Environmental Law

29/11/2022

Carbon Offsetting and the 2022 FIFA World Cup in Qatar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

16/06/2022

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

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

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

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

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

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

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

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

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

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

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

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

20/05/2020

Citizen Sensing: towards a right to contribute to environmental information

Dr. Anna Berti Suman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   Images and poster’s credit: Alice Toietta

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

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

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

Image credit: Alice Bosma

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

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

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

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

06/05/2020

Sensing Covid-19 and Climate Change

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

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

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

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

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

Sensing the Unknown

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

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

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

Citizen Sensing: From Sensing Radiations to Covid-19

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

(image credit: Safecast and Ushahidi (CC))

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

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

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

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

Concluding thoughts

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

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

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

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

02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).^[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.^[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.^[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:^[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).^[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.^[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.^[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).^[8]

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.^[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.^[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.

11/12/2018

Impact of Single Issue Funding on Sustainable Development CSOs

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. In our first blog post, we looked at restricted civic space and the impact thereof on local CSOs.[1] In this blog post, we discuss some initial findings on the impact of single issue funding. 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.

Mekele (Photo: D. Townsend)

Over the course of the past six months, we have conducted a series of interviews with CSOs working in Ethiopia to better understand how these organisations adapt under a regulatory regime that radically constrains their funding and activities. While regulatory constraints affect the sustainability of these organisations, a recurring theme in our interviews concerns the considerable impact of ‘single-issue funding’. Single-issue funding includes grants and funding programmes that address problems and concerns in an atomistic and isolated manner.

Single-issue funding is particularly problematic for organisations working on complex environmental problems like sustainable development, climate change and food security. Both foreign and local CSOs reported that they have been forced to either shut down or shift their programme focus due to new funder priorities. The organisations we interviewed told us that funding opportunities over the past year or two have been concentrated in the area of migration and displacement. Work on food security and other resilience programmes do not meet the funding requirements for many of these grants.

One organisation described receiving funding from a Dutch Funder to address crisis relief in Ethiopia. With this funding, the organisation established a number of local initiatives focused on food security at a local, community level. In 2017, the Dutch funder changed the focus of that funding to address migration, and the organisation no longer qualified for funding. This resulted in a loss of years of built up expertise and good community relations. This is particularly problematic in the Ethiopian context where CSOs had been portrayed as self-serving and unreliable. It also affects the stability and resilience of the communities who had previously benefited from the work of the CSO. Productive and beneficial programmes are forced to either stop or shift their focus, as funding priorities follow the shifting political winds.

This example is particularly worrying from an environmental point of view as addressing concerns such as food security, sustainable development and climate change – which also may not fall under migration funding – generally require long term engagement and are rarely short term. In addition, an atomistic approach is in direct conflict with funders’ own aims and goals, as addressing environmental threats and ensuring food security are crucial components of addressing unsustainable levels of migration.

A shift in donor focus can also have a significant, and often overlooked, impact on the institutional set-up and human resource situation of a CSO. One organisation told us that, despite their extensive expertise in environmental issues, they no longer qualified for many grants. Donor priorities had shifted to migration and the organisation could not easily transfer the expertise they had to a new and different focus area. Another organisation described how changes in donor focus had had a serious impact on their financial stability, making it harder for the organisation to retain capable and qualified staff.

Our initial findings suggest that, while state regulation in places like Ethiopia may have a significant impact on CSOs, shifting funding priorities might also jeopardize their sustainability and undermine their efforts.

07/11/2018

Bilateral treaties and corporate impunity: the recent developments of the Chevron Ecuador case before the Permanent Court of Arbitration

By Anna Berti Suman (TLS)

In December 2016, we published a blog post on the Chevron’s Ecuador ‘saga’, presenting the case as an example of the failure of the global environmental justice system. We presented five different scenarios of the battle for justice that since 1993 the Ecuadorean indigenous plaintiffs fight against the Chevron oil giant. Among these fronts, we here zoom in on the scenario that sees Chevron Corporation and its subsidiary Texaco Petroleum Co. against the Republic of Ecuador, the so-called ‘Chevron III’ case [1]. The case was initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty (BIT) before the Permanent Court of Arbitration in The Hague [2]. Chevron requested the arbitral panel to declare the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) as the exclusively liable entity for any judgment issued in the Ecuadorean litigation, Chevron vs. Aguinda. Specifically, the arbitral panel was asked to invalidate the $ 9.5 billion dollars judgement rendered against Chevron in Ecuador in 2011 that found the company guilty for its oil dumping in the Ecuador’s Amazon region where Texaco (later acquired by Chevron) operated between 1964 and 1992. The judgement, issued in 2011 by the Ecuadorean Supreme Court, was recently confirmed by the Ecuadorean Constitutional Court [3]. Chevron’s argument is based on two grounds: first, the company lamented the violation of the U.S.-Ecuador BIT inasmuch as the State of Ecuador did not grant a fair trial to the company in the Ecuadorean judgment. In addition, Chevron defended that it was released from any liability by the Republic of Ecuador by signing an agreement with the State in 1998 absolving the company of any future responsibility for its past operations in Ecuador.

On August 30, 2018, the Permanent Court of Arbitration released an award in favour of Chevron, finding that the Republic of Ecuador violated its obligations to protect U.S. companies under the U.S.-Ecuador BIT and international law. The arbitral panel said that the 2011 Ecuador Supreme Court’s ruling had been obtained through fraud, bribery and corruption, thus violating Chevron’s right to a fair trial in Ecuador. The tribunal consequently held that the company is not obliged to comply with the $9.5 billion judgment [4]. In occasion of the Arbitration Court’s decision, Pablo Fajardo, lawyer of the Union of Affected People by ChevronTexaco (UDAPT) representing the 30.000 victims of the Chevron’s oil contamination, and Justino Piaguaje, President of the Secoya Indigenous people, visited Tilburg University. In a seminar organized by Professor Jonathan Verschuuren and Anna Berti Suman at Tilburg Law School on October 26, the guests discussed the Chevron-Ecuador case in light of the recent judgement, reflecting on the applicability of the award against the Ecuadorian plaintiffs and on the broader questions that such an award raises. Letty Fajardo Vera and Suzanne Hagemann, spokespersons of the UDAPT respectively in the Netherlands and in Switzerland, and Charlie Holt, legal counsel for Greenpeace International in Amsterdam, joined the seminar as discussants.

Mr. Piaguaje introduced the participants to the reality of life ‘on the side’ of the oil contamination left by Chevron and what this means not only for human health but also for the preservation of the unique indigenous culture and lifestyle. Mr. Fajardo continued the discussion with a focus on the legal questionability of the award. From a strictly legal point of view, Fajardo stressed that the allegedly violated U.S.-Ecuador BIT was signed on August 27, 1993, and entered into force on May 11, 1997, which is five years after the termination of Texaco’s operations in Ecuador. However, the arbitral panel applied the BIT retroactively to facts occurred prior to its entry into force. Secondly, it is pretentious that an arbitral panel can affect the Ecuadorean Aguinda ruling, because it cannot have any jurisdiction over the Aguinda plaintiffs that did not even appear in the arbitral trial. In addition, the alleged release from responsibility granted to the company by the Ecuadorean government when the company terminated its operations in Ecuador only regards government’s claims and not private parties’ claims like those of the Aguinda plaintiffs, as also stated in the 2011 Ecuadorean judgment [5].

The recent development of the case inspired a discussion on a number of aspects. First, the stand of the Permanent Court of Arbitration vis-à-vis victims of environmental crimes has been questioned.  As Fajardo stressed, it is inadmissible for an arbitral panel to order a State to invalidate a judgment issued in a judicial process between private individuals and ratified by all national judicial instances. The award puts the commercial interests of companies before the human rights of the affected communities. The risk that bilateral treaties may act as a shield protecting transnationals from accountability for human rights violations emerged. In addition, the ruling clearly undermines the sovereignty of the Ecuadorean State and its judicial independence. By asking Ecuador to invalidate the 2011 judgment, the arbitral tribunal is compelling the State to violate its constitutional norm, to disrespect the independence of functions, and to jeopardize the human rights of the Ecuadorian citizens. Overall, the dangerous precedent that this arbitral decision may set was manifested. As a matter of fact, the case risks to become a precedent for releasing from responsibility companies that, with the complicity of states, commit environmental crimes against human beings. The award represents a failure or lack of environmental justice in a system that appears rather dominated by corporate impunity.

Photo credits: seminar photos by Letty Fajardo Vera & UDAPT (bottom photo showing Pablo Fajardo, Charlie Holt, and Justino Piaguaje); Cuyabeno rainforest photo by Jonathan Verschuuren

[1] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[2] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[3] Case No. 174-2012, verbal proceeding No. 174-2012, Maria Aguinda Salazar y otros v. Chevron Corporation, Quito, November 12, 2013.

[4] For more information on the case see A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure.

[5] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.

10/11/2016

WTO limitations for domestic climate smart agriculture policies

Achieving the Paris Agreement’s climate goals will require states to start focusing both on reducing emissions from agriculture and on the sequestration potential of agriculture and land use.  The imminent rise in global food demand coupled with the decline in fertile agricultural land caused by climate change will further necessitate the drafting and implementation of effective policies. These policies have to aim for mitigation, adaptation and food security, the three pillars of ‘climate smart agriculture’. Climate smart agriculture is an approach to developing the technical, policy and investment conditions to achieve sustainable agricultural development for food security under climate change (FAO 2013).  Examples of climate smart practices are the introduction of rotational grazing management schemes, crop rotation, minimum tilling, permanent native vegetation on farmland and the use of compost and other soil additives to increase soil carbon levels.  Examples of climate smart technologies are sophisticated, computerized drip-irrigation systems, and methane capture and conversion technologies in animal raising facilities.  A comprehensive regulatory framework to incentivize the agricultural sector to convert from conventional practices to become climate smart is still largely lacking, not just in the EU, but worldwide. Incentives that already are applied on a small scale are subsidies and tradable offsets under a carbon pricing mechanism. It is expected that future policies aimed at advancing the implementation of climate smart practices and technologies in the farming sector will use one of these or both instruments.

Both are voluntary instruments in the sense that farmers can choose not to apply for a subsidy or participate in an offset scheme, yet both do have an impact on trade because these instruments incentivize certain agricultural practices thus favouring some domestic farmers and their products over foreign farmers and their (imported or exported) products. When drafting a policy aimed at stimulating climate smart agriculture, it is, therefore, important to remain within the legal boundaries set by international trade law. There has been remarkable little attention for these trade law limitations to domestic policies in the area of climate smart agriculture. In Australia, for example, there does not seem to have been any debate on possible WTO requirements for the domestic Australian carbon farming initiative, which is a scheme aimed at stimulating farmers to reduce emissions or increase sequestration through offsets that are bought up by the government in reversed auctions. Academic literature does exist, but mostly focuses on the WTO boundaries for domestic climate law in a broad sense. That literature is rather worrying. Because it takes a broad perspective and deals with all potential instruments that may infringe upon a wide range of WTO instruments, it looks as if the WTO is a huge stumbling block for domestic policies.^[1]

In my view, it is more worthwhile to focus on the two most likely instruments. As stated above, policies aimed at stimulating climate smart agriculture are likely to be some sort of government subsidy of a system of offsets from agriculture that are allowed in the carbon market. These instruments primarily have to be assessed against the requirements of two WTO instruments: the Agreement on Agriculture (AoA) and the Agreement on Subsidies and Countervailing Measures (SCM).

Domestic policies aimed at stimulating the adoption of climate smart agricultural practices and technologies are environmental protection programmes that, in principle, are allowed under the so-called ‘Green Box’ of the AoA, provided the support is only given in the start-up phase and is terminated after the benefits from the conversion to climate smart practices, be it from improved productivity, the generation of energy or from the sale of carbon credits on the private carbon market, greatly surpass the costs involved. Incentives that have a positive impact on production, such as for soil carbon projects, and that are not allowed under the AoA’s Green Box, are actionable under the SCM Agreement. It is hard to say in general whether payments to farmers, be it through a subsidy or through the carbon market, are not actionable because they do not cause adverse effects on competing producers in other countries. This very much depends on the individual case.

Several carbon farming methodologies definitely have production-enhancing co-benefits and would, therefore be actionable under the SCM Agreement. Soil sequestration projects, for example, are known to have a tremendous positive impact on the production of crops. Financing such projects could, therefore, be seen as granting an actionable subsidy, as long as they are not covered by the AoA. This means that it is up to the injured WTO member state to prove these subsidies caused serious prejudice to its interests, i.e., that because of the subsidy, it suffers from displaced imports into the market of the subsidizing country, displaced exports to third countries, significant price suppression, or an increase in the world market share by the subsidizing country.  Should a country succeed and subsequent consultations not lead to an agreement, the injured state can take countermeasures.

The accused state could argue that the subsidies are non-actionable because these are meant to promote adaptation of existing facilities to new environmental requirements imposed by law and/or regulations, as allowed under the SCM Agreement.  It is, however, unlikely that all of the six conditions for this exception clause to apply are met as current schemes are voluntary, the subsidies are not one-time but re-occur every time new abatement has been achieved, and the payments are not limited to 20 per cent of the cost of adaptation.  The condition that financial assistance should be directly linked to and proportionate to a firm’s pollution reduction,  is only met in case of emissions abatement projects, such as methane capture. Sequestration projects are not covered as these do not reduce the firm’s own emissions. Whether the condition that the financial assistance needs to be available to all firms which can adopt the new equipment and/or production processes is met, depends on the design of the regulatory scheme. The Australian scheme, for example, under which only farmers with winning bids in a reversed auction receive government funds, seems incompatible with the latter condition.

The other WTO instruments are only relevant to a very limited extend. The GATT and TBT Agreement, generally, are not applicable in the case of the two instruments that are most likely to be used to stimulate climate smart agriculture. The GATS requires a policy to enable foreign service providers to be active under a carbon pricing mechanism aimed at offsets from agriculture. The TRIP Agreement requires states to protect the invention of climate smart technologies to be protected under patent law. Should policies be aimed at a rapid adoption of patented climate smart technologies, then states can opt for excluding a climate smart technology from patentability based on grounds of avoiding serious prejudice to the environment.

To further facilitate the adoption and implementation of policies promoting climate smart agriculture, the international community should take action in the area of international trade law. Unfortunately, climate change is not addressed in a comprehensive manner in the ongoing negotiations on liberalizing environmental goods and services, on the relationship between the WTO and the UNFCCC and the Paris Agreement, and on agriculture, nor in the regular meetings of the Committee on Trade and the Environment and the TBT Committee.  It is clear that policies aimed at stimulating climate smart agriculture cannot be neatly assessed under one of the current WTO Agreements, but instead are situated in between and across the various agreements, depending on the specific type of measure and the specific activity that is incentivized. It seems that it is difficult to give due consideration to climate smart agriculture in all of the ongoing negotiations and discussions within the WTO framework, although several realistic options to at least create more room do exist. The most realistic and feasible options in my view are including climate smart agriculture technologies in the yet to be concluded WTO Agreement on Environmental Goods and Services and to recognize carbon sequestration as an agricultural product under the AoA so that it becomes possible to support farmers’ sequestration measures under the Green Box.

[1] For example, David Blandford and Tim Josling, Greenhouse Gas Reduction Policies and Agriculture: Implications for Production Incentives and International Trade Disciplines (Geneva: International Centre for Trade and Sustainable Development, 2009); David Blandford, “Climate Change Policies for Agriculture and WTO Agreements”, in Joseph A. McMahon, Melaku Geboye Desta (eds.), Research Handbook on the WTO Agriculture Agreement. New and Emerging Issues on International Agricultural Trade Law (Cheltenham: Edward Elgar, 2012), pp. 223 et sqq.; David Blandford, International Trade Disciplines and Policy Measures to Address Climate Change Mitigation and Adaptation in Agriculture, E15 Expert Group on Agriculture, Trade and Food Security Challenges Think Piece (Geneva: ICTSD/WEF, 2013); Andrew Green, “Climate Change, Regulatory Policy and the WTO. How Constraining are Trade rules?”, 8:1 Journal of International Economic Law (2005), pp. 143 et sqq.; Christian Hberli, WTO Rules Can Prevent Climate Change Mitigation for Agriculture, Working Paper No. 2016/06 (London: Society of International Economic Law, 2016); Deok-Young Park (ed.), Legal Issues on Climate Change and International Trade Law (Cham: Springer International, 2016); Richard G. Tarasofsky, “Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change”, 2:1 Carbon and Climate Law Review (2008), pp. 7 et sqq.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

25/07/2016

Reducing Emissions from Agriculture: Australia’s Unique Approach (Part 2)

In my previous blog, I showed how various countries around the world are in the process of setting up offset schemes for agriculture, in an attempt to reduce greenhouse gas emissions from this sector. I also explained that Australia has a unique position as it has the longest operating system in place, and one that currently is not linked to emissions trading but is a stand-alone system. Technically, therefore, Australia’s Carbon Farming Initiative, is not an offset instrument, but a regulatory instrument aimed at achieving emissions reductions in the land use sector on its own. In this blog, I will focus on some of the results that have been achieved with the system so far, based on an empirical research that I carried out.^[1] In case studies into selected CFI-projects and in a series of interviews with the key stakeholders, I searched for the experiences with the scheme in Australia, with the objective to draw lessons for other countries, including the EU as a whole, that wish to establish a policy aimed at reducing emissions from agriculture.

Sunset over rural Australia (Photo: J. Verschuuren)

My research found that the current legislation on carbon farming in Australia provides an elaborate, yet reliable legal framework that seems well suited to assess project applications and issue credits to participating farmers who, through these projects, generated real and additional emission reductions. It was especially interesting to find that a major overhaul of the legislation in 2015, delinking the scheme from emissions trading, really pushed the scheme forward. Not having to sell credits on the volatile international carbon market, but being able to rely on long term, fixed government money (called ‘Emissions Reduction Fund’), spurred Australia’s farmers into action. It shows that it is important to create long term certainty for farmers. Farmers who want to introduce carbon farming have to implement structural changes to their farming practices with long term impacts on their business. The policy environment, as well as the agribusiness’ financial environment, has to accommodate such long term impacts. This also implies that relying on the carbon market for funding should only be done when there is long term certainty that carbon credits will earn an acceptable minimum price.

Another interesting finding is that, although Australia’s carbon farming policy and the associated regulatory framework is only aimed at achieving as much greenhouse gas abatement as possible against the lowest possible costs, many project actually have important co-benefits. These co-benefits often are an as important and sometimes even more important stimulus for farmers to convert to carbon farming than the direct financial benefits arising from selling generated carbon credits to the government. Generally, it is found that the policy is leading to the introduction of better farming methods in an overall conservative sector. These methods are not just good for combatting climate change, but have many benefits for farmers and even for food security. Vegetation projects generally reduce salination and erosion and improve water retention. Soil carbon projects were especially mentioned for having an astonishing impact on soil quality. Research indicates that an increase in the level of soil organic carbon, leads to a drastic increase of water availability and fertility, and thus to an increase in agricultural production. One respondent referred to an example he knew, of two brothers who had farmland adjacent to each other: ‘One of them was involved in a soil carbon project, the other was not. After a while, you could clearly see the difference, with much more and better growing crops on the land of the first. The other brother had to drive across his brother’s land to reach his own land and saw the difference every day.’ Although many respondents stressed that conservatism, especially among older farmers, slows down the adoption of these new climate smart practices, they all felt that the farming sector is slowly changing and is taking up these new practices. Assessing the impact of soil carbon projects, however, is complex and several stakeholders indicated that ‘we are still learning how to do it under different circumstances.’ Since the regulatory framework requires farmers to carefully monitor what is happening in the soil, a lot of new knowledge is generated. One respondent said: ‘We are in fact doing large scale experiments with soil carbon, all thanks to the Emissions Reduction Fund.’ There are many interesting case studies available remarkable results of reduced carbon emissions, better growing conditions, more water availability, and more biodiversity under such programmes as ‘soils for life’ and ‘healthy soils’.

Increasing soil carbon, therefore, has strong positive side-effects on adaptation as they increase the resilience of the land and lead to greater efficiency. Here, mitigation and adaptation go hand in hand. The same is true for some of the other sequestration methods that are allowed under the Australian scheme, such as native tree planting in arid and semi-arid areas both to store carbon and to stop degradation and salinization of farmland.

Sometimes, there are also direct economic co-benefits associated to carbon farming projects. In the piggeries sector, for example, there are producers who save A$ 15,000 (roughly € 10,000) per month on energy bills and earn an additional A$ 15,000 by delivering energy to the grid after having adopted methane capture and biogas production technology. When asked whether the CFI/ERF was the push factor, or the expected economic co-benefit, the respondent from the pork sector said that the CFI/ERF was the main driver for the distribution of this technology: ‘About half of the participating producers jumped because of the CFI/ERF push. It especially pushes medium sized producers, because it increases their payback just enough to get involved. Eighteen biogas projects in piggeries have to date generated A$ 6 million (€3.9m) a year in electricity savings and A$ 10.2 million (€ 6.6m) through carbon credits under the Emissions Reduction Fund. The Fund really was the driver for most of these eighteen producers.’ It is clear, though, that for the longer term, these co-benefits will continue to exist on a yearly basis, also without carbon credits being purchased by the government.

Grazing land regeneration project in western New South Wales (Photo: http://www.soilsforlife.org.au)

From these findings, the lesson can be drawn that a policy that has a wider focus on adaptation, food security, resilient and sustainable farm businesses and securing and creating jobs in the agribusiness sector, is likely to be more successful than one that only focuses on reducing emissions from agriculture. Several of the methods accepted or under development in Australia, such as those dealing with soil carbon, show that such co-benefits can indeed be achieved. Developing climate smart methodologies that not only deliver real, additional, measurable and verifiable emission reductions but also foster long term innovation and create economic, social and environmental co-benefits is essential for the success of any policy aimed at stimulating climate smart agriculture. Science has to be central in the development and adoption of methods that are accepted under the regulatory framework. In Australia, much research effort has already gone into method development. This now has to be taken to a global level. In order to avoid that every country is trying to invent the wheel, international collaboration in method development is pivotal. The aim has to be to roll out climate smart agriculture policies across the world, so as to stimulate our farmers to make a switch from conventional farming to climate smart farming.

[1] An article covering all the results of the project will be published in early 2017.

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This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No 655565.

01/12/2015

Outcomes of the Meeting of the Parties to the Agreement on the Conservation of African-Eurasian Migratory Waterbirds

A Grey Crowned Crane – one of the species for which an International Single Species Action Plan was adopted at AEWA MoP6. (Photo: M. Lewis)

During their annual movements, migratory birds traverse multiple jurisdictions, the conservation laws and policies of which may differ considerably. It is thus unsurprising that, over the past century, a myriad of international instruments have been adopted to facilitate international cooperation in bird conservation. However, a shortfall of many of these instruments is that they have either failed to encompass bird populations’ entire migration routes (‘flyways’) or failed to require that Parties take a flyway approach in implementing their provisions. The first treaty to be explicitly dedicated to flyway conservation was the 1995 Agreement on the Conservation of African-Eurasian Migratory Waterbirds[i] (AEWA) – an ancilliary Agreement to the Convention on Migratory Species of Wild Animals[ii] (CMS), which attempts to maintain or restore the favourable conservation status of 254 species of migratory waterbirds. Not only is AEWA’s ‘Agreement Area’ designed to encompass entire migration systems, but the Agreement provides for a flyway approach in respect of both habitat conservation (requiring Parties to maintain networks of suitable habitats throughout species’ entire ranges^[iii]) and the conservation and management of waterbird populations themselves (requiring, for instance, that, in implementing the principle of sustainable use, Parties take populations’ full geographic ranges into account^[iv]). The Agreement’s other distinguising features include, inter alia, its detailed and legally rigorous provisions and its flexibility to evolve over time – these features being facilitated by AEWA’s use of a legally binding ‘Action Plan’, which applies at the population level (allowing for a very directed and nuanced collection of conservation commitments) and is easier to amend than the Agreement text itself.[v]

This November, the sixth session of the AEWA Meeting of the Parties (MoP6) met in Bonn, Germany. With 2015 marking the 20^th anniversary of AEWA’s adoption, the theme of the MoP (‘Making Flyway Conservation Happen’) reflected the Agreement’s leading role in promoting and facilitating flyway conservation, and participants both celebrated AEWA’s successes and considered the challenges facing its future implementation. Parties adopted a total of 22 resolutions, addressing a variety of scientific, technical, budgetary and administrative issues. A brief overview of these developments is provided below.

Amendments to AEWA’s Annexes

AEWA’s three annexes define the Agreement Area (Annex 1), list the species to which the Agreement applies (Annex 2), and contain the Agreement’s Action Plan and a Table of categorized populations to which the Action Plan applies (Annex 3). Although it has been suggested that the AEWA Agreement Area might ultimately be expanded to include the Central Asian Flyway,[vi] no proposal to amend Annex 1 was placed before MoP6. The MoP did, however, adopt a new standard reference for waterbird species taxonomy and nomenclature, making it necessary to amend Annex 2’s order of families and species, as well as various species’ scientific and vernacular names, so as to align these with the new standard reference. The Table in Annex 3 was similarly amended, and changes were made to the categorizations of several populations to reflect changes in their conservation status (and thus the protections to which they are entitled under the AEWA Action Plan). [vii] Unfortunately, the mismatch in timetables for AEWA listings and listings on the IUCN Red List of Threatened Species[viii] meant that the recent global Red Listing of several AEWA species is not reflected in the amended categorizations and will only be taken into account at MoP7.[ix] Several Parties have also indicated that they will need to enter reservations in respect of certain changes to AEWA’s categorizations – for instance, some of the species with populations that have been up-listed are currently huntable under the EU Birds Directive, with the result that the EU will need to enter reservations in respect thereof.

Guidance

Since its entry into force, AEWA has facilitated the development of a large body of guidance on the conservation and management of waterbirds and their habitats. Such guidance takes the form of either resolutions or, more detailed, ‘Conservation Guidelines’, both of which are adopted by the MoP and, while not directly binding, inform the interpretation of provisions of the Agreement text and Action Plan. Although MoP6 did not make any amendments to the AEWA Action Plan itself, the MoP did adopt guidance on implementing the Action Plan’s population approach in national legislation, as well as guidance on the meaning of the term ‘disturbance’ (and several terms related thereto) as used in various Action Plan provisions.[x] Resolutions were also adopted regarding waterbird monitoring, sustainable use, control of non-native waterbirds, climate change adaptation, threats in the marine environment, impacts of renewable energy deployment, and the avoidance of additional and unnecessary mortality (such as that resulting from collision with, or electrocution by, power generation infrastructure; poisoning; illegal killing; incidental killing; and pollution).[xi] Rather than competing with existing guidance documents, several of these resolutions encourage AEWA Parties to utilize guidance developed under other fora, such as the CMS, Ramsar Convention on Wetlands of International Importance,[xii] and various Regional Fisheries Management Organizations. MoP6 further adopted Conservation Guidelines on renewable energy technologies and migratory species (this guidance also having been adopted by the CMS Conference of the Parties[xiii]), and national legislation for AEWA’s implementation; as well as revised Guidelines on sustainable harvest,[xiv] which revisions represent a significant improvement insofar as they attempt to address all of the motivations for harvesting waterbirds within the AEWA region rather than only harvest for recreational purposes. Finally, the MoP adopted a new AEWA Communication Strategy to guide communication efforts in support of the Agreement’s implementation.[xv]

Guidance on the Agreement’s strategic priorities is currently found in the AEWA Strategic Plan[xvi] and Plan of Action for Africa.[xvii] While both of these documents were initially to expire in 2017, the MoP has extended their lifespans until its next session (which will take place in 2018[xviii]) and instructed that revised versions for the period 2019-2027 be presented to MoP7.[xix] Unfortunately, while some progress has been made towards meeting the various objectives identified by AEWA’s current Strategic Plan, Parties are still far from achieving the Plan’s central goal of maintaining migratory waterbird species and their populations at, or restoring them to, a favourable conservation status throughout their flyways.[xx] The Secretariat’s ability to assess progress towards meeting the Strategic Plan’s objectives has also been frustrated by the failure of many Parties to submit national reports on their AEWA-implementation efforts (as is required by Art. V(c) of the Agreement). MoP6 experienced a decline in the submission rate of national reports, with only 55 per cent of the reports due being received.[xxi]

International species action and management plans

A central feature of AEWA’s work is the development and implementation of International Single Species Action and Management Plans (ISSAPs and ISMPs). Although species action and management planning per se aren’t unique to the Agreement, AEWA and the CMS are uniquely positioned to develop plans at the flyway level and, in this way, add value to the planning processes of smaller instruments, such as the EU Birds Directive. AEWA’s plans also fill a significant gap in the frameworks provided by other legal instruments insofar as they have begun (starting with the ISMP for the Svalbard population of Pink-footed Goose, which was adopted at MoP5) to implement internationally coordinated harvest management – something which has not been attempted under any other instrument operating within the Agreement Area. MoP6 adopted five new ISSAPs (adding to the 19 that had previously been adopted under the Agreement) and one revised ISSAP.[xxii] Two of these address intra-African migrants (the Grey Crowned Crane and the Shoebill), helping to dilute the largely European focus of AEWA’s earlier plans; while a further two (those for the Taiga Bean Goose and Eurasian Curlew) envisage the development of adaptive harvest management processes, but differ from the ISMP for the Pink-footed Goose insofar as they address populations which need to be restored to a favourable conservation status. The MoP also adopted AEWA’s first International Multi-species Action Plan (for Benguela upwelling system coastal seabirds), as well as a decision-making process for the revision and retirement of ISSAPs.[xxiii] In addition to instructing the AEWA Secretariat to convene AEWA International Species Working Groups to coordinate the implementation of various species action plans,[xxiv] the MoP requested the Secretariat to ‘facilitate, subject to the availability of financial resources, the establishment of a European multispecies goose management platform and process to address sustainable use of goose populations and to provide for the resolution of human-goose conflicts’, targeting not only goose populations for which ISSAPs/ISMPs are already in place, but also populations of Barnacle and Greylag Geese (for which international management plans have not yet been developed).[xxv]

Resource constraints, prioritization of AEWA’s activities, and enhancing efficiency through synergies

As is the case for many contemporary environmental treaties, resource constraints present one of the most significant hurdles to AEWA’s effectiveness. Although the core budget that MoP6 adopted for the upcoming triennium (which provides for zero nominal growth from the MoP5 budget) allocates some funding for implementing AEWA’s ‘African Initiative’, the budget is dedicated primarily to the Agreement’s administration.[xxvi] As in previous triennia, implementation activities will therefore rely predominantly upon voluntary contributions and external support. In light of this challenge, it is noteworthy that MoP6 adopted a resolution on resource mobilization for AEWA’s implementation.[xxvii]

Given the resource constraints faced by AEWA, prioritization of activities is obviously desirable. This was, to some extent, recognized at MoP6, at which Parties agreed that future lists of International Implementation Tasks (which are adopted at each MoP to guide prospective donors in their allocation of funds) be ‘more limited in extent’, and adopted a shorter list than those adopted at previous MoPs.[xxviii] For the first time, the MoP also adopted a prioritized and costed work plan summarizing the scientific and technical tasks for the AEWA Technical Committee.[xxix] In the future – and especially when the AEWA Strategic Plan is undergoing revision during this triennium – there is arguably a strong need to identify both areas in which AEWA is able to work through other instruments and organizations and areas in which the Agreement is able to make a unique contribution and should be concentrating its efforts. While some of AEWA’s ‘niche’ areas are obvious (such as the promotion of the flyway approach, the development of flyway-level species action and management plans, and sustainable use), there are other areas in which the Agreement’s role and its relationship with other instruments need to be more clearly defined – an example being the conservation of seabirds.[xxx]

In recent years, the desire to improve AEWA’s efficiency and thereby allow resources to be diverted from the Agreement’s administration towards its implementation has also resulted in various suggestions for enhancing synergies between AEWA and the CMS. Although there is a long history of cooperative efforts between AEWA and its parent Convention, the desirability of establishing more formalized synergies has been a point of controversy. Following the establishment of a pilot joint communication and outreach unit in 2014,[xxxi] MoP6 decided to take a ‘stepwise approach’ (under the control of the AEWA and CMS Standing Committees) to strengthening synergies in common service areas, but has taken note that this is not aimed at a merger of Secretariats and confirmed that the appointment of a joint Executive Secretary is not a desired option.[xxxii] This, of course, is a separate issue from whether AEWA itself should be merged with other bird-related instruments in the CMS Family – a question which has yet to be considered by the AEWA MoP, but which might arise in the future in the context of the CMS Future Shape Process.[xxxiii]

This post was written on the basis of the author’s participation at AEWA MoP6, in the capacity of Environmental Law Expert on the Agreement’s Technical Committee. A detailed analysis of AEWA’s evolution, unique features, and challenges is provided in: Melissa Lewis ‘AEWA at Twenty: An Appraisal of the African-Eurasian Waterbird Agreement and its Unique Place in International Environmental Law’ 19:1 Journal of International Wildlife Law & Policy (2016) 22-61