09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren (TLS)

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO2 concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO2 can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO2 from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

 

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

 

 

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.

05/10/2018

Supporting Local Civil Society Organisations in Ethiopia

By Dina Townsend

By: Nicky Broeckhoven & Dina Townsend (Post-doctoral researchers, Tilburg Law School)

Researchers from Tilburg University and Mekelle University are currently collaborating on a project that aims to investigate the role of civil society organisations (CSOs) in securing sustainable development in Ethiopia. This project examines how CSOs have evolved and changed in response to legislative limitations on their scope of work and funding, and how this has affected their ability to work on and promote sustainable development. In this blog post, we discuss some findings from interviews conducted with a range of organisations, based both in Ethiopia and abroad. This project is part of the ‘New roles of CSOs for Inclusive Development’ Programme which investigates the assumptions underlying the civil society policy framework ‘Dialogue & Dissent’ of the Dutch Ministry of Foreign Affairs. This research is funded by NOW-WOTRO.

JV1 rural ethiopiaIn 2009, the Ethiopian government adopted a new proclamation that governs the civil society sector. At the heart of this law is a system of categorization of CSOs based on their sources of funding and the nationality of their members. The law creates three groups. The first are Ethiopian Charities and Societies who are locally registered, controlled by Ethiopians and receive no more than ten percent of their funding from foreign sources. The second group, Ethiopian Resident Charities and Societies, are organisations registered in Ethiopia and whose members all reside in Ethiopia, but who receive more than ten percent of their funding from abroad. The last group, Foreign Charities, consists of those organisations registered in another country and controlled by foreign nationals, who receive their funding from foreign sources. The significance of this categorization is that only organisations falling into the first group, Ethiopian Charities and Societies, can engage in work related to human rights and democracy, and only these organisations can work on policy advocacy and lobbying. Organisations falling in both the other groups are primarily limited to service-oriented activities.

This regulatory regime has received worldwide attention and has been heavily criticized for closing down the political space of the CSO sector. For the most part, however, this attention has been focused on the impact of the regulatory regime on foreign and foreign-funded organisations (groups 2 and 3).

Over the course of the past few months, we have been conducting a series of interviews with organisations working on and in Ethiopia, in all three groups. What this research seems to suggest is that the impact of CSO laws on local Ethiopian Charities and Societies (group 1 organisations) has been severe, but largely overlooked in current debates in both academic and political fora.

While Ethiopian Charities and Societies can engage in political and human rights work, their ability to do so is radically constrained by their limited access to funding and excessive administrative and reporting obligations. These organisations struggle to raise local funds in a country plagued by poverty and in a political environment that has long viewed CSOs as suspect and as self-serving. Those with the capacity to fund local organisations are reluctant to do so either because they do not want to be associated with a sector historically viewed as hostile by the government or because they feel these organisations lack legitimacy and effectiveness.

JV3 rural ethiopiaThis lack of funding and local support means many Ethiopian Charities and Societies face high staff turnover and have been forced to radically downscale their activities, including reducing the scope of their work and the areas in which they work. Organisations working on environmental and development issues in remote and rural areas have often been forced to shut down regional offices. In one case, an organization informed us that it had to stop its programme on food security and related activities, and focused instead on single groups and rights issues, sacrificing the holistic, multi-faceted approach they had previously adopted and shifting their focus away from sustainable development priorities.

Ethiopia is in a moment of extraordinary political change. It is a moment of change that was almost unimaginable as recently as February this year when the government imposed yet another state of emergency in response to protests in the Oromia region. Under the leadership of the new Prime Minister, Abiy Ahmed, Ethiopia has taken huge strides towards greater political liberalization over the past few months, releasing political prisoners and welcoming back the exiled political opposition. Prime Minister Ahmed has made it clear that revising the regulation of CSOs is a priority on his list of reforms. A working committee, consisting of various stakeholders, has already been formed to propose reforms in regard to a range of controversial issues, including the Charities and Societies law. For many working in the civil society sector, this is a time of great excitement and hope.

Many of the CSO employees we have interviewed, however, saw an ongoing need for foreign funders and organisations to be closely and carefully regulated, even if they consider the current regulation to be excessive. They believe that legitimate concerns remain about foreign funding, donor agendas and the potential for foreign influence in policy-making through the CSO sector. Even if the new regulatory regime will allow Ethiopian organisations to attract a greater degree of funding from foreign sources, many issues remain. For example, it is possible that greater foreign funding may do more to harm their reputations in an already hostile social environment. Many organisations are working hard to establish their legitimacy with both local communities and local government authorities and it is far from clear that an injection of foreign-sourced funding will improve those relationships. What’s more, foreign-funded projects in the sustainability sector often fail to understand the unique and complex social and environmental context in Ethiopia, resulting in projects that risk doing more harm than good.

JV2 rural ethiopiaThis raises an important question: What role could or should foreign funders play in supporting and assisting Ethiopian Charities and Societies, if any?

Our initial findings suggest that Ethiopian Charities and Societies need support of a number of kinds. These include support through research, networking, training and awareness-raising about their work and impacts. This is particularly important for those organisations working on environmental and sustainability matters who may need greater scientific input, or help communicating with farmers and communities in difficult to reach areas. This is work that can be done without directly funding these organisations and need not wait for regulatory change. Importantly, more efforts are needed to create and support sources of local funding, regardless of any changes that may come to the regulatory regime.

Our research thus far suggests that understanding the social environment in which these organisations operate is very important. In the next phase of our empirical research, we hope to extend our understanding of this environment by interviewing a range of social actors, including community-based organisations, church organisations, private sector actors, regulatory bodies and tertiary institutions.

Rural Ethiopia (All photos: Jonathan Verschuuren)

Rural Ethiopia (All photos: Jonathan Verschuuren)

JV4 rural ethiopia

 

 

19/03/2018

Citizen participation in the decision-making over airports’ expansion agenda: the Amsterdam Schiphol case

By Anna Berti Suman

 

 

schipolThe Amsterdam Schiphol Airport, representing the fourth airport in Europe in terms of passengers and air transport and the third European airport in terms of goods, has generated technical, political, economic and social discussions about its expansive policies since its inauguration in 1916. The airport is owned by the “Schiphol Group”, a limited liability company which, together with Royal Dutch Airlines KLM, controls the airport’s expansionary policies. With the advent of the deregulation in the aviation sector in the early 90s, the Dutch government had to balance the interest of the national growth linked to airport expansion with the objectives of ecological sustainability. Currently, the sector is regulated – among others – by the Noise Abatement Act (Wetgeluidhinder), the Space Planning Act (Wetruimtelijke Ordening) and the Aviation Act (Wetluchtvaart), which from 2019 will be replaced by a single legislative framework, the Single Law on Environmental Planning (Omgevingswet; Staatsblad n.156). The legislative intervention aims precisely at balancing the protection of the environment and the conservation of the ecosystem with the interests linked to economic growth.

In order to counterbalance these opposing interests, a scheme based on the so-called “dualbeleidsdoelstelling” (dual political objective) was adopted at the national level. This approach has led to the creation of numerous collaborative bodies aimed at tackling complex problems and taking difficult decisions regarding the environmental impact of the airport. An example of such structural interventions aimed at creating a dialogue between the interested parties is the Alderstafel (Alders Table), founded in 2006 and still existing. The Alderstafel, named after its former minister and social democrat president Hans Alders, is a consultative body composed by representatives of the public sector, citizens and businesses. Specifically, the Ministry of Infrastructure and the Environment forms the Alderstafel for the first category. The municipalities potentially affected by the expansion, namely the Municipalities of Haarlemmermeer, Amstelveen, Uitgeest and Amsterdam, united in the Bestuurlijke Regie Schiphol (Address Commission for Schiphol) are also represented. Among the commercial parties, the representatives of the Schiphol Group, KLM and Air Traffic Control The Netherlands (LVNL) join the Table. Finally, the civic component is represented by the Schiphol Regional Advisory Committee and the Association of Consultative Platforms, reflecting the interests of the residents of the areas surrounding the airport.

The experience of Alderstafel produced in 2008 a leading opinion on the future expansion of Schiphol for the period comprised between 2008 and 2020. The opinion, adopted unanimously by the participants of the Alderstafel, was presented on October the 1st 2008 to the Dutch Government and  to the Dutch Lower House, which subsequently translated the opinion into agreements on limits to Schiphol’s growth and environmental impact. These agreements included a series of measures to limit noise disturbance in the medium and short term for the sake of the residents’ health and wellbeing, such as changes to routes, microclimatic approaches for limiting the local disturbance, measures to combat ground noise and higher fares for noisy aircrafts and night flights.

Experiences such as that of the Alderstafel find their justification in the right to participate in the res publica recognized to all citizens, a right which is not expressly formalized in the Dutch Constitution (Grondwetvoorhet Koninkrijkder Nederlanden). As a matter of fact, the Constitution seems to be limited to enunciate the right to hold a public office (Art.3), to elect (Art.4) and to present petitions (Art.5). Furthermore, also the right to health and to live in a healthy environment entail the right to participate in decisions that can affect such rights. While recognizing these rights, the Dutch Constitution seems to assign a primary role to the authorities designated for this purpose with regard to the protection of the environment (Art.21) and health (Art.22). Consequently, a constitutional recognition of a more active role of the citizen in defending these rights is missing. As Michels[1] pointed out, citizen participation in the Dutch system, although recognized as an element contributing to the strengthening of democracy, is nevertheless often limited to representative democracy. Michels and De Graaf[2] tackle the issue by observing how citizen participation in decision-making often plays an “instrumental” rather than expressive purpose. This would derive from the fact that participatory projects are frequently designed by the government and not by citizens. The authors point out that, in most of Dutch participatory decision-making experiences, as the Alderstafel, citizens have the opportunity to contribute to decisions by providing information and suggestions, without however changing the vertical structure of the decision-making process.

This contribution suggests that  a more ‘bottom-up’ application of participatory tools to the formal decision-making process in the case of infrastructural projects with environmental impact (in this case, noise pollution) would ensure that citizen participation is not a mere “democratic experiment”. To this end, an experience of civic participation from below is contextualised and problematized, in view of searching a proactive rather than passive citizen inclusion. The experience at issue regards a group of inhabitants living in the surrounding of Schiphol who decided to challenge the claim by the Dutch Government that noise could not be measured, but rather just calculated on the basis of mathematical estimates. In the name of the right to live in a healthy environment, citizens created a system of microphones positioned on the roofs of their houses to obtain evidence of noise impact on their quiet. Through Wi-Fi connection, such information on noise levels was sent from the microphones to the residents’ computers, which in turn transmitted this data to a central server via the network. The collected noise data was subsequently recorded on a website (currently called “Sensornet”). The publicly accessible website allowed users to view graphs of noise pollution in the surroundings of the Schiphol area, either in their entirety or specifically for each microphone. Difficulties in conducting the measurements, such as the problem of interference from other noises, were solved by triangulation methods in the arrangement of the microphones for each measuring station. Being an initiative based on unsophisticated technologies, there was the problem of microphones calibration and accuracy of the collected data. However, the detail and granularity of the information provided by the visualization of the acoustic loads recorded in 25 observation points during continuous periods compensated for possible technical weaknesses.

The initiative attracted the attention of a wider audience, composed not only of activists and local inhabitants, but also of influential non-governmental organizations, the press and public bodies. The platform from a local initiative became a noise measurement infrastructure at the national level. At the local level, numerous municipalities opposing the system of noise assessment supported by the government, adhered instead to the system born ‘from below’. A professional foundation, “Geluidsnet”, took over the “Sensornet” platform in order to create a joint venture between the bottom-up noise measurement infrastructure and 10 municipalities located in the affected areas. “Sensornet” currently appears as an established noise measurement platform that lists, among its customers, numerous Dutch municipalities (such as Gemeente Zoetermeer, Borne and Pijnacker-Nootdorp) and government organizations such as RIVM (the Dutch Institute for Health and the Environment) and ProRail (the public organization in charge of the Dutch railway network). Although the majority of “Sensornet” customers are now governmental organizations, the platform still provides an easy and accessible method for citizens to actively contribute in the measurement of noise pollution.

Although there has not been a substantial change in how the Dutch Government is assessing the noise, it is interesting to mention some concrete actions taken by the Schiphol Group that seems suggesting a greater attention to the interests of the citizen. For example, the airport has introduced specific flight techniques (routing) for departure and landing aimed at reducing the noise. In addition, the airport intends to minimize the background noise generated at the take-off of the planes through the use of specific barriers (ridges) adjacent to the slopes.[3]

The discussion on a proper appreciation of the contribution of the concerned citizens in the assessment of noise seems particularly timely at present days when the expansion of Lelystad Airport is under discussion. The Schiphol Group, also owner of this latter airport since 1993, today plans to expand Lelystad Airport in order to accommodate up to 10,000 flights in 2019, which is expected to become 45,000 flights in the following decades. Various activist groups oppose the expansion due to the project’s feared environmental and public health impact. To date, the Dutch Government still seems to prefer a calculation of the noise disturbance rather than its measurment.[4] Overall, it appears that the bottom-noise monitoring initiative had significant effects on local and national politics. However, Lelystad’s current expansionary agenda indicates that, in the Netherlands, the effective inclusion of the citizens in the decision-making process over infrastructural projects with high environmental impact is still scarce.

The present contribution through the analysis of two participatory tools, one from the top (the Alderstafel) and one from the bottom (the “Sensornet” noise measurement system), highlighted how citizens’ participation in environmentally impacting decisions can have a merely passive or, rather, a proactive role. In the first case, there is the fear that citizen participation becomes limited to a mere democratic experiment, an experiment that would not satisfy the citizens’ needs and would not lead to the resolution of the conflict. On the other hand, experiences of ‘bottom-up’ civic participation, although more responding to the needs of the citizen, would be more difficult to be accepted by the institutions responsible for managing the environmental issue.

Such participatory experiences aimed at creating a dialogue between interested parties in order to prevent or manage possible environmental conflicts could qualify as environmental mediation. Yet the experience of the Alderstafel, although representing a successful form of environmental mediation, nevertheless lacks the ability to ensure a proactive citizens’ contribution. Differently, the second experience, “Sensornet”, has effectively reconciled the needs of the local authorities, the municipalities concerned, with those of the citizens. Nonetheless, such bottom-up initiatives, as tending to reverse the vertical decision-making process, are difficultly compatible with the institutional status quo, as also proven by today’s expansion agenda of Lelystad Airport.

 

[1] Michels, A. (2006) ‘Citizen participation and democracy in the Netherlands’, Democratization (13)02: 323-339, doi: 10.1080/13510340500524067, p.323.

[2] Michels, A. & De Graaf, L. (2010) ‘Examining Citizen Participation: Local Participatory Policy Making and Democracy’, Local Government Studies (36)4: 477-491, doi: 10.1080/03003930.2010.494101, p.488.

[3] Schiphol Group (2018) Buitenschot – From ground noise reduction to land art park.

[4] De telegraaf (2017) Fouten bij berekening geluid Lelystad.

 

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This post is partly inspired by the article published by Anna Berti Suman and titled “Challenging risk governance patterns through Citizens Sensing: the Schiphol Airport case”, recently published in the journal “International Review of Law, Computers & Technology” with ISSN: 1364- 6885, DOI: 10.1080/13600869.2018.1429186.

12/03/2018

Energy dual pricing as a harmful fossil fuel subsidy: What the WTO can do

By Anna Marhold

Energy dual pricing has been a contentious topic in the WTO for decades, but now the focus is on its harmful environmental effects. Dual pricing encourages wasteful consumption of fossil fuels and displaces cleaner sources of energy. There are several ways in which the WTO can and should contribute to reforming and phasing out fossil fuel subsidies, and tackling dual pricing practices is one of them.

 What is energy dual pricing and why is it harmful?

Energy dual pricing is a practice through which resource-endowed states sell their energy resources at significantly lower prices on the domestic market – for instance, through their monopolistic state trading enterprises – as compared to the price on the export market. The main reason for states to maintain dual-pricing policies is to provide their domestic energy consumers with cheap energy and their intensive industries with low-cost fuel inputs. Russia, Ukraine and the OPEC members, notably Saudi Arabia, are some of the countries that have used dual-pricing policies over the last decades.

It is debatable whether dual-pricing policies are WTO inconsistent per se, but it is certain that these policies are trade-distorting and have an impact on international trade. More importantly, considering the way dual-pricing policies are administered, they can fit into the broader category of environmentally harmful fossil fuel subsidies. Dual pricing allows setting the domestic price of energy from fossil fuels artificially low: countries that maintain these policies thus encourage the burning of “cheap” fossil fuels at below global market prices, to the detriment of switching to cleaner forms of energy. In this way, dual pricing undermines the competitiveness of green energy and contributes to increased CO2 emissions in the atmosphere.

Constraining dual pricing under existing WTO rules

Although the WTO was primarily created to deal with matters that affect cross-border trade, the global trade body can, and should, contribute positively to eliminating fossil fuel subsidies, including dual pricing and its negative impacts on the environment. For instance, a WTO member may raise a case in dispute settlement if its domestic industry suffers significantly from another WTO member’s dual-pricing policies that result in cheap energy inputs for competing industries.

If administered in a way that restricts quantitative exports of the energy resource, dual-pricing measures may fall foul of Article XI.1 of the GATT, which prohibits quantitative import and export restrictions on goods. GATT Article XVII on State Trading Enterprises (STEs) could also serve as a basis for a potential claim, as an STE of a WTO member maintaining dual pricing policies may be found to behave in a discriminatory manner.

More importantly, there is also a good argument to be made that dual-pricing practices constitute prohibited or actionable subsidies – Article 3 and 5 of the Subsidies and Countervailing Measures Agreement (ASCM). This would depend on whether the dual-pricing measure fits the definition of Article 1 ASCM. As an example, the government provision of cheaper energy inputs for energy intensive industries could be considered a “government provision of goods and services”.

Considering the case law already in existence, the Anti-Dumping Agreement (ADA) is perhaps an even more straightforward tool in countering the negative impact of dual pricing. It could be argued that dual pricing is a case of “reversed input dumping”; in other words, that goods which benefit from cheap energy inputs – by means of below-market energy prices – are dumped on the market of the importing country (for example steel products) due to cheap domestic inputs. At present, there are several such cases pending in the WTO: European Union – Cost Adjustment Methodologies and Certain Anti-Dumping Measures on Imports from Russia and EU – Anti-Dumping Measures on Certain Cold-Rolled Flat Steel Products from Russia.

While environmental concerns may not be the primary motive for a dual-pricing case in WTO dispute settlement, it may have positive knock-on effects.A dispute settlement case would certainly attract attention to the necessity of phasing out dual-pricing policies. It would also send a strong signal that these policies are not immune to being challenged in the WTO.

Moreover, such a move could back recent efforts to put the important issue of fossil fuel subsidy reform on the WTO radar. In fact, during the WTO’s Eleventh Ministerial Conference (MC11), held recently in December 2017, a group of WTO members issued a ministerial statement about the need to  reform fossil fuel subsidies, seeking to advance discussion in the WTO on achieving ambitious and effective disciplines for fossil fuel subsidies, including through enhanced transparency and reporting.

Inspiration from EU free trade agreements

Beyond existing rules, WTO members should consider revisiting the negotiation of a prohibition of dual pricing within the WTO legal framework. This could be part of larger efforts to reform subsidy rules. Although efforts to include a prohibition on dual pricing have been unsuccessful in the past, momentum has been created in view of climate change mitigation commitments and the UN Sustainable Development Goals.

Moreover, the recent accomplishments by the EU serve as a successful example of tackling dual pricing: the topic of dual-pricing prohibitions has been raised in several stages of Transatlantic Trade and Investment Partnership (TTIP) negotiations. More importantly, an actual prohibition of dual pricing has been taken up in the trade-related energy chapter of the recent EU–Ukraine Deep and Comprehensive Free Trade Agreement.

Creating policy space to support green energy

Aside from using the multilateral trading system to curb dual pricing, its negative environmental effects can be offset by creating more policy space for green energy. For this, it is essential to redraft and rethink current subsidy rules in a sophisticated manner.

The WTO could learn from the options provided by the EU rules on state aid: the Commission Guidelines on State Aid for Environmental Protection and Energy 2014-2020 offer detailed instructions to EU member states on how to design their support for green energy. The goal of the guidelines is to propose a market-based approach towards green energy support schemes, while at the same time ensuring that these schemes remain in line with EU State aid law. The WTO could develop similar guidelines for its members, thereby ensuring that members design their green energy support schemes in a WTO-consistent manner.

Moreover, state aid rules provide a set of accepted exceptions set out in the General Block Exemption Regulation (GBER). The regulation declares certain elaborate categories of state aid towards green energy as being compatible with the internal market. These options could serve as a model for WTO members when considering the wider reform of subsidy rules.

Forward action

The EU examples may serve as an inspiration for longer-term solutions within the WTO framework. At present, apart from exploring the options under existing rules, it is crucial that WTO members continue to push for including the topic of fossil fuel subsidy reform on the WTO’s agenda. The recent ministerial statement on fossil fuel subsidy reform is a good start, and follow-up actions are now needed to take reform efforts forward. Most importantly, the demandeurs of fossil fuel subsidy reform will need to continue stressing the importance of fossil fuel subsidy reform in view of climate change mitigation.

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This contribution was originally published as a blog for the International Centre for Trade and Sustainable Development, Geneva, and is available through this link. It is derived from the paper Fossil Fuel Subsidy Reform in the WTO: Options for Constraining Dual Pricing in the Multilateral Trading System commissioned by ICTSD and authored by Anna Marhold. It is part of the E15 engagement track  through research and policy dialogues on fossil fuel subsidies.

Category: Energy, WTO
24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

By Jonathan Verschuuren (TLS)

In the Netherlands, no cases have been lodged against emitters of GHGs yet. This is somewhat surprising, given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands and given the fact that around 60% of Dutch land is prone to flooding, either by rivers or by the sea. An extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.[1] It is estimated that the Dutch government needs to spend 26 billion euros for coastal and river adaptation measures alone.[2]

(Photo: Flickr user Shell)

(Photo: Flickr user Shell)

Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.[3] There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.[4] The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.[5] Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later.

The flood of cases against RDS and several other major oil companies in the United States may well be the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.[6] In January 2018, New York City filed another lawsuit in a federal court, again against RDS as well as BP, Chevron, ConocoPhillips and Exxon Mobil, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.[7]

The complaint in the latter case is a very interesting document that in very strong and persuasive words argues that these companies’ actions constitute an unlawful public and private nuisance and an illegal trespass upon New York City property because they produced, marketed, and sold fossil fuels ‘for decades and at ever more dangerous levels while knowing of the harm that was substantially certain’ and that lead to ‘damage from climate change, including inundation, erosion, and regular tidal flooding’ of the city’s property and to ‘imminent threats to its property, its infrastructure, and the health and safety of its residents’.

As stated above, the case is entirely focused on adaptation costs. The complaint refers to a number of actions already taken on which billions of dollars have been spent:

-        Protect vulnerable residents during increasingly severe heat waves (which already kill more New Yorkers each year than all other natural disasters combined)

-        Reinforce NYC coastline and elevate its infrastructure within the floodplain.

In addition, it looks ahead to future adaptation measures that need to be taken:

‘the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline (…) [such as] enlarge existing storm and wastewater storage facilities and install additional facilities and associated pumping facilities and infrastructure to prevent flooding in low-lying areas that are vulnerable to rising seas and increasingly severe downpours.’ According to the complaint, ‘these are long-term design and construction projects that must be built to last for decades, often up to fifty years or more. The City must take these actions as soon as possible in order to protect public health and safety and City property and infrastructure. The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.’

What is particularly interesting in this case, is the emphasis that is placed on the special position that these big oil companies have, not just because of their large share in global fossil fuel production, but also because of their role in misinforming the public. The complaint devotes several pages of text to the campaign orchestrated by the oil companies to cast doubt on climate science and gives detailed examples of covert attempts to mislead the public. The complaint concludes:

‘Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their in-house scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry. In this coordinated effort to discredit the science, which began in earnest during the 1990s and has continued in a subtler form even in recent years, Defendants and their agents and advocates have made the alleged “uncertainty” of climate science their constantly-repeated mantra. The purpose of this campaign of deception and denial was to increase sales and protect market share.’

In my view, these cases against ‘big oil’ in the US may very well pave the way for a global flood of litigation against oil companies. The recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.[8]

Another interesting recent development is the growing pressure on investment banks and pension funds to divest in fossil fuel related projects.

In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’[9] The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be admissible by any National Contact Point for the OECD Guidelines.[10] Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

 

[1] Jonathan Verschuuren, Jan McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1:2 Transnational Environmental Law 355-379.

[2] https://deltaprogramma2016.deltacommissaris.nl/viewer/paragraph/1/deltaprogramma-/chapter/het-deltafonds-financieel-fundament-onder-het-deltaprogramma/paragraph/de-financiele-opgaven-van-het-deltaprogramma

[3] Paul Griffin, The Carbon Majors Database. CDP Carbon Majors Report 2017 (CDP 2017), 14.

[4] On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website.

[5] See in more detail, Nicola Jägers, Katinka Jesse, Jonathan Verschuuren, The Future of Corporate Liability for Extraterritorial Human Rights Abuses: The Dutch Case against Shell, (2014) American Journal of International Law Unbound “Agora: Reflections on Kiobel”, e-36/e-41.

[6] Michael Burger, Local Governments in California File Common Law Claims Against Largest Fossil Fuel Companies, blogpost Sabin Center for Climate Law, 18 July 2017, http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/, and Jessica Wentz, Santa Cruz Joins Other Municipalities Suing Fossil Fuel Companies for Damages Caused by Climate Change, blogpost Sabin Center for Climate Law, 8 January 2018, http://blogs.law.columbia.edu/climatechange/2018/01/08/santa-cruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climate-change/.

[7] Nicholas Kusnetz, New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest, Inside Climate News 11 January 2018, https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio . The full text of the complaint is available through this blogpost.

[8] Expert Group on Global Climate Change, Principles on Climate Obligations of Enterprises (Eleven International Publishing 2017).

[9] The full text of the complaint (in English) is available online through https://www.oxfamnovib.nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen.

[10] According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klacht-tegen-ing-in-behandeling-genomen.

 

 

 

 

 

Category: Adaptation, Climate
14/09/2017

Understanding and Enhancing the Contribution of International Law to Lion Conservation

By Melissa Lewis

As one of the world’s most iconic and charismatic megafauna, the lion, Panthera leo, is a species whose conservation attracts international concern from conservationists and the global public alike. However, lion range and numbers have declined markedly over the last two decades.

In a recent publication in the journal Nature Conservation, two members of the Tilburg Environmental Law Team (Arie Trouwborst and Melissa Lewis) collaborated with biologists and social scientists from the University of Oxford’s Wildlife Conservation Research Unit  (WildCRU) to assess the present and potential future role of international wildlife treaties in lion conservation.

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Lionesses, Kruger National Park, South Africa (photo: M. Lewis)

Like other species of large carnivores, lions present a special set of conservation issues from a legal perspective due to their great spatial requirements, elevated human-wildlife conflict potential, and role as both keystone and umbrella species. For these reasons, and because of the transboundary nature of many lion populations and some of their threats, international law plays a distinct role.

Lion conservation has featured prominently on the agendas of certain wildlife treaties – including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and, more recently, the Convention on the Conservation of Migratory Species of Wild Animals (CMS). In October this year, for instance, Parties to the latter Convention will decide whether to list the lion on one of the CMS’s appendices, and will further consider the adoption of several draft decisions of significance for lions and other African carnivores. Although sometimes less obvious, a range of other treaties also play a role in the endeavor to conserve the world’s remaining lion populations. For instance, 39 of the sites that are currently designated as Wetlands of International Importance under the Ramsar Convention, and 18 of the areas that have been designated as World Heritage Sites under the World Heritage Convention, are of actual or potential significance to lions.  A myriad of regional instruments are also relevant – examples including the African Convention on the Conservation of Nature and Natural Resources, the SADC Protocol on Wildlife Conservation and Law Enforcement, the various treaties establishing transfrontier conservation areas (TFCAs), and even the Bern Convention on the Conservation of European Wildlife and Natural Habitats.

Lion, Kruger National Park, South Africa (photo J. Lewis)

Lion, Kruger National Park, South Africa (photo J. Lewis)

In this paper, we identify not only a substantial body of relevant international wildlife law, but also a significant potential for enhancing these instruments’ contribution to lion conservation. We argue that the time is right to invest in such improvements, and we provide both general and treaty-specific recommendations for doing so. With the 2017 CMS Conference of the Parties fast approaching, the paper’s support for augmenting this Convention’s role in lion conservation is especially noteworthy. The paper concludes that: 

“Given the fragmented collection of treaties which currently apply to lions and the absence of adequate international instruments and/or institutions for lion conservation in at least portions of the species’ range, an important role appears, in principle, to be reserved for the CMS, both in terms of coordination and gap-filling. Listing lions under the Convention would be a logical step in this regard … [and] would both signal the need to develop more elaborate species-specific frameworks for lion conservation and sustainable use and increase the avenues available for achieving this.”

It further provides recommendations for making optimal use of the Ramsar and World Heritage Conventions and TFCA agreements in sites of importance to lions; outlines possibilities for adjusting CITES’ restrictions on the trade in lions and their parts; and emphasizes the importance of maximizing range states’ participation in, and compliance with, wildlife treaties, and of promoting strategies which involve the local people who live alongside lions.

 

Arie Trouwborst, Melissa Lewis, Dawn Burnham, Amy Dickman, Amy Hinks, Timothy Hodgetts, Ewan A. Macdonald & David W. Macdonald (2017) “International law and lions (Panthera leo): understanding and improving the contribution of wildlife treaties to the conservation and sustainable use of an iconic carnivore“. Nature Conservation 21: 83-128.

07/09/2017

Movie Review: Unlocking the Cage

By Ismet Öncü

(Student, Tilburg University)

THE NON-HUMAN RIGHTS PROJECT’S ATTEMPTS TO GRANT LEGAL PERSONHOOD TO CHIMPANZEES: HEROIC OR ABSURD?

Abstract

The DNA of a chimpanzee matches for nearly 98% with the DNA of a human. Does this mean that they should be entitled to the same rights? As of today the main question to determine whether you have a right or not is: are you a human being? In Unlocking the Cage D.A. Pennebaker and documentary veteran Chris Hegedus follow Steven Wise in his extraordinary challenge to break down the legal wall that separates animals from human beings. His team’s, the Nonhuman Rights Project, objective is to transform an animal, more specific ‘’non-human’’ animals, e.g. chimpanzees, whales, elephants, from a ‘’thing’’ with no rights to a person that has legal protection and legal personhood. Wise and his team are making history by filing the first lawsuits to achieve this goal.

Introduction

unlocking the cageThe movie tells a story about the Non-human Rights Project (NhRP). This is an animal rights organization that tries to establish legal personhood for certain ‘’non-human’’ animals.  These non-human animals are for example apes, elephants and cetaceans etc. It is possibly the only organization in the United States that puts time into achieving actual legal rights for animals. Their goal is to achieve a change in the legal status of non-human animals from just ‘animals’ into a legal person who possesses (fundamental) legal rights (e.g. the integrity of the body or bodily liberty). They try to achieve their goals through litigation, advocacy and education. Besides the already mentioned goal of changing the common law status of non-human animals, their goals are furthermore to consider other qualities that may be sufficient for recognition of nonhuman animals’ legal personhood and fundamental rights: inspiration is drawn from evolving standards of morality, scientific discovery, and human experience. The NhRP also develops local, national, and global issue-oriented grassroots campaigns to promote recognition of nonhuman animals as beings worthy of moral and legal consideration that have their own inherent interests in freedom from captivity, participation in a community of other members of their species, and the protection of their natural habitats. The organization aims to build a broad-based coalition of organizations and individuals to secure legally recognized fundamental rights for nonhuman animals and to foster understanding of the social, historical, political, and legal justice of their arguments and the scientific discovery of other species’ cognitive and emotional complexity that informs them.

The organization consists of a diverse team but what they have in common is an affection for law and animals. The team includes animal rights lawyers, legal experts and law students who work on a voluntary basis. Steven Wise is the organization’s “leader”. Wise is a respected teacher and author in the field of animal rights and animal jurisprudence. His subject ‘’Animal Rights Law’’ is taught at various universities across the United States.

The movie follows the ambitious efforts of Wise and his team in the period 2013 – 2015. The team tries to make history by going to the courtroom, attempting to improve animals’ legal position and give them rights. Their first step is the establishment of these rights for apes, elephants and cetaceans and after that other animals should follow. These animals were chosen because they have all been studied and it is determined that they have highly developed cognitive skills and awareness of themselves. Wise calls this a ‘’theory of mind’’.

Wise sets out to prove that cognitively complex animals (like the animals mentioned above) do have the capacity for limited personhood rights. Pennebaker and Hegedus have been following Wise’s and his teams’ historical battle for two years in order to understand what it means to be autonomous and whether sentient beings should have the right of freedom.

In the movie we see Wise and his team going around the state of New York in order to look for apes and see in which circumstances they live. Some apes were held in sanctuaries where they try to communicate with their human keepers. Other apes on the other hand, are being kept solely for the sake of being kept. Wise’s team builds court cases around those latter non-human animals (apes in this matter). As a starting point, Wise selects individual animals (Merlin and Koko for example) and his main goal is to establish legal personhood for these particular animals. His team takes action step by step in order to achieve this goal. The question is how fast this will happen. ‘’This is the end of the beginning’’, to quote Wise at the end of the movie.

The movie

Since the past decades, the fight for animal rights has become a growing movement. It is a movement with many fronts and expressions, from principled vegetarianism (but not exclusively) to the denouncement of animal experimentations. Unlocking the Cage focusses on the American front and on one intrepid animal advocate.

The movie revolves around the law suits lodged by the NhRP. Tommy is a chimpanzee who was isolated in a garage. Wise and his team demanded in the lawsuit that Tommy would be released and transferred to a Florida sanctuary. The lower judge was impressed by Wise’s arguments and directed the lawsuit to the Appellate Court in Albany. It was in 2014, in that case, that judges openly discussed the matter regarding legal personhood of non-human animals. Nevertheless, the results were unfavorable: Tommy was moved to a zoo and remained in deplorable conditions.

The next case involved a chimpanzee named Kiko. This case evolved in a different way compared to Tommy’s case. This case was a great showcase of the legal disagreement that exists on the question whether to enlarge the legal system by attributing legal rights to non-human animals or not. The case was rejected in first instance, but an appeal is planned before the appeals court.

The chimpanzees in the final case, Hercules and Leo, were used for research at New York’s State University. This was the case that truly challenged the court. Wise argued against the New York’s assistant attorney general by making a plea that made judge Barbara Jaffe question whether a chimpanzee should not be deemed a person for the limited purpose of permitting the writ of habeas corpus.

My opinion

(Ismet Öncü)

(Ismet Öncü)

In the past it was assumed that legal persons were individual human beings only. However, the personhood of corporations has also been affirmed. The personhood of corporations is routinely used as a liability and litigation tool: the question in this matter is whether the definition of “personhood” can also be expanded to include non-human animals? Can we compare the personhood of a corporation or a human’s personhood to the animal personhood? The former two can result into their own liability (and thus can results into liability for damages). This is not the case with animals. They are not entirely free from harm and exploitation.

While fervent animal rights advocates have argued for personhood for animals, the critics denounce the assertion as absurd. There has been some skepticism regarding this matter. However, the animal rights movement has slowly and zealously been inching for a while. In the world of animal law Wise is a known person and his achievements are inspiring. Below I will discuss my opinion on the pros and cons of the movie.

Pros

I can really recommend this movie for animal lovers, especially for those who are in law school. The movie is well paced and very informative. Unlocking the Cage has started the conversation about animal rights and since this movie more and more people started to listen. Speciesism is causing the destruction of the planet earth and this movie gives insight into that matter. Unlocking the Cage takes the next step in human evolution.

The movie was praised by national (American) and international media. They stated that the movie was a ‘’heroic courtroom thriller’’.

In my personal opinion the movie was a real eye-opener into a matter that was unknown territory for me. It is inspiring to see how passionate and with so much conviction Wise and his teams are committed to reaching their goals.

Contras

On the other hand, some of Wise’s viewpoints seem to be counterintuitive. How can an animal with no language or any other form of human culture have standing to seek redress from human institutions? Animals cannot start a legal process; thus it must be done on behalf of these animals. But do we have adequate animal advocates who are willing to do that? This is still a matter that remains unclear. Beside these procedural issues, practical concerns need to be addressed too. In the courtrooms, for instance, will these ‘’animal cases’’ be judges in front of the same judges where people start their lawsuits? Under which jurisdiction? Civil? Criminal? Will we need a separate jurisdiction within our legal system in order to deal with these animal cases? One judge’s decision on whether  a chimpanzee can have personhood ran over 30 pages and that says a lot. There are a lot of question that still need to be answered. Nevertheless, this does not devaluate the efforts of Wise and his team to bring awareness to the (legal) position of non-human animals.

Furthermore, I found that some of Wise’s arguments are stronger than others. He states that apes, elephants and cetaceans could be seen as ‘’legal persons’’ based on their ‘’theory of mind’’ and other human attributes. But is this not still a matter of scientific debate? It could be possible, in my opinion, to deny that these non-human animals Wise selects, are smart animals. It seems an arbitrary line to draw. Moreover, his intimation to a reporter that a chimp’s captor should move into a cage, in order to see if he likes being in there, seems a bit foolish to say the least. We, humans, do also not like to inhabit underground tunnels but this does not mean that rats are not perfectly happy there.

The goal of this movie is to create awareness but in my opinion Wise’s accomplishments disappoint at this point (apart from the moral victories). Wise and his team have not achieved much in those 2-3 years the camera crew of Hegedus and Pennebaker followed them. The things they do accomplish had already been covered in the news. This makes the movie feel kind of redundant. Most of the time the viewer looks at Wise’s appearances in various TV shows (i.g. The Colbert Report). Those parts are not trailblazing. The most interesting parts is the footage which provides a look into the New York State Supreme Court, where we can follow Wise arguing for his petition. In my opinion this back fired a bit, because the judges were asking genuinely probing questions and that made the whole matter seem even murkier. In short, this movie did not (yet) achieve much in the interesting matter of personhood of non-human animals.

Another question is whether there is a taxonomic reason for this matter to be made into a movie.  Some biologists have argued that there is no legitimate taxonomic reason to consider humans and apes as part of the same gen. The discussion on this subject has not yet ended in literature.[1] This matter goes back to Dawkin (2004) who popularized the notion that we (i.e., human beings) are the ‘’third chimpanzee’’. However, it is still not clear if human beings are great apes or not. This is important for our conceptualization of a human being. The scientific evidence in support of the point of view that we are great apes lies in anatomical and morphological arguments. Marks (2009) refers in this matter to the common ‘’Y5’’ pattern, a rotating shoulder, fused caudal vertebrae and a large and complex brain. On the other hand Dunbar (2008) claims that human beings differ from great apes. The critical aspect in his point of view lies in our imagination (e.g. religion, story-telling). In my opinion humans can be considered as humans and great apes are our closest extant relatives. It is our own ego that insists on dividing the line between humans and apes.

Conclusion

Overall Unlocking the Cage remains a great movie which gave me insight into the matter of animal legal rights. Unless the fact that I gave more cons than pros, I can really recommend (and I already did) to anyone who has an affection for law and animals combined. This movie captures a shift in our culture, as the public and juridical system show receptiveness to Steven Wise and his team’s impassioned arguments. Unlocking the cage is an intimate look at a lawsuit that is unprecedented and that could forever change our legal systems, if additional specifications, in my respect, are made.

 

[1] One may refer to Dawkins, R., The Ancestor’s Tale (2004). Bouston: Houghton Mufflin. Dunbar, R., Why Humans Aren’t Just Great Apes (2008). Ethnology and Anthropology. 3:15-33. Marks, J., Why Be Against Darwin? Creationism, Racism, and the roots of Anthropology. Yearbook of Physical Anthropology, 55: 95-104.

Category: Animal Law
28/08/2017

Natural Visions: The Aesthetics of Environmental Law

By Benjamin Richardson

(Professor of Environmental Law, University of Tasmania; Tilburg University’s Global Law Visiting Chair 2017)

Among the most reproduced photographs in the world are NASA’s first images of Earth — most famously the iconic Blue Marble image taken by the Apollo 17 crew in 1972 from a distance of 45,000 km from the planet’s surface. It profoundly moved people with a stunning picture of a beautiful yet vulnerable planet, and helped propel the global environmental movement.[1]

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Blue Marble, 7 December 1972, NASA Apollo 17 mission.

Aesthetics can touch our most visceral feelings about the natural environment in ways that technical data or expert reasoning cannot easily conjure. Majestic scenery, charismatic animals, and serene landscapes are among the perceived glories of natural environments that motivate people to care for them. An Italian and German may not understand one another’s tongue but can share admiration of a sublime mountain range or exquisite bird of paradise. Such affection can translate into stronger legal status for such places and species, such as creation of a national park or protection of treasured wildlife.  In Tasmania, where I live, nature’s beauty of this genre is never far away.

Aesthetic values have ostensibly informed numerous environmental laws. Great Britain’s National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’ (section 5(1)). The goals of the United States’ National Environmental Policy Act 1969 include ensuring ‘esthetically and culturally pleasing surroundings’ and preserving ‘important historic, cultural, and natural aspects of our national heritage’ (42 U.S. Code s. 4331). Internationally, the World Heritage Convention of 1972 safeguards ‘natural areas of outstanding universal value from the point of view of … natural beauty’ (article 2). In domains inhabited by people, municipal land-use planning commonly incorporates aesthetic criteria to protect architectural gems, historic streetscapes and bucolic countryside.

But we should not infer that aesthetic values are environmental law’s leitmotif – indeed quite the contrary. Scientific knowledge and economic values dominate rationalisations for environmental decisions. Arguments over how to deal with climate change or save endangered species are typically rationalised around the scientific evidence or economic costs and benefits. These criteria supposedly inject ‘objectivity’ and ‘neutrality’ into often deeply politicised disputes over the environmental impacts of developments. Public participation is another valorised input into environmental governance, as endorsed in most legislation and the Aarhus Convention; however, citizen participation (which can be a means to express aesthetic values) in practice is often managed for appearances in order to secure public acceptance of decisions already reached on other grounds.[2]

Is aesthetics thus only to hold a minor place in environmental governance, and what issues must we address in defining its role? I believe that beauty and other aesthetic values should have a more prominent place here. While science and economics supply a variety of reasons to conserve nature, such as revealing its biodiversity values or economic benefits, these disciplines do poorly in emotionally engaging people with their environs. Abundant environmental science has struggled to leverage fundamental shifts to our environmental attitudes and practices, as evident in continuing deforestation, industrial development and pollution. A sense of place or other personal connection to an environment grows when its beauty, spirituality or other sensuous qualities uplifts one. Empirical research shows positive correlations between specific landscape or environmental features and human wellbeing.[3] And individual well-being can lead to social change: as Aldo Leopold presciently observed, ‘we can only be ethical in relation to something we can see, feel, understand, love, or otherwise have faith in’.[4]

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

Finding beauty in nature’s small stuff: Mycena interrupta, Blue Mountain View, Tasmania (photo: B. Richardson).

But any appeal to enrich legal governance with environmental aesthetics faces several challenges. Firstly, the aesthetic values that tend to captivate us are frequently associated with ‘specialness’ – perhaps a rare species or sublime landscape. But the ‘specialness’ benchmark has drawbacks: we should protect species before they become so endangered or rare as to move us, and pretty landscapes are not necessarily more ecologically important than a ‘mundane’ grassland or swamp. Even human-dominated landscapes punctuated by billboards and buildings, or golf courses and garbage dumps, can harbour wildlife adapted to living in our midst.[5] If we are to leverage action through environmental aesthetics, we must find beauty or other aesthetic values more widely than just within ‘special’ enclaves.

Secondly, because of the common assumption that the human response to aesthetics is subjective rather than factual or rational, aesthetic judgements determined by the beholder rather than the object can be viewed as deficient. Colloquially, we typically call this bias ‘beauty being in the eye of beholder’. Some researchers identify a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the undulating African savannah.[6] Psychologists also identify a shared taste for fractal patterns in scenery, ‘featuring patterns that repeat at increasingly fine magnifications’ such as clouds, rivers and coastlines.[7] But while an aesthetic sense is surely a universal human trait, it is both personality- and culture-bound, with different artistic expressions and preferences found between and within cultures: a lover of Van Gogh’s delicate Irises might easily spurn Mark Rothko’s austere No.61 (Rust and Blue).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Trashing nature’s beauty: somewhere in Tasmania (photo: B. Richardson).

Furthermore, in our urban demography we often aesthetically engage with nature not directly but vicariously — through David Attenborough-narrated films, lavish coffee-table books or soothing nature sounds CDs. Artistic representations of landscapes, flora and fauna are among humankind’s earliest cultural expressions, such as the 20,000 years old Palaeolithic paintings adorning the Lascaux Caves in France and Aboriginal rock art in Australia of even older vintage. The arts thus mediate our access to environmental aesthetics. Natural beauty has become an essential ‘resource’ for activist organisations. In Tasmania, it was especially evident in Olegas Truchanas’ and Peter Dombrovskis’ sublime photographs to rally public interest in saving Lake Pedder and the Franklin River respectively from dams, [8] and again today to help conserve the imperilled Tarkine rainforests through the ‘Tarkine in Motion’ festival.[9] While these examples tend to reinforce that ‘specialness’ bias, the arts are increasingly enlisted to conserve ‘ordinary’ nature; recent successful examples include the Tasmanian Land Conservancy’s ‘Poets and Painters’ (2016-17) and ‘Skullbone Experiment’ (2014) that engaged artists to educate the public about the ecological and aesthetic values of two of the Conservancy’s private reserves in relatively unimposing (but ecologically valuable) landscapes.[10]

Further challenges with environmental arts include that they sometimes cater to an unrepresentative socio-economic demography (ie, urban, affluent, educated), thus missing the rural and poorer communities who often have more at stake directly in the environmental controversies. And some people might ‘read’ landscapes not for their beauty but for other aesthetic values such as having a spiritual connection, as in Aboriginal Dreamtime stories. Going beyond the ‘purview of the “landscape” of other received aesthetic categories of environmental perception’, Alan Braddock recommends an ‘eco-critical’ approach that emphasizes ‘environmental inter-connectedness, sustainability, and justice in cultural interpretation’ and reexamining canonical works to highlight ‘neglected evidence of past ecological and proto-ecological sensibility’.[11] In other words, more diverse conceptions of environmental aesthetics can help address lacunae or biases, and respect art historian Simon Schama’s advice to recognise that landscapes have a socialised, layered history.[12]

Strengthening community involvement in environmental art might attenuate some of the foregoing challenges. Here the emphasis shifts from the artistic representation of the natural world as an object of admiration to community engagement and dialogue with that world. This approach not only dovetails with the theory of ‘interested engagement’ in the aesthetics literature,[13] but also environmental law’s commitment to public participation.[14] Ecological restoration projects provide an interesting setting for these goals, as currently practised by Greening Australia in its Tasmania Island Ark initiative. Greening Australia has collaborated with the University of Tasmania’s College of the Arts to involve artists with regional schools and local townships in designing sculptures for placement in the landscape not only to support the community’s interpretation of the restored biodiversity but also to directly aid the biodiversity’s recovery by designing artworks that serve as ‘species hotels’ for birds, bats and other creatures.[15] Another approach, used in the United States, was undertaken by the US Nature Conservancy in its restoration of a wetland in Illinois; it recruited citizens to be artists themselves — to draw, paint, photograph, or otherwise depict the restoration endeavour and its results.[16]

Beauty is indispensable for our relationships with the natural environment and the laws we design to conserve it, helping people to move beyond a cold, instrumental relationship to one provoking affinity, curiosity, adoration and other intimacies. Artistic depictions of landscapes can influence their legal status, as Alice Palmer has investigated in her excellent analysis of the impact of aesthetics in World Heritage property listings including those in my own homeland of Tasmania where Peter Dombrovskis’ photographs of its southwest wilderness were used by the Australian government as evidence to support its nomination of this area for World Heritage status.[17] Given the ineffectiveness of much environmental regulation and considerable insouciance by some about the Anthropocene, we need to re-think how to engage everyone in caring for the Earth and the legal means to leverage that engagement.

 

[1] R. Kelsey, ‘Reverse shot: Earthrise and Blue Marble in the American imagination’ in E.H. Jazairy (ed), Scales of the Earth (Harvard University Press, 2011), 10.

[2] S. Bedder, ‘Public participation or public relations?’ in B. Martin (ed), Technology and Public Participation (University of Wollongong, 1999), 169.

[3] R. Kaplan, ‘The nature of the view from home’ Environment and Behavior 33(4) (2001): 507; K. Williams and D, Harvey, ‘Transcendent experience in forest environments’ Journal of Environmental Psychology (2001) 21: 249.

[4] A. Leopold, A Sand County Almanac (Oxford University Press, 1949), xxvi.

[5] T. Low, The New Nature (Penguin, 2017).

[6] D. Dutton, The Art Instinct. Beauty, Pleasure, and Human Evolution (Bloomsbury Publishing, 2010), passim; J. Appleton, The Experience of Landscape (Wiley, 1975), 73-74.

[7] R. Taylor, ‘Fractal patterns in nature and art are aesthetically pleasing and stress-reducing’, The Conversation, 31 March 2017.

[8] T. Bonyhady,  ‘No dams: the art of Olegas Truchanas and Peter Dombrovskis’, in R. Butler (ed), The Europeans: E´migre´ Artists in Australia 1930 – 1960 (National Gallery of Australia, 1990): 236.

[9] ‘Artists return from threatened Tarkine wilderness – major exhibition installed in Hobart’, Media release, Bob Brown Foundation, 2017.

[10] J. Deeth, ‘The Skullbone experiment: a paradigm of art and nature’, Artlink, June 2014; H. Aird, ‘Poets and painters: new exhibition produces “extraordinary synergies”’, ABC News 28 July 2017.

[11] A.C. Braddock, ‘Ecocritical art history’ American Art (2009) 23(2): 24, 26.

[12] S. Schama, Landscape and Memory (Fontana Press, 1995).

[13] A. Berleant, Living in the Landscape: Toward an Aesthetics of Environment (University Press of Kansas, 1997).

[14] B.J. Richardson and J. Razzaque, ‘Public participation in environmental decision-making’ in B.J. Richardson and S. Wood (eds), Environmental Law for Sustainability (Hart Publishing: 2006)): 165.

[15] Greening Australia, ‘Building hotels for Tasmania’s unique species’.

[16] S.K. Allison, Ecological Restoration and Environmental Change: Renewing Damaged Ecosystems (Routledge, 2012), 188.

[17] A. Palmer, ‘Legal dimensions to valuing aesthetics in World Heritage decisions’ Social and Legal Studies (2017): 1 at 8, DOI: 10.1177/0964663917698859.

 

 

 

 

21/08/2017

The Importance of International Wildlife Law and the Value of Multidisciplinary Collaboration in this Field

By Arie Trouwborst (TLS)

In the battle to halt and reverse the global biodiversity crisis, a crucial role is reserved for international legal instruments. An open-access viewpoint article in BioScience, written by an international assemblage of wildlife lawyers, conservation biologists and social scientists, highlights the importance of international law in wildlife conservation. The article explores the various ways in which treaties can contribute to conservation, as well as their limitations; and calls for both increased, strategic recourse to international wildlife law as a conservation tool, and further cooperation between lawyers and other conservation professionals. As the 21 authors conclude:

“With their long-term, legally binding commitments on a transboundary scale, international legal instruments can be important, sometimes indispensable implements in the conservation toolbox. Having explored why international wildlife law matters and what can and cannot be expected of it, we are convinced that by joining forces, lawyers and other conservation professionals can improve the contribution of international wildlife law to biodiversity conservation. There is much to be gained, partly by enhancing the legal framework itself but especially by seizing the many opportunities offered for advancing the effective application of the law as it stands. We hope that this article can be a useful step along this path.”

Multidisciplinary cooperation is also a key focus of the 18th International Wildlife Law Conference, which will be held at Tilburg University in the Netherlands on 18-19 April 2018. This is reflected in the scheduled keynote addresses by international wildlife lawyer Michael Bowman (School of Law, University of Nottingham) and conservation biologist David Macdonald (Wildlife Conservation Research Unit, University of Oxford). The Tilburg Environmental Law Team strongly encourages law professionals/students with an interest in wildlife, as well as wildlife professionals/students with an interest in law, to consider participating in this event.

elephant

Arie Trouwborst, Andy Blackmore, Luigi Boitani, Michael Bowman, Richard Caddell, Guillaume Chapron, An Cliquet, Ed Couzens, Yaffa Epstein, Eladio Fernández-Galiano, Floor Fleurke, Roy Gardner, Luke Hunter, Kim Jacobsen, Miha Krofel, Melissa Lewis, José Vicente López-Bao, David Macdonald, Steve Redpath, Geoffrey Wandesforde-Smith & John Linnell, “International wildlife law: Understanding and enhancing its role in conservation“, BioScience 2017, doi:10.1093/biosci/bix086

13/06/2017

Enhancing Soil Carbon Sequestration and Adaptation in Europe’s Agricultural Sector: Towards a New Approach under CAP and ETS

By Jonathan Verschuuren (TLS)

Soils contain large quantities of carbon, mainly made up of decomposing plant materials and microbes. The Earth’s soils contain around 2500 Gt of carbon, four times more than vegetation.[1] Through soil degradation, much of natural soil carbon stocks has been lost. It has been estimated that the carbon sink capacity of the world’s agricultural and degraded soils is 50 to 60% of the historical carbon loss of 42 to 78 Gt of carbon.[2] With around 40% of the world’s surface being used for agriculture, it is suggested that these agricultural lands may be used as an important sink for atmospheric carbon.[3] Soil erosion control and soil restoration has an estimated carbon sequestration capacity of between 5 and 15% of global emissions.[4] After peaking, a new equilibrium will be reached and the sequestration potential goes down. It should also be noted that the carbon stored in soils can be easily emitted again with deep tillage and significant soil disturbance.[5]

(Photo: Flickr user Kai C. Schwarzer)

(Photo: Flickr user Kai C. Schwarzer)

Increasing soil carbon sequestration has a very interesting positive impact on climate change adaptation. Measures aimed at soil carbon sequestration increases the ability of soils to hold moisture and to better withstand wind and water erosion, enriches ecosystem biodiversity, helps cropping systems to better withstand droughts and floods, increases fertility for crops through restoring healthy soil microbial communities, and increases livestock efficiency (sustainable intensification).[6] Other potential positive side-effects of practices aimed at soil carbon sequestration are various environmental benefits, such as avoided use of chemical fertilizers and pesticides and improved biodiversity and wildlife.[7]

Examples of soil carbon sequestration practices relevant for Europe are the application of conventional or organic no-till and conservation tillage systems, the use of periodic green fallows, winter cover crops and crop rotations that utilize semi-perennial crops, rotational grazing, decreased grassland management intensity, perennial cropping, nutrient management consisting of compost (crop residue addition) and organic manure, and judicious use of irrigation water.

Research shows that strong top-down policies that are linked with, and fed by, bottom-up initiatives, are needed to achieve the required level of adaptation in the agricultural sector.[8] Holistic strategies have to be adopted that go beyond technical approaches aimed at stimulating autonomous farm-level risk reduction. So far, the EU did not focus much attention on agriculture in its climate change adaptation policy. The EU’s Adaptation Strategy refers to the Common Agricultural Policy (CAP) in which adaptation measures have been integrated to a limited extent.[9] An assessment of the soil carbon related adaptation potential of the current CAP, however, shows that this potential is limited. Soil carbon projects can receive funding both under the green direct payments, and under the rural development policy. Whether such projects are actually carried out with CAP funding depends entirely on initiatives by farmers (for green direct payments), or by Member States (for the rural development policy). Unfortunately, there are not many indications that Member States radically focus their Rural Development Programmes (RDP) on climate change, perhaps with the exception of Ireland. The CAP also has several inherent constraints as far as soil carbon sequestration and associated adaptation are concerned, mostly due to the fact that CAP is not linked to the EU climate policy but serves as a separate instrument with a much wider policy goal than combatting climate change. The accounting rules, for example, do not require farm level quantification of the amount of carbon sequestered linked to the payment, so it cannot be assessed whether and in how far an increase in soil carbon levels is real, additional and verifiable. Integrating the CAP more into the EU’s climate policy requires rules to be set in place to assure a reliable measuring of the carbon sequestered. Payments, to give another example, are based on the amount of hectares per year of measures under the RDP, not on the amount of CO2 sequestered. This is a consequence of the provision that payments can only cover additional costs and income forgone resulting from the commitments made.[10] Such indirect payments, therefore, do not stimulate farmers to sequester as much carbon as possible. A third example of the CAP’s shortcomings with regard to soil carbon sequestration is that projects financed under the CAP are characterized by a relatively short lifespan, 1-5 years for green direct payments, and 5-7 years for projects under a RDP. Under a climate policy, such a lifespan is almost futile, as combatting climate change requires measures that cover decades, if not the entire 21st century. That is why in Australia, carbon sequestration projects are required to run for twenty five or even a hundred years (see blog posts on Australia’s carbon farming legislation part 1 and part 2).

Towards an alternative approach: agriculture in the EU ETS

The conclusion that the current EU policy is completely inadequate to stimulate large scale soil carbon sequestration on agricultural land seems inevitable, also when taking into account the broader climate change mitigation policy. The recently presented proposal for a European Regulation on the inclusion of greenhouse gas emissions and removals from land use and forestry into the EU’s 2030 climate framework (LULUCF Regulation) is a good first, yet inadequate, step towards including agriculture’s emissions and sequestration potential into the EU’s climate policy (see for broader assessment of the climate policy instruments, the paper). That is why an alternative approach needs to be developed. A further stimulus to the adoption of soil carbon projects that currently is not being discussed but that needs to be investigated at European level soon is the inclusion of agriculture in the EU ETS through allowing regulated industries to buy offsets from the agricultural sector, following the examples set by California, Alberta, Australia, and more recently also China.[11] These states show that it is possible to stimulate soil carbon sequestration (and other climate smart agriculture practices and technologies) through the ETS, provided an elaborate regulatory regime has been put in place to ensure integrity. When in place, sectors covered by the ETS will be allowed to finance sequestration projects on farm land, thus paying farmers for their efforts.

The recent report of the Agricultural Markets Task Force, a European Commission expert group, also proposes to incentivise to farm carbon in addition to crops. The Task force, however, proposes to do this through redirecting funds under the CAP after 2020. It is debatable, though, whether this will be a successful strategy given the inherent shortcomings mentioned above. Some of the current constraints can perhaps be repaired, such as the short commitment period, or the provision that payments can only cover additional costs and income forgone. It is highly unlikely, though, that the CAP budget will be big enough to cover an EU wide adoption of carbon farming practices. An evaluation of the Australian carbon farming legislation indicated that government funds will never suffice to roll out an incentive mechanism across all farms in the country and that private funds need to come in, either through a carbon tax or an ETS.[12] The latter seems very suitable for the EU with its well-developed ETS that, hopefully, will pick up speed again after the structural reform takes effect in the fourth trading phase, which runs from 2021 until 2030. Regulation aimed at establishing a finance flow from large industrial emitters to the farming sector, with its capacity to sequester large quantities of carbon on farm land, seems a promising alternative, which is completely in line with the polluter pays principle as laid down in Article 191(2) of the Treaty on the Functioning of the EU.

 

[1] Daniel Kane, Carbon Sequestration Potential on Agricultural Lands: a Review of current Science and Available Practices (Breakthrough Strategies & Solutions, Takoma Park, Md 2015).

[2] Emanuele Lugato et al., ‘Potential carbon sequestration of European arable soils estimated by modelling a comprehensive set of management practices’, (2015) 20 Global Change Biology 3557.

[3] Pete Smith, ‘Agricultural Greenhouse Gas Mitigation Potential Globally, in Europe and in the UK: What Have We Learnt in the last 20 Years?’ (2012) 18 Global Change Biology 35.

[4] M.G. Rivera-Ferre et al., Re-framing the Climate Change Debate in the Livestock Sector: Mitigation and Adaptation Options, (2016) 7 WIREs Climate Change 869.

[5] Ibid.

[6] P. Smith et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in: O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 811, 846 and 847; J.R. Porter et al., ‘Food security and food production systems’ in: C.B. Field et al. (eds.), Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2015), 485, 515 and 518.

[7] Annette Freibauer et al., ‘Carbon Sequestration in the Agricultural Soils of Europe’ (2004) 122 Geoderma 1.

[8] L. Bizikova et al., Climate Change Adaptation Planning in Agriculture: Processes, Experiences and Lessons Learned from Early Adapters, (2014) 19 Mitigation and Adaptation Strategies for Global Change 411.

[9] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An EU Strategy on Adaptation to Climate Change, COM (2013) 0216 final, 8.

[10] Art. 28(6) Regulation (EU) No 1305/2013.

[11] Jonathan Verschuuren, Towards a Regulatory Design for Reducing Emissions from Agriculture: Lessons from Australia’s Carbon Farming Initiative, (2017) 7:1 Climate Law 1; Dong Sun et al., Carbon Markets in China: Development and Challenges, (2016) 52:6 Emerging Markets Finance and Trade 1361.

[12] Verschuuren 2017.

 

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 This blog is a summary of a paper accepted for presentation at the 3rd European Climate Change Adaptation Conference ‘Our Climate Ready Future’, Glasgow, 5th-9th June 2017 (ECCA2017). My project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

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