Environmental Law

30/06/2021

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

By Michael Leach

Introduction

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

ETS Comparisons

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

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

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

Comparing Europe and Canada

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

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

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

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

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

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

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

Conclusion

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

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

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

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

29/06/2021

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

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

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

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

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

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

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

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

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

18/05/2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Relationship to other policy instruments

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

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

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

Impact on food security

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

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

18/05/2021

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

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

Nairita Roy Chaudhuri *

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

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

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

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

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

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

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

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

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

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

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

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

Population, sustainability and climate change

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

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

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

Climate Politics: An example

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

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

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

Climate Justice

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

Transformation as the way forward

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

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

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

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

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

26/05/2020

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

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

By Mike Leach, post doc Tilburg Law School

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

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

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

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

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

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

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

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

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

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

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

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

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.

26/08/2019

Taxing and Managing Meat: An Integrated Approach to Tackle Climate Change

By Maria Alejandra Serra Barney, Nathalia Cortez Gomez, Lorena Perez Roa and Melanie Auvray (Alumni Tilburg Law School)

A few months ago, a team of four master students from Tilburg University participated in the Geneva Challenge 2018 on Climate Change. Our proposal aimed to tackle greenhouse gas emissions of the livestock industry, by creating a Global Tax Meat Scheme, that would allow countries from all over the world to have a profound transition to a cleaner industry while achieving a change on consumer’s behavior.

Climate Change is one of the biggest challenges of our generation. Action and cooperation from every country is needed, as well as from every sector and industry. While several actions to mitigate Climate Change have been developed in the most acknowledged pollutant industries, such as transportation, mining, or product manufacturing, the severe environmental impacts of the livestock industry have managed to remain in the shadows. Livestock industry alone is responsible for 14.5% of the annual worldwide Greenhouse Gas (GHG) emissions of Carbon Dioxide (CO₂), Methane (CH₄) and Nitrogen Dioxide (N₂O), exceeding the emissions produced by the entire global transportation sector^[1]. Nevertheless, a survey developed by Chatham House along with the Glasgow University in 2014^[2], revealed that livestock sector is not recognized by people as a contributor to climate change^[3]. As a matter of fact, one-quarter of people considered that ‘meat and dairy production contributes either little or nothing to climate change’^[4].

Accordingly, and contrary to popular belief, the livestock industry is responsible for a large amount of the global Greenhouse Gas (GHG) emissions, which are generated through animal physiology (enteric fermentation, respiration and excretions), animal housing, feed crops, manure handling, processing of livestock products and bi-products, transportation and land use for livestock production (deforestation, desertification)^[5]. This should not come as a surprise, considering its strong place in the economies of both developed and developing countries, as the main supplier of global calories, proteins, and essential micronutrients^[6]. Likewise, livestock production is a good alternative in some developing countries that have difficulty growing crops and need to ensure the nutrition of their population^[7], however relying almost exclusively in livestock products entails risks for human health and food security itself. The consumption of meat in developed countries is five times higher than in the developing countries^[8], which increases the risk of colorectal cancer, pancreatic cancer and prostate cancer^[9]. According to the World Health Organization (WHO), red meat (beef, veal, pork, lamb, mutton, horse and goat) has been classified as Group 2A: “probably carcinogenic to humans”; and processed meat (‘hot dogs’, ham, sausages, corned beef, beef jerky, canned meat and meat-based preparations and sauces) as Group 1: “carcinogenic to humans”^[10], just as tobacco smoking and asbestos. This is why the WHO stresses the importance of the reduction on consumption of processed meat^[11], which makes the leading role that meat products have in food security nowadays questionable.

In addition, the increase in the global temperature will have a direct impact on the health and life of livestock animals^[12]. According to experts, the rise in the temperature will enable the acceleration in the growth of pathogens and parasites^[13], which might generate shifts in disease spreading, outbreaks of severe diseases or even introduce new ones^[14], increasing the risk of morbidity and death of livestock. Therefore, relying on livestock products to guarantee the food security in the world might lead to a food crisis in the future.

For environmental, health and food security reasons, livestock production should be limited and regulated. However, when it comes to international environmental treaties and agreements, even though there is a commitment and a mandate for countries to reduce GHG emissions, livestock industry is not really targeted, even though the projections indicate that animal product consumption will continue to increase^[15]. Indeed, UNFCCC and Kyoto Protocol only formulate a fragmented set of rules’^[16] and the Paris Agreement gives general recommendations that prioritize food security rather than targeting livestock industry. Regarding the health and food security issues related to the livestock industry, some countries are already using taxation to encourage healthy eating habits on its population, for instance by raising the prices of sugary soft drinks or sweets. Nevertheless, this approach has never been used on livestock products that, as it was explained before, are known to cause several health issues when consumed in excess.

In this sense, a study on the results on taxing beef, pork and chicken^[17] in Denmark, succeeded to prove that a possible tax on meat would reduce GHG emissions between 10.4% and 19.4% for an average household^[18]. However, we believe that these figures are not enough. Our proposal for the Geneva Challenge 2018 consisted in the establishment of a Global Meat Tax Scheme, which would consider the application of taxes in developed countries and levied on the consumers in order to directly induce changes in meat consumption. It should be collected by national authorities which must ensure that tax revenues are given back to specific actors so they can invest in the development of eco-efficient technologies to support technological improvements of the livestock industry management, or to invest in high protein food alternatives^[19]. Likewise, governments shall cooperate with international organizations in order to promote and support the transition into cleaner technology and farming processes in developing countries .

To make sure that tax revenue funds are safe and utilized solely for the intended purposes, we suggest the utilization of blockchain technology, which would enhance the security of the scheme, guaranteeing the transparency of all transactions being made, and as a consequence promoting trust among governmental entities and individuals. Likewise, States would be under the monitoring and supervision of an international authority, which would assess the compliance of the States and the adequate utilization of the funds.

We invite you to read our full project report for further explanations on this “Global Meat Tax Scheme” and its complementary adaptation and mitigation measures which would allow countries from all over the world to have a profound transition of the industry to cleaner livestock management while achieving a change on consumer’s behavior.

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.

09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

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

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

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

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

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

Uncertainty and precautionary principle

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

Causal link

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

Relationship to EU policies

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

Relationship to adaptation measures

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

Interdependence policies other countries

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

2020:  too short notice

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

Role of future generations

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

We will engineer ourselves out of the problems 

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

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

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

24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

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

(Photo: Flickr user Shell)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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