and figuring out what should be done to somehow ensure a manageably perilous future for humanity (along whatever other species might survive with us). Scientific models predict futures of what will come from transgressing planetary boundaries which foretell scenarios where, unlike with Covid-19, there will be no ‘return to normal.’ There is no anticipated ‘vaccine’ for climate change that will allow us to return or suspend the world in some optimal state. Even fantastical, if not frightful, geo-engineering solutions are really just salves treating symptoms, that cannot be expected to reverse or ‘cure’ climate change. Although the pandemic has re-educated the public of what exponential growth means, whatever fears that public feels about transmission and death statistics are associated at least with a discrete virus. This makes them very different from fears about climate change that rest on far more abstract, difficult and uncertain knowledge bases about possible future states, even though they are hoped to similarly motivate world leaders to organize and commit to painful collective action goals to reach manageable future states.

It is these time/science/death distinctions between Covid-19 and climate change that make them fundamentally different legal problems to address. Legal responses to climate change are more about engineering durable and systemic change to mitigate its worst effects, rather than the current temporary restructurings of social practices that are designed to ‘flatten the curve’ and life until a ‘cure’ can be found. While state responses to Covid-19 have been more or less strong (if often distressingly delayed), international cooperation has been highly imperfect, reflecting something that is by now well known to climate change activists, that it is only with great difficulty that states can coordinate collective responses to global threats. Indeed, if anything, the pandemic is perversely undoing, rather than augmenting, ongoing efforts to come up with global political and legal solutions to climate change.

Furthermore, Covid-19 offers a clear target and focus for our attentions. It is easily described as a dangerous and tiny semi-alive bundle of RNA encased in a thin lipid shell, but whose danger to the human immune system is discrete enough to mobilize entire populations to temporarily suffer to protect themselves from it. Climate change, in contrast, for decades now has been a much more difficult flag to rally populations around. In these senses, then, the political bases upon which legal solutions to climate change have to work are much more difficult than those of Covid-19. The public has been demonstrably permissive of aggressive state action to deal with the pandemic, far more so than it would be for climate change, because the urgency is so much more psychologically palpable and obvious (and seemingly temporary). While we continue to fight Covid-19 with 19^th Century public health techniques and the far more ancient technology of bars of soap, we do so in anticipation that science and technological innovation will, eventually, save us. It is this faith that presents the world’s leaders with the political space that they need to make dark calculations that weigh public health and death rates with economic needs. Both leaders and their electorates know that at some point in the foreseeable future this will all end. With climate change, though, no such comfort can be had. The climate-related calculations that have been put before world leaders and their diplomats for years now is not only far more massive, but also far more absolute and perpetual, and therefore harder to imagine, much less convince skeptical voters.

If there is any inspiration that legal scholars of climate change can draw from epidemiology, it is that the most of world-wide decreases in mortality rates and increases to human lifespans over the past few centuries^[2] have come from large-scale behavioural and infrastructural changes and collective action campaigns, far more than from vaccine technologies.^[3] Hundreds of thousands of years of short human lives, lived amid constant fears of ever-imminent death by mysterious disease, were upended primarily by combinations of germ theory, significant public infrastructural investments, and social behavioural changes, all engineered through improvements to public sanitation, road building, urban planning, food production and preparation, education, hygiene, workplace safety, among others, well before vaccination campaigns on a global scale were ever possible. What the advent of vaccines and antibiotics did, though, was to erase social fears of microbiology, thereby allowing us to forego behavioural sacrifices about how we can or should live. Vaccines and antibiotics vanquished death by turning it into a technological, economic, and distributive problem. The same cannot be said for climate change.

While newspapers are filled with heart-wrenching stories of pain and suffering caused by the current public-health responses to the pandemic, it is also evident, to varying degrees, that such measures are proving effective at curbing and slowing the rates and spread of infection.^[4] This pandemic is suddenly revealing to us that collective responses to protect humanity from natural dangers is extremely costly. However, the sudden immediacy of the death it is causing somehow makes the extreme (temporary) costs of fighting it more obviously worthwhile to bear compared to the lower, but longer-term costs that would be required to regularly meet the commitments made in 2015 in the Paris Accords. It is also revealing how ill-suited the current international order is to coordinating collective action on a global scale, even in response to a crisis that is so specific and urgent as the Covid-19 pandemic. However, if, for many the global political response to the pandemic has been insufficient, slow, and poorly managed, compared to global climate change it has been remarkable, leaving environmentalists and climate change activists alike breathless, envious, and thirsty to seize the opportunity and somehow harness, redirect, or repurpose that same energy and political opportunitytowards the infinitely more complex and difficult Anthropocenic challenge at hand.

Yet, what is almost certain is that the kind of collective behavioural changes that are required to achieve the modest goals of temperature rises of 1 or 2 percent will require far greater cost and even suffering than we have been witnessing and experiencing these past few months. And if any lesson is to be learned from this pandemic it is that it is the working classes, the poor, and the vulnerable who are routinely shoved to the front to bear the brunt of its worst effects. Joining doctors and lab technicians on the front lines have also been nurses, grocery store clerks, postal workers, pizza delivery drivers, public transport drivers, and slaughterhouse workers, who have been exposed to a greater degree of risk than those of us who can self-isolate and e-commute from home, not to mention the elderly, the chronically sick, and the homeless. Some exposed themselves to danger out of noble self-sacrifice for the greater good; while for others poverty or immobility left them with no other choice. This pandemic did not suddenly create social inequality in the world, but it has exposed its pre-pandemic structures and is worsening its effects.  This pattern is as ubiquitous in histories of past epidemics and pandemics^[5] as it is with natural (and un-natural) disasters.^[6] If mass collective action is the only way to respond meaningfully to climate change, then this pandemic is giving us a taste of how bitter that pill is likely to be, and for whom more than others.

In light of this, it is hard to imagine how in the balance of things this pandemic augurs well for our climate change futures. Strange as it may sound, we should savour our current fears of Covid-19, not to be masochistic, but to be mindful that the fears we should be feeling about the dangers that climate change poses should be magnified to a much larger degree than what we are currently feeling about this virus. Like Covid-19, climate change will make us all considerably poorer, and we can be sure that the poor and vulnerable will also suffer its worst effects. But at least we can hope that with a Covid-19 vaccine our children’s children will not have to worry about it as much as we do now (assuming, of course, that no other novel virus will emerge, which is extremely unlikely). We can afford no such hope with climate change, though, and must think about that entirely differently.

* Many thanks to my colleagues Phil Paiement and Marie Petersmann for their valuable comments and suggestions.

20/05/2020

Citizen Sensing: towards a right to contribute to environmental information

Dr. Anna Berti Suman

On May 7, 2020, we engaged in a webinar “Citizen Sensing: towards a right to contribute to environmental information”, with more than 80 participants from all over the world. Citizen sensing, which I framed as grassroots-driven monitoring initiatives based on human senses often enhanced by sensor technologies, is increasingly entering environmental (risk) governance. Whereas the majority of studies on broader citizen science focus on the learning or participatory aspects, in the webinar we targeted the legal sides of environmental citizen sensing. The webinar – originally intended to be a workshop at the Tilburg Public Library LocHal supported by the Netherlands Network for Human Rights Research – soon became ‘virtual’ due to the Covid-19 crisis, as also went ‘digital’ my PhD defense the day after.

The webinar focused on two interrelated aspects emerged from the key findings of the PhD project “Sensing the risk. In search of the factors influencing the policy uptake of citizen sensing”:

• Whether a legal instrument for regulating citizen sensing is needed, specifically providing for different forms of integration of the practice into institutional settings;
• Whether such a legal instrument should include the recognition of a “right to contribute to environmental information” and a consequent obligation for competent authorities to listen to the sensing citizens and consider their evidence to take action.

I suggested that such a legal intervention could ensure that, if certain conditions are met, authorities are stimulated to (or even obliged to) use citizen-sensed data and insights for their decisions. Moreover, the recognition of a right to contribute to environmental information’ could both ‘legitimize’ citizen sensing and facilitate its policy uptake and also shield participants from adverse (legal) consequences associated with the exercise of the practice, such as strategic lawsuit against public participations.

The webinar addressed these two intertwined questions from a number of different academic and practice-based perspectives. Yet, numerous questions rest open, such as whether this right to contribute could be considered a new human right and, thus, what would be its relationship to the existing procedural human right to access environmental information under the Aarhus Convention, or how this new right could be implemented and enforced. In terms of regulating citizen sensing, avenues are still open as for what would be the preferable form, considering also the administrative level (e.g. local or national) and cross-country aspects (e.g. an EU-wide provision or per country). Future explorations should also address the question on whether this legal instrument would create just the ‘possibility’ for authorities to use citizen sensing or rather be ‘obliged’ to recur to such data, when certain conditions are met (e.g. information is inadequate from the official side). The discussion seems particularly needed both for academia and for practice as (legal) researchers are almost absent from this inquiry (with some pioneers excluded, and my forthcoming SensJus project) and that sensing citizens rarely ‘call in’ the law and rights in the discussion as they do not know how to ‘use’ them, or simply do not trust their enforcement.

In the webinar, we explored these questions from various perspectives, inviting to the (virtual) table citizens, experts and practitioners from different disciplines and standpoints. Communication scholar Yasuhito Abe, from Komazawa University, offered an historical journey into (nuclear) citizen sensing. Abe made a key argument noting: “from my fieldwork and historical studies, I am not saying that law instrument is the only resource that citizens use to make an effective argument concerning environmental policy, including decontamination in Japan, but I believe a legal instrument should be one of the key resources for citizen scientists to make a claim” [emphasis added]. Interestingly, Abe also noted that – in his fieldwork – only few citizens that he interviewed referred to the law, and nobody had a legal background among the citizen scientists he met. Even in his historical research on civic nuclear monitoring after Chernobyl, he did not find substantial evidence that citizens were concerned about a legal instrument. The law may thus be “invisible to some citizen scientists”, wisely noted Abe. To the question on whether a right to contribute to environmental information would be needed, Abe’s findings suggest that there are people who take action when necessary, regardless of the existence of a legal instrument, as they urgently need to know the levels of radiation for their health and safety after a disaster. Bringing in the issue of culture and temporality, Abe stressed that the necessity of a legal instrument and the shape thereof may change depending on the cultural and temporal context, so a ‘one fits all approach’ would not work, nor a ‘one-way communication’ between institutions and the citizens. Lastly, Abe warned us that we need to take into account how the institutionalization of citizen science and sensing under the name of law has potential chilling effects, for example missing the fact that the perception and application of the law differs very much according to culture, and – I add – that law risks to hamper innovation.

The conversation continued with the experience of three citizen sensing communities, each of them offered a brief statement on the questions from an applied perspective. The first speaker was Jean-Paul Close, co-founder of the AiREAS civic initiative aimed to monitor air quality in the city of Eindhoven. Close brought to the fore their ‘ideological approach’ to civic monitoring which entails going beyond a basic sensing infrastructure that is government’s responsibility, to reach an integrated infrastructures where health and wellbeing are the core, and even a multidisciplinary co-creation of human core values. Close stressed that – before being a sensing citizen – he is “primarily a human being, and a single father”. From that point of view, he addressed the local government saying that he wished to live in a healthy city. “The city wanted that too” argued Close. The citizens were “standing up” and taking their own responsibility, but they also needed the government to reach this objective and vice versa. “So they brought all people together, but that made the collaboration illegal, because government could not be intermingling in certain private companies activities, so they had to change laws for this” [emphasis added], tells Close. This suggests that the legal framework, as it is, may need to be adjusted to ensure that collaboration between the citizens, governmental and private actors is viable. Close also explored the opportunity to recognize the action of sensing a right. He noted: “You are smelling, tasting, seeing etc. on a daily basis, and if you want to extend that sensing by use of technology, you have to make it your basic right to do so. Therefore laws must be adapted.”

The second experience for practice was from computer designer and innovator René van der Weerd, who shared the story of the Meet Je Stad initiative originated in Amersfoort and entailing citizens’ measurement of temperature and humidity (also described in a piece by De Moor). From Amersfoort, the initiative soon landed in Tilburg where people started meeting at the city’s public library LocHal to make their own measuring instrument. This, according to van der Weerd, stimulated their curiosity towards the understanding of the implications from the collected data, and made them feel responsible towards assessing the issue. René stressed how there is no governmental interpretation of the raw data, which suggests the importance of keeping a certain independence while striving for integration. Despite the municipality provided some funding to deploy the sensing, the network is organized in a way that preserves integrity and autonomy from political oversight.

The third insight from practice was from Giorgio Santoriello, president of the COVA Contro Association and founder of the Analyze Basilicata citizen sensing initiative, which fights oil industry-related environmental crimes in the South of Italy. Giorgio stressed the need to ensure a legal protection in contexts, such as the Basilicata region, where conducting civic monitoring can be dangerous for the sensing citizens. Especially where the private sector is powerful as the government and it almost ‘substitutes’ appointed institutions, it is important that civic actors intervene to make fellow citizens and governments aware of the real impact of the oil industry. Giorgio also timely noted that designing laws to support the sensing citizens is only a part of the intervention, as it is essential that these legal provisions are actually enforced.

The perspective of the environmental activist was represented by Davide Scotti, high school teacher and ‘rebel’ with the environmental movement Extinction Rebellion Milan. Davide told us how Extinction Rebellion (XR), as a movement that wishes to change the system, is based non-violent civil disobedience (of which citizen sensing could be regarded as a manifestation). XR, declaring the climate emergency, wants to make people aware of the problem and push them to join forces, in order to force the government in a non-violent way to take action to halt the climate crisis. Whereas it may sounds paradoxical to ask the government for recognition of a right if XR is a movement that contests the system for not protecting the common good, Davide still sees the need for governmental intervention but in a drastic new way. As a matter of fact, XR asks the government to establish citizens’ assemblies where the citizens – selected in a demographically representative ways – can directly participate in the decision-making on the ecological crisis. This approach could stimulate the ‘legitimization’ of power and of the resulting decisions. Furthermore, participating in civic assemblies could enhance people’s awareness of the climate emergency. “If everyone would be aware of how deep we are into the crisis, everyone would be measuring”, argued Davide. The experience of Davide and of XR where numerous youngsters gather to voice their claims is also quite remarkable considering that, from my empirical analysis, I often noted that young adults are a minority in citizen sensing programs.

Two environmental law views joined the discussion. The first view was offered from practicing lawyer Veronica Dini, also founder of Systasis, study center for the governance of environmental conflicts also through mediation, who recently engaged in the topic of civic assemblies and of civic monitoring programs. When environmental issues are at stake, she noted, environmental information is often the source of controversies. Often, there is either insufficient information made available or readable to the people that are affected due to resistance and cultural aspects of the competent authorities. Sometime the information is lacking altogether. This may originate environmental conflicts. To address conflicts originated from information gaps, it is crucial that information is collected and shared in a correct way, grasping all its complexity, and that people can participate in this feeding in their ‘collective intelligence’. Conscious public participation can really improve shared decisions and deflate the environmental conflict, argued Dini. But we need to ensure that the active citizens receive feedback from the administration and feel that their contribution really influences the formation and the outcome of decisions. Providing a key point for the development of a new right, Dini noted that access to information is key to a real democracy and to rebuild a climate of trust between citizens and institutions. The (not only informed but) monitoring citizen, in fact, can play a fundamental role in enriching the debate with an aware, mature and participatory citizenship. We need, however, to avoid the risk described by philosopher Baudrillard that “the inflation of information produces deflation of meaning” (or, in other words, too much information and not enough meaning).

Also environmental law scholar Francesco Sindico, founder and developer of the Strathclyde Centre for Environmental Law and Governance, shared his experience starting from environmental monitoring and participation in Island states. For Sindico, the starting point is to wonder a number of questions such as “who needs to have the information?”; “who is the “island community?”; “to whom must the information be sent?”. Also the when, why (i.e. what to lobby for) and where to use the information are relevant as laws and rights always work in contexts. A regulation of the practice in China, Africa or in rural settings may substantially differ from Europe. If we discuss of a ‘new’ right, we need to define how do we enforce it, especially when larger fringes of society are not really interested in or do not care for the information. Lastly, also the aspect of “who is a scientist” and the mistrust in general science plays a role here. In terms of actual legal instrument to regulate citizen sensing, the guidelines that will be soon released based on a study of citizen science for environmental policy may be a benchmark and starting point in this direction as they could steer authorities, although they are non-binding. There seems to exist a trade-off in terms of how far we want to/can go with regulating citizen sensing. Non-legal avenues may be more suitable too, for example leaving completely the shaping of the practice to society. In any case, citizen sensing can never be made ‘mandatory’ because nobody can be obliged to do it. Participation should be open to everybody, but if people do not want to participate they should feel free to do so or not.

Legal and bioethicist researcher Carlo Botrugno shared his perspective from bioethics, developed at Florence University and as founder of the Research Unit on Everyday Bioethics and Ethics of Science (RUEBES). Botrugno guided us in the understanding of what citizen sensing can learn from a bioethical lens, starting from bridging the gap between biology and human values. Environmental bioethics in particular seems particularly fitting the debate for its link with public and environmental health, and also its connection with social justice. Especially an ‘everyday’ bioethics may be relevant here as it connects with daily monitoring practices that enter the lives of the sensing citizens. The transition from science to post-normal science grasped by such a lens seemed also important as it again stresses the complexity of the decision-making and the need for larger evidence bases. As science loses its credibility and validity in many people’s eyes, more citizens claims a right to become source of scientific data. In the end, all actors in society, including scientists, are “mutual and multidirectional” and they embed values in their assessments.

As last inputs, we could listen to the perspective of two sociology scholars. First, Michiel Van Oudheusden, Marie Skłodowska-Curie individual research fellow at the University of Cambridge on the relation between grassroots citizen science groups and formal institution. Van Oudheusden could bring in his (preliminary) experience on grassroots citizen science in non-EU contexts and “other democratic” countries, such as Japan and Uganda, or in China, where “people are not officially allowed to gather such data”. To the key question “is a regulating law needed for grassroots citizen sensing?”, Van Oudheusden’s answer in short, it all depends! Cultural differences (beyond time-related features mentioned by Yasuhito) have an important influence on answer. In Flanders, the Belgian civic sensing initiative CurieuzeNeuzen is a good example of an “activist movement tackling air pollution” which soon “became massive, [and] is now almost an export product in Europe.” The initiative managed to put pressure on the government (and – I add – also to the judiciary through the support of Greenpeace Belgium), but also on peer citizens as people moved to the coast because they realized that the air quality is better there. For such an initiative, in a country such as Belgium where “regulation is very much part of our culture/heritage”, “there should be some institutionalisation, perhaps not mandatory or official, but some institute that facilitates exchange in two directions, as a dialogue” [emphasis added].

The second perspective from the sociological lens was from Joke Kenens, PhD student at the KU Leuven, Centre of Sociological Research, and the Belgian Nuclear Research Centre. Kenens, throughout her PhD research, inquired the potential of grassroots-driven citizen radiation measuring organizations after Fukushima, taking into account historical and societal aspects of Japanese citizen science. Kenens stressed – again – the importance of contextual factors specific for a certain society. Indeed, in Japan, she witnessed “a general gap between citizens and governments”, where local authorities almost never refer to citizen-sensed data. Institutions do not believe in the standards used by the sensing citizens and also they are concerned that their activities are partisan (although often they are supported by scientists and even lawyers), but these data are not “wrong or right, they are just from another perspective!” At time, noted Kenens, citizen scientists’ data even end up in courts but often the ‘times’ of a court ruling are just too long for the civic desires of justice, and maybe alternative dispute resolution and environmental mediation may be more effective in offering relief to affected people.

   Images and poster’s credit: Alice Toietta

At the end of the webinar, Alice Toietta*, designer and illustrator and ‘rebel’ from XR Milan, created drawings for each perspective (now visible in the text), providing a visualization of each view point and displaying her artwork to the audience. The result was a telling poster compiling together all the different insights. She shared her experience illustrating the webinar: “We all have different ways of remembering and understanding: through observing, hearing, writing, or repeating, we learn. Drawing is my way of making sense of complex notions: by using metaphors, I strive to simplify concepts, and make them visible. […] There are so many points of view through which one can explore the topic of citizen sensing. During the webinar, […] speakers, coming from different areas of expertise, gave us participants a peek in each of their worlds, opening our minds to many questions and sparking our curiosity even further.” This approach of visualizing complex (legal) concepts through drawing will continue within the framework of the SensJus project.

[*you can reach Alice Toietta at greenpumpkingarden@gmail.com]

We also encouraged the audience to draw what they grasped from the discussion. A participant, for example, sent us the illustration below.

Image credit: Alice Bosma

After, we moved to a brief question and answer session, where some of the numerous questions raised could be addressed. Among the questions raised, I can mention a question about good examples on inclusion of citizen sensing. Van Oudheusden noted that it is important before considering good examples it is important to be careful to the question if striving for full inclusion is always desirable. Van Oudheusden mentioned the case of flu measurements in Belgium in the 2000’s and recently with Covid-19 where citizens described symptoms were integrated in official decision-making in a very top-down manner. The CurieuzeNeuzen initiative may be a good example of successful contribution to policy-making, however context and time are key to understand and build viable integration processes. In exploring such questions, it is relevant to understand varying “ecologies of co-creation”, and – as geographic information system scholar Muki Haklay suggests – every person may wish to be engaged in a different matter.

Another participant wondered how citizen sensing initiatives can ensure that the government takes a strong role in tackling environmental concerns without abandoning its responsibilities and transferring the responsibility to the local communities? Close from AiREAS stressed that their initiative’s approach in not about abandoning responsibilities but rather transforming them to a new format, that is, the co-creation stage underpinning the project. The issue of representativeness of the sensed data came to the fore. The civic group that gives input may be only a caring minority “which manages to wield strong influence in comparison to a silent majority”. Participation might in this sense be only apparently democratic but can revert to its opposite “if there is a cadre of ‘professional participators’ who […] dominate the discussion and gain influence.” Addressing the issue of (mis)representation of marginalised groups lacking the time or resources to conduct citizen sensing effectively (‘active’ participation, compared to ‘passive participation’ according to Close) seems a fundamental aspect when discussing a regulation of citizen sensing and a right to contribute to environmental information. As Abe stressed, in exploring the (in)equality of citizen sensing, also the issue of leadership in such initiatives should be addressed.

Also the aspect of data quality and precision in citizen sensing measurement emerged. A participant noted “I hear a number of speakers highlighting uncertainties. For instance […] René [from MeetJeStad] said ‘well the stations are not very precise, but they give an idea’. However, lawyers need more precision. A limit value is either exceeded or it is not, law is in that sense black and white. And if citizen sensing is transferred from the political to the legal arena, this tension comes up. Is it then a good idea to introduce legal rights and obligations on citizen sensing, if it cannot live up to the standards of precision?” [emphasis added]. Close addressed that question too and noted that, with their initiative, they are “not trying to legally fight the government” but “to use citizen engagement to share responsibility and […] participate, for instance by using their legal rights in [supporting] what citizens are doing”, also in terms of aligning to data quality standards. Other questions tackled the uptake of citizen sensing data by public institutions in specific areas of public policy, and the relevant data quality requirements; citizen sensing against scientific negationism; even a ‘right to sensing’ where the sensing is considered an instrument, not an objective, to reach the goal of better health and safety.

I wish to thank the engaged speakers, the fantastic illustrator, Alice Toietta, and the vibrant audience. A deep thanks also to Vicky Breemen and Mieke Sterken for the valuable notes.

06/05/2020

Sensing Covid-19 and Climate Change

This is the second blogpost in our series of blogposts related to the corona virus. The first one can be found here.

By Dr. Marie Petersman, Postdoctoral Research Fellow (Swiss National Science Foundation) based at the Copernicus Institute of Sustainable Development, Utrecht University, and Anna Berti Suman, PhD candidate Tilburg Law School

Over the past weeks, a plethora of articles explored the relations between the corona crisis and the climate catastrophe by framing the former as an opportunity to learn lessons for tackling the latter. Among the firsts was an essay by Bruno Latour, inviting us to address the current pandemic as a ‘dress rehearsal’ that incites us to prepare for climate change. Elsewhere, Latour argued that the pandemic had ‘actually proven that it is possible, in a few weeks, to put an economic system on hold everywhere in the world and at the same time, a system that we were told it was impossible to slow down or redirect’. Yet, despite the fact that both events constitute globally shared ‘collective’ experiences, immediate societal responses to them vary greatly. While both events are partially intertwined in their causes and effects, their differences in spatio-temporal scales and socio-ecological implications make socio-political responses to them difficult to compare.

Of course, this is not to say that links between the two events do not exist. The outbreak of the zoonotic coronavirus is entangled with multiple and often interacting ‘threats to ecosystems and wildlife, including habitat loss, illegal trade, pollution, invasive species and, increasingly, climate change’. On a positive note, we observed a widely shared enthusiasm among the climate scientific community when the measurements of the European Copernicus agency registered an unusual drop in nitrogen dioxide levels in February 2020, as analysed by NASA’s ground observation team. The coronavirus is indeed set to have caused the ‘largest ever annual fall in CO₂ emissions’, more than during any previous economic crisis or period of war. Studies also showed, inversely, that low levels of air pollution may be a key contributor to prevent Covid-19 deaths. Finally, the plunging demand for oil wrought by the coronavirus was said to have permanently altered the course of the climate catastrophe. As a result, after 2019 being coined ‘the year of climate consciousness’ with a ‘growing momentum’ for climate activism, the current drop of atmospheric pollution was welcomed as a windfall by many. A call for caution was, however, voiced by those who plead for more nuance and refrain from granting agency to the virus itself, pointing instead to the temporary retreat from capitalism’s ‘industrial production and its handmaidens’ to explain the current low emissions. Although praised by many as a ‘catalyst for transformation’ that brings about ‘an unprecedented opportunity to rethink how our beliefs, values, and institutions shape our relationships’, on the long run, the economic crisis triggered by the coronavirus may well lead to a suspension of adopted and prospective climate measures. Circular economists and de-growth advocates also pointed to the short-term risks that the pandemic may trigger by increasing the use of private transportation means or the consumption of single use plastic (including gloves, masks and disposable cups in bars). This has led certain cities, such as Amsterdam, to pro-actively consider the ‘“doughnut” model to mend the post-coronavirus economy’, bearing in mind that ‘calls for solidarity with the weak and disadvantaged must be part and parcel of [such] shifts’. Ultimately, the fact that even in a world that has come to a halt, we still fall short of the emission targets needed to keep global warming from surpassing 1.5 degrees Celsius above pre-industrial levels, shows the structural and systemic deficiencies we need to deal with and signal ‘how much further there is to go’.

Whether or not the corona crisis will be beneficial for tackling climate change on the long run beyond the immediate drop in atmospheric pollution remains, thus, a question open to debate, which outcome will dependent on the political will of states, corporations and citizens. Our purpose here is not to add one more proposal to the existing ‘menu’ of policy goals for the post-corona time to come. Neither do we wish to celebrate the environmental impact of the corona crisis, which feels inappropriate at a time when many are suffering from the disease and its related harms (from dead relatives that could not be buried, bodies that decomposed in trucks for overflow storage in funeral homes, unprecedented unemployment rates, soaring queues before food banks or unaffordable medical bills) and others are sacrificing themselves ‘at the front’ of the health emergency. Instead, our objective is to explore how the turn to sensing as a distinctive mode of engagement with socio-ecological issues can be productive to (re)imagine and address ongoing events such as the coronavirus and climate change. In line with Fleur Johns, ‘[s]ensing, in this context, refers to the work of eliciting, receiving, and processing impressions and information, both in the mode of intuitions or feelings, and in terms of data’ – it ‘includes all bodily faculties of perception, but is not restricted to corporeal sensation, individual or collective’. Sensing, as such, ‘is never just about the body, as distinct from the mind’ (Johns, at 60-61). In the next section, we start by theoretically defining and elaborating on the potential of sensing as a way to cope with events like the current pandemic and climate change, which call for a different (re)configuration of existence. We see the turn to sensing as responding to Donna Haraway’s invitation to ‘stay with the trouble’ of living and dying together on a damaged earth, perceived as more conducive to the kind of thinking that would provide means to build more liveable futures. We then turn to specific examples of ‘citizen sensing’ initiatives and conclude by questioning how the insights drawn from such ‘sensing practices’ can be fruitful to cope with the risks associated to the corona crisis and climate change.

Sensing the Unknown

Both the coronavirus and climate change are examples of ‘hyperobjects’ – a term coined by philosopher Timothy Morton to refer to entities that are so massively distributed in space and time that they defy not only our understanding but also our control. The coronavirus cannot be seen, yet its latent presence is everywhere. Gone pandemic, the coronavirus cannot be contained nor controlled, only its effects can be mitigated through specific ‘guidelines’ and ‘physical distancing’ (a survival tool revealing inequalities that span across class, gender, race and mental health dimensions). Similarly, climate change affects us all (unequally), despite it being ‘almost impossible for changes in climate to be perceived through individual experience’ (Bauer and Bhan, at 19). Both the coronavirus and climate change share the characteristics that Morton ascribes to hyperobjects: they are ‘viscous’ (they ‘stick’ to us); ‘nonlocal’ (their overall effects are globally distributed across space and time); ‘phased’ (we can only experience local manifestations of them at any one time and place) and ‘inter-objective’ (they are intertwined with other objects to which they cannot be reduced). Their reality and existence challenge human perception and imagination. The objects under concern remain, in other words, elusive or invisible, although their reality is unquestionable. While they defy, as a whole, immediate and unmediated human experience, we can, however, sense their existence and omnipresence.

Against this backdrop, speculative approaches dispense with necessary (phenomenological) correlations between knowledge and first-person experience, and recognize the limits of human thought and imagination to relate to events or entities that humans do not perceive directly. They invite us, instead, to empathically relate to such events and sense their effects even without unmediated access to them. While the realm of ‘experience’ is limited to ‘actual observations’ and the process of ‘learning by practical trial or proof’, the definition of ‘sense’ alludes to the ‘faculty of perception [and] feeling’. As such, it refers both to the detection of certain parameters and the emotions associated with what is revealed. Seen through this prism, sensing aspires to emotionally relate to the distress caused by certain events, whether the harm directly or only indirectly impacts us as human being. In other words, it is an invitation to engage creatively, imaginatively and speculatively with such events beyond immediate human representation and experience, in order to sense their constantly present and emerging effects in the sphere of the actual. As Morton puts it, the mere fact of thinking their existence – or sensing their effects – requires us to care about such hyperobjects.

From a governance perspective, a number of studies showed how a turn to sensing can be productive to re-envisage political perspectives and legal approaches to reconsider the more-than-human world we inhabit. As elaborated by David Chandler, sensing as a form of governance is based on correlation rather than causation, and depends on the disposition to ‘see things in their process of emergence or in real time’ (Chandler, at 22). The deployment of sensing through new technologies can play a decisive role in environmental politics, by inspiring awareness and mobilizing publics. These forms of ‘material participation’ can facilitate the capacity to detect the effects of relational interactions and cast them as either problems or possibilities. As such, ‘biosensory techniques’ can make ‘imperceptible harms perceptible’, ‘knowable’ and ‘measurable’ and permit ‘a growing awareness of planetary life’ (Johnson, at 284-285). By producing ‘forms of correlational sight’, the effects of interactions between entities are rendered perceptible, and enable ‘new forms of (datafied) relational awareness’ (Chandler, at 130). At a local level, the use of sensory technologies by individuals or communities allows for grassroots-driven, bottom-up and auto-empowering engagement with and responsivities to certain threats. Such engagements ‘“empower” citizens by shifting the infrastructures, technologies and practices of monitoring to less institutionalised arrangements’ (Gabrys, at 177). From this perspective, ‘sensing citizens’ are seen as part of ‘material-political arrangements and struggles over who generates, legitimizes, and has authority over data and how data is mobilized to make claims for environmental and other rights’ (Ruppert, Isin and Bigo, at 6). With the burgeoning trend towards a ‘digitalization of mainstream environmental and climate governance’ (Bettini et al., at 2), technology plays a key role in the constitution of socio-ecological assemblages, and promotes a novel ontology that changes the very nature of liberal governance (Beraldo and Milan, at 1). Citizens using sensing technologies are thereby recast as a ‘geo-socially networked community of sensors’ (Chandler, at 158). As such, they are able to ‘make visible politically masked risks’ and claim back their agency in shaping responses to the socio-ecological issues at stake. In the next section, we will explore how forms of ‘citizen sensing’ can facilitate individuals and communities who are sensitive to the material, interdependent world they are part of, to act as proactive agents in their own governance and through responsive care.

Citizen Sensing: From Sensing Radiations to Covid-19

In the immediate aftermath of the disastrous earthquake and tsunami that struck eastern Japan on 11 March 2011 and the subsequent meltdown of the Fukushima Daiichi Nuclear Power Plant, accurate and trustworthy radiation information was publicly unavailable. Against this backdrop, a volunteer-driven non-profit organization called Safecast was formed to enable individuals ‘to monitor, collect and openly share radiation measurements’ and other data on radiation levels. The initiative ‘mobilized individuals and collectives’ in response to risks that were perceived as extremely urgent to monitor, namely the post-Fukushima radiations burdens. Safecast can thus be regarded as a ‘shock-driven’ initiative that constitutes a ‘successful [example of] citizen [sensing] for radiation measurement and communication after Fukushima’. As this initiative grew quickly in size, scope and geographical reach, Safecast’s mission soon expanded to provide citizens worldwide with the necessary tools they need to inform themselves by gathering and sharing accurate environmental data in an open and participatory fashion. Through a form of ‘auto-empowerment’, Safecast participants were able to monitor their own homes and environments, thereby ‘free[ing] themselves of dependence on government and other institutions for this kind of essential information’. As described on Safecast’s website, this process gave rise to ‘technically competent citizen science efforts worldwide’.

(image credit: Safecast and Ushahidi (CC))

Following the outbreak of Covid-19, the Safecast collective engaged in a rapid response to the virus by setting up an information platform on the evolution of the crisis and a map of Covid-19 testing that provides a picture of where to obtain testing options in various locations (see covid19map.safecast.org). Over the years, Safecast had accumulated much experience and insights on ‘trust, crisis communication, public perception, and what happens when people feel threatened by a lack of reliable information’. Yet, the Safecast collective still struggles to be heard as ‘many scientists ignore their data’. Despite this scarce official recognition, Safecast took advantage of its experience and societal impact to rapidly respond to the current pandemic. As observed by Safecast volunteers, ‘[w]e find ourselves again trying to better understand what is happening’. In a webinar on ‘Lessons we are learning from the Covid-19 pandemic for radiological risk communication’, Azby Brown (as volunteer at Safecast and director of the Kanazawa Institute of Technology’s Future Design Institute in Tokyo) drew several links between the nature of ionising radiations and the coronavirus. By alluding to the invisible presence and constant risks posed by such hyperobjects, the invitation to the webinar started by highlighting that ‘[y]ou can’t see, smell, or taste it, but it may be a problem’, which applies equally to radiations as well as viruses. Elsewhere, Brown observed that:

 Fear of the unknown is normal, and radiation and viruses are both invisible threats that heighten anxiety. Most people have almost no way to determine for themselves whether they have come into contact with either of these threats, and they find themselves dependent on specialists, testing devices, and government and media reports. If the government and media do not provide clear, credible explanations and prompt communications, misinformation and mistrust can easily take root and spread.

For Brown, Safecast could provide a relevant risk communication perspective in the current Covid-19 context based on the experience gained after the Fukushima disaster. Despite major differences between ionising radiations and Covid-19, similarities in risks communications are worth exploring. Analogous governmental failures on risk communication were observed regarding, for example, shortcomings in rapidly conveying clear messages to the public and communicate strategies based on non-conflicting expert and policy opinions. The ambiguous and incomplete information received from the authorities generated a sense of uncertainty and distrust for many citizens dependent on single sources of official information. Against this backdrop, initiatives such as Safecast that enable people to control and monitor the presence and degrees of certain risks provide an alternative source of credible crowdsourced information. Beyond the immediate informational benefit for sensing citizens, such tools can further enable holding governments and officials into account.

At the time of writing, citizen sensing initiatives tackling Covid-19 are multiplying around the world (as listed here and here or exemplified here). Such citizen sensing practices ‘constitute ways of expressing care about environments, communities and individual and public health’ (Gabrys, at 175). As argued by Gabrys, these practices ‘are not just ways of documenting the presence of [threats]’ but are also ‘techniques for tuning sensation and feeling environments through different experiential registers’ (Ibid, 177). Granular monitoring by sensing citizens is seen as particularly valuable in times of emergencies, when governments are faced with urgent, massive and systemic risks of spatial and temporal scales that defy immediate control – such as the current pandemic. Civic ‘sentries’ can both offer relief to affected people through solidarity networks and provide resources to policy-makers and scientists through wider access to grassroots-driven and situated information ‘from below’. Citizen sensing initiatives also enable lay people, turned into ‘sensing citizens’, to retain a greater degree of agency over the production and use of the data assembled. Against the ever-increasing rise of ‘bio-surveillance states’ and the development of ‘symptoms-tracking’ and ‘contact-tracing’ apps, ‘bottom-up innovations’ might help to counter the acceleration of ‘digital surveillance’ that may be hard to scale back after the pandemic. Open access citizens’ sensed data may be considered more transparent and trustworthy by the public and convey important information on widely shared everyday lived experiences. By rendering data about real but invisible threats (and how these are perceived and felt) available through the intermediary of sensing citizens, a redistribution of (access to) information and agency in knowledge production is enabled. Finally, the increased ‘(datafied) relational awareness’ and ‘forms of correlational sight’ (Chandler, at 130) that are produced can create new appreciations of inherent yet invisible connections between human and non-human coexisting lifeforms.

Concluding thoughts

As hyperobjects, both the coronavirus and climate change defy not only our understanding but also our control. Their causes and effects are so massively dispersed across space and time that they evade unmediated appearance. The impacts of hyperobjects operate through forms of ‘slow violence’, which are ‘often attritional, disguised, and temporally latent, making the articulation of slow violence a representational challenge’ (Davies, at 2). Only partial, local and deferred manifestations can be captured through experience. Our way of relating and responding to such hyperobjects depends on temporal, spatial and emotional predicaments. The more temporally immediate, spatially proximate and emotionally tangible the threats of hyperobjects are, the greater and quicker our responses tend to be. Temporal, spatial and emotional scales are central to our ability to sense the presence of invisible threats such as viruses and changes in the climate.

While socio-ecological threats posed by climate change have been present for decades and increasingly materialized across the globe in recent years (for certain peoples more than others), responses remained relatively marginal in light of the risks at stake. Conversely, while the (health) threats posed by the coronavirus are of a relatively shorter-term (leaving aside the longer-term consequences of the socio-economic crisis it engendered), those risks triggered immediate and radical responses. The fact that the coronavirus is sensed as a ‘direct risk’ to individuals or vulnerable relatives prompts instant reactions. The sensed proximity (both temporal and spatial) of the invisible threat points to important questions. The current pandemic brought to light what climate activists deplored for long, namely that we tend to care more for risks posed to our individual conditions. A sense of emotional distance is generated by spatial and temporal gaps. This self-centred sentiment is reinforced by an anthropocentric appraisal that limits our ethics of care to the sole concern for the human species, instead of striving to ‘support the flourishing of other animals and natural things’ with which we are intrinsically entangled. While pessimistic projections on climate change have often been framed as triggering a sense of denial, paralysis or aporia, the current pandemic shows how emotions such as fear, anxiety and dread can also lead to mobilization, collective concern and action. Emotions are, ultimately, about social movement, stirring and agitation: the root of the word ‘emotion’ is the Latin emovere, which implies both movement and agitation. Despite serious risks of strategic exploitation of fear or despair by political actors instrumentalizing a ‘state of exception’, such emotions can also unleash an enhanced sense of solidarity and cohesion through increased awareness of our fragile state of coexistence and new forms of collective attachment. This is true at the human level – as we saw emerging a myriad of new forms of ‘social proximity’ – but also at a ‘more-than-human’ level, by inviting to be alert and attentive to ‘humans’ impact on and interdependence with the ‘natural’ world we are part of. Such sensibilities can give rise to a sense of cross-species shared vulnerability, where hope and grief enable to re-envision different forms of ‘collaborative survival’ (Tsing, at 4). In this short blogpost, we did not tackle any of these ethical questions in depth. More modestly, we explored how citizen sensing initiatives can help bridging the temporal, spatial and emotional distance between human (re)actions and present, yet invisible, threats through self-production of independent knowledge and agency. As Gabrys reminds us:

These practices are not just ways to rework the data and evidence that might be brought to bear on environmental problems. They are also ways of creating sensing entities, relations, and politics, which come together through particular ways of making sense of environmental problems (Gabrys, at 732).

We argued that, by recasting the actants and subjectivities involved, the technological and data-based sensors used by ‘sensing citizens’ have a world-making effect by facilitating awareness and intelligibility of certain threats. While physical isolation is being implemented (almost) globally, this doesn’t mean that we need to feel isolated and powerless. Daily citizen science is all about re-imagining scales and the potential of working together to provide a sense of connection and purpose. In reconfiguring the ‘distribution of the sensible’ – as a ‘system of self-evident facts of sense perception that simultaneously discloses the existence of something in common and the delimitations that define the respective parts and positions within it’ (Rancière, at 12) – new avenues are opened up for citizens to foresee, understand and visualize threats, and ‘(ac)count’ the damages caused (Bettini et al., at 6 and 8). Beyond the realm of immediate perception and individual or collective (re)actions, decentralized, grassroots-driven and cooperative sensing technologies may also redistribute agency to challenge more ‘official’ monitoring infrastructures and hold actors into account to galvanize appropriate political responses. Politics, ultimately, ‘revolves around what is seen and what can be said about it, around who has the ability to see and the talent to speak, around the properties of spaces and the possibilities of time’ (Rancière, at 13). These configurations of the sensible, we argue, provide an important terrain for rethinking the politics of hyperobjects such as the coronavirus and climate change.

10/04/2020

Corona and environmental law

The rapid global spread of the infectious disease Covid-19 by the SARS-CoV-2 virus is shaking the world to its foundations. Many call it the greatest health crisis since the Spanish flu of 1918. Besides a health crisis, this is also an environmental crisis. After all, environmental problems underlie the rapid rise of infectious diseases in recent decades.

Viruses are parasites that live in wild animals without those animals noticing or bothering them. This “home base” of a virus is called a reservoir. It is estimated that 320,000 species of virus live in mammals alone. Only a fraction (less than 6,000) of these have been discovered. The most recent discovery concerns SARS-CoV-2. Viruses are thought to have existed as long as there is life on Earth. They only become harmful to humans and other animal species if they somehow escape from that reservoir and spread and multiply in all sorts of very ingenious ways. The rabies virus, for example, induces a dog to bite around so that the virus can spread, the SARS-CoV-2 virus hijacks the RNA material in human cells to multiply quickly, and the influenza virus constantly adapts to bypass the immune system.

When a virus escapes and jumps to a humans is called spillover. Such a spillover can go directly from reservoir to human, but often it happens via an intermediate step, for example a pig, a horse, a chicken, a dog. Those intermediates are called a host, from which the virus infects humans. Sometimes insects act as transmitters, called vector, such as with malaria. Besides viruses, bacteria that cause deadly infectious diseases also jump from animals to humans. Q-fever and Lyme disease are examples of this. An infectious disease that originates from animals is called zoonosis.

Of course I did not invent all this myself. I largely derive it from the book “Spillover” by the American science journalist David Quammen. Although this book dates back to 2012, it is incredibly current. It is an exciting and shocking book. Exciting because Quammen takes us on a journey around the world with scientists who research viruses and viral diseases. This detective work is very risky and complex. Shocking because Quammen (following many scientists) already predicted quite precisely in 2012 that what we are now experiencing was about to happen. He even refers to a wet market in China, where wildlife is traded for consumption, as the site of the jump, and to a corona virus as a good candidate for the next pandemic. Shocking also because the book takes you along all kinds of other animal-derived infectious diseases and makes you realize that we are actually well off with SARS-CoV-2. After all, there are also viruses that show mortality rates of 70% or even 100%. In this sense, the current corona virus is still a relatively friendly virus. I leave it to your imagination to think about what the world looks like with a pandemic of a virus with a mortality rate of 70%.

The number of zoonoses has increased sharply in recent decades. The best known example is the HIV-1 virus that causes AIDS and has a death rate of 100% (if untreated). After years of intensive research, the reservoir of this virus was discovered: a particular subspecies of chimpanzee in Cameroon. It was also discovered that the jump occurred as early as 1910 (by slaughtering a chimpanzee to serve as a ‘bushmeat’), although it took until the 1960s for the virus to really spread around the world, with so far an estimated 39 million deaths and currently some 38 million infected. But we also had SARS, MERS, Marburg, Nipah, Ebola, Hanta, etc. Various types of monkeys, bats, palm civets and pangolins were found to act as reservoirs for the viruses that cause these infectious diseases.

The increase in the number of infectious diseases from animals is attributed to three factors. Firstly, humans are advancing further and further at the expense of nature, and in particular of the habitat where the reservoir species live, whereby humans are exposed to the viruses living there. It will be clear that the slaughter of wild animals in particular is a life-threatening activity. In Wuhan, such an activity, probably by a 55 year old person on 17 November 2019, caused the pandemic we are now in. Secondly, we surround ourselves with more and more pigs, cows, chickens and other animals intended for human consumption. All potential hosts. Third, the number of people has increased enormously in the last 100 years: from 2 billion in 1927 to 7.5 billion now, mostly living in cities, close together. Moreover, these people are also very eager to travel and globalization has greatly simplified the spread of a virus. A fourth factor is also expected to play an increasingly important role in the faster emergence of zoonoses: climate change. Climate change changes ecosystems and causes viruses, with their reservoir, host or vector, to go on the move. As a consequence, viruses move to areas where they did not previously exist.

In this way, zoonoses are an environmental problem. Environmental law comes to the fore as a field that needs to play a role in preventing, or at least slowing down, the spread of dangerous infectious diseases. It will be clear that the prevention of a spillover is the most source-oriented measure. Better protection of natural areas, combating poaching, banning bush meat trade and restricting wildlife trade are obvious measures for which often legal instruments already exist. These tools will need to be sharpened and better applied, as professor of environmental law Nicholas Robinson from the USA already wrote in a blog post before the virus reached the US.

In addition, we have to discuss the keeping of livestock. The question is whether we can continue the approach that is now being taken to combat diseases such as swine fever, bird flu and Q-fever, as it is becoming increasingly clear that we are on a time bomb with many undetected and potentially life-threatening viruses. I myself see this as yet another argument, besides pollution of air, soil and water and climate, to discourage meat production and consumption through regulation.

Air pollution also appears to play a role, at least with Covid-19. There is now research that shows a clear link between the amount of nitrogen deposition in an area and the number of fatalities, both in Italy/Spain/France/Germany and in England. The hypothesis is that lungs damaged by nitrogen are less resistant to this disease. Particulate matter also seems to play a similar role. In the United States and in Italy, researchers have discovered that the virus uses tiny particles in the air as a taxi and can therefore spread more easily. The US research, for example, concludes that a small increase in long-term exposure to PM_2.5 leads to a large increase in the COVID-19 death rate. These studies explain why areas with serious pollution by nitrogen and particulate matter are particularly affected. Air quality regulation is therefore also relevant for the prevention of virus-borne diseases. All this shows once again that in nature everything is interrelated.

You can also think of regulations that are intended to prevent the spread of viruses after a jump has occurred. Examples may be rules for buildings and spatial planning, such as rules with regard to ventilation systems to prevent dispersal of airborne viruses and the availability of sufficient washing facilities and disinfectant items in public space. Finally, of course, all kinds of administrative adjustments are needed to a ‘lockdown’ situation, such as the possibility to adjust legal deadlines, to replace physical inspection of documents by digital inspection, to hold hearings and court room sessions via Zoom or other online platforms, to enable digital decision-making by administrative bodies. etc. Various emergency laws are currently being prepared for this in the Netherlands and other countries. This will prove to be useful for the next pandemic. It is certain that it will come. Scientists are still warning against this: “we are in an era now of chronic emergency“.