Environmental Law

20/12/2015

The Paris climate agreement: Some hesitations from a legal perspective

by Jonathan Verschuuren and Jesse Reynolds

Reason to celebrate? (Photo via UNFCCC)

Bringing the entire international community to agreement on a legally binding international environmental instrument is an extraordinary achievement. The primary achievement is not so much its substance, but the simple fact that there is a new agreement that offers a way forward that is endorsed by representatives of all countries. The Paris climate agreement establishes the contours of a future ongoing process for cutting greenhouse gas (GHG) emissions. The next ten to twenty years will show whether this actually significantly reduces climate change. The drawback of such an agreement that is acceptable to every state is that it must be modest in its commitments. Indeed, many original elements had to be deleted or watered down considerably.

Can the agreement [PDF] achieve its goal, that of holding the increase in global average temperature to below 2 degrees Celsius, and ideally even to 1.5 degrees Celsius? The unfortunate truth is that doing so seems to be unattainable unless we allow overshooting [PDF].  That means that we would initially go beyond atmospheric GHG concentrations that would lead to 2 degrees, but then later lower them. This would require the rollout of “negative emission technologies” that could remove carbon dioxide—the leading GHG—from the atmosphere. Article 4 implicitly endorses this, stating that in the second half of the century a balance should be achieved between anthropogenic (i.e.human-caused) GHG emissions and “removals by sinks.” Article 5 (as well as the original UN Framework Convention on Climate Change [PDF]) call for “sinks and reservoirs” of GHGs to be enhanced as well, something which many negative emission technologies would strive to do. However, these techniques remain untested and potentially risky at such scales.

Furthermore, the agreement’s commitments with regard to GHG emission cuts (called “mitigation” in climate-speak) lack clear focus. States are to make voluntary pledges, called Nationally Determined Contributions (NDCs). This bottom-up approach is not entirely new, as these were the outcome of the 2009 Copenhagen climate summit. The pledges that have since been submitted are estimated to lead to a 2.7 to 3.7 degree temperature rise by the end of this century. Countries are to submit new, more ambitious commitments every five years. Although this seems tepid, it is arguably the best that could be expected from an agreement with global participation. For the most part, countries are simply unwilling to undertake costly major GHG emissions cuts while their economic competitors do not. At the same time, this system of stepwise “ratcheting up” might be able to provide decision makers with assurance that all other countries are also taking action.

The effectiveness of this instrument thus still needs to be proven. Several mechanisms are in place to at least monitor the implementation of the NDCs. In 2023, the first “global stocktaking” will be performed “to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals” (Art. 14). The outcome of this will merely “inform” countries in updating and enhancing their policies, “in a nationally determined manner” (Art. 14.3). The enforcement provision was diluted considerably as well. Article 15 now just states that there will be a committee of experts that will facilitate compliance, “in a manner that is (…) non-adversarial and non-punitive.” It is unfortunate that the expertise that was built up within the Kyoto Protocol’s Enforcement Branch will not be better utilized under the Paris Agreement. Without a proper enforcement mechanism it remains to be seen how effective the NDCs will be.

Without a collective emissions reduction target, and instead a rather vague (and unattainable) target, one might wonder how national authorities are to decide which targets they should each adopt. Mitigation policies are typically long-term ones that require a clear path for several decades, with associated planned measures and available funds. Fortunately, several countries have recognized this and have laws that do that. The United Kingdom is a prime example, with its 2008 Climate Change Act, which plans ahead until 2050, when an 80% emission cut is to be achieved (relative to 1990). The EU as a whole has set GHG emissions targets for 2020, 2030, and 2050 (20%, 40%, and 80% GHG emissions reduction, respectively, relative to 1990 levels). The Paris summit showed that the international community as a whole is not willing to adopting such commitments in a binding fashion.

Ultimately, the Paris Agreement does not bring much that is truly new. It mostly codifies what has been developed over the past years under the UN process. This is true not only for GHG emissions cuts, but also for other topics such as adaptation, finances, technology transfer, and loss & damage. The work that is already being done under the existing mechanisms, such as the Financial Mechanism, the Technology Mechanism, and the Warsaw International Mechanism for Loss and Damage, is reaffirmed  in a binding legal document, albeit in rather soft language that often utilizes the verb “should” instead of “shall.” However, the proposal to codify the emerging scheme on “Reducing Emissions from Deforestation and Forest Degradation” (REDD+) did not survive the Paris negotiations, nor did the proposal to set up a Climate Change Displacement Coordination Facility. Both of these topics are important and bound to return to the negotiating table in future years.

Although Paris means a step forward, the reality is that the international community is unwilling to do what is needed and justified in order to prevent dangerous climate change. To a large degree, this can be explained by the fact that climate change presents an extremely difficult—if not “wicked”—problem. Genuinely effective action would require that leaders take steps whose costs are borne in the short term by their constituents but whose benefits are shared by the whole world and experienced in the future. Such bold decision-making would likely come at a steep political price. In the meantime, voluntary but hopefully escalating commitments may be best that we—and future generations—can expect.

01/12/2015

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

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

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

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

Amendments to AEWA’s Annexes

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

Guidance

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

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

International species action and management plans

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

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

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

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

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

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

25/06/2015

Spectacular judgment by Dutch Court in climate change case

Court orders State to achieve reduction target of 25% in 2020

Palace of Justice, The Hague (photo by Flickr user Elvin)

In an unprecedented and unexpected decision, a Dutch court found that the Netherlands government has acted negligently and therefore unlawfully towards Urgenda by implementing a policy aimed at achieving a reduction for 2020 of less than 25% compared to the year 1990. The court had to overcome many obstacles to reach this decision, such as the obstacle of causation (from a global perspective, the Netherlands has a relatively small contribution to climate change, so how can the Dutch State by liable for climate change damage suffered by individual Dutch citizens?) and the obstacle of the principle of separation of powers, which does not allow courts to move into politics (setting mitigation targets is usually considered to be a policy matter, of which courts should remain clear). In other countries, particularly the United States, where many climate change suits have been decided or are ongoing, these two obstacles present the main reason why most climate change cases went nowhere, so far…

In its decision of June 24^th, 2015, which was rightfully translated in English as international interest in the judgment will be massive, the Court orders the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25% at the end of 2020 compared to the level of the year 1990. How did the Court reach this decision, and, more importantly, how did it overcome the two obstacles mentioned above?

The case was initiated by Urgenda, a foundation that was established in 2008 with the aim to stimulate and accelerate the transition processes to a more sustainable society, beginning in the Netherlands, by, among other things, legal action. More than 800 individual citizens joined the suit, so the case was lodged by Urgenda acting on its own behalf as well as in its capacity as representative of these individuals. Under Dutch tort law, NGOs are allowed to initiate public interest cases (see extensively Berthy van den Broek, Liesbeth Enneking, Public Interest Litigation in the Netherlands. A Multidimensional Take on the Promotion of Environmental Interests by Private Parties through the Courts, 2014 Utrecht Law Review 10:3). On standing, the Court not only finds that Urgenda is allowed to represent current generations, but also future generations, because the foundation is aimed at achieving a sustainable development (see judgment under 4.6-4.8). This makes this case a landmark case for the debate on intergenerational equity as well.

The question that the court had to address is whether the State acts unlawfully by “only” pursuing the reduction targets that were imposed upon the Netherlands by EU-law for 2020: a 21% reduction for sectors covered by the EU Emissions Trading Scheme (basically large industry and power stations), and a 16% reduction for non-EU ETS sectors (such as transport and agriculture). Under Dutch tort law, there are two ways in which unlawful action or inaction can be established: actions contrary to legal norms, or actions that are not contrary to written legal norms, but that are considered to be violating the standard of due care. First, the Court finds that the state did not breach its legal obligations under a range of legal instruments, such as the UNFCCC, Kyoto Protocol, various EU climate change instruments, the European Convention of Human Rights, etc.

Then, however, the Court tests whether the State fulfilled its duty of care towards its citizens. This is where the case becomes really interesting, because in order to establish what exactly, in this case, this duty of care entails, the Court relies on a large number of binding and non-binding rules and principles (such as the precautionary principle and the principle of ‘fairness’), policy statements, and even ‘scientific consensus’, to determine what can be expected of the State. The Court then finds: ‘Due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the court concludes that the State has a duty of care to take mitigation measures. The circumstance that the Dutch contribution to the present global greenhouse gas emissions is currently small does not affect this. (…) It is an established fact that with the current emission reduction policy (…) the State does not meet the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2°C target.’

How did the Court overcome the two obstacles mentioned above: causation and separation of powers?

On causation, the Court uses earlier case law on joint liability: the fact that one actor’s contribution to damage is minor, does not allow courts to reject liability. On the contrary, this actor can, under certain circumstances, be hold liable for the entire damage by those who suffer the damage. It is then up to the targeted tortfeasor to reclaim part of these costs from the other tortfeasors. After having referred to this jurisprudence, the Court states: ‘The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change.’ Interestingly, the Court follows the principle of common-but-differentiated responsibilities that is one of the main principles of the UNFCCC to argue that it is only fair that the Netherlands takes a proactive approach when it comes to mitigation: ‘Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionate contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.’ The Court then concludes:

From the above considerations (…) it follows that a sufficient causal link can be assumed to exist between the Dutch greenhouse gas emissions, global climate change and the effects (now and in the future) on the Dutch living climate. The fact that the current Dutch greenhouse gas emissions are limited on a global scale does not alter the fact that these emission contribute to climate change. The court has taken into consideration in this respect as well that the Dutch greenhouse emissions have contributed to climate change and by their nature will also continue to contribute to climate change.

The Court spends a good deal of considerations on the separation of powers. It apparently is very conscious of the fact that it is encroaching upon the realm of policy-making.  The government defended its policy by stating that it is working towards remaining within the 2 degrees limit. To achieve this, bigger emission cuts would be required in 2030. It was a policy decision, backed up by a majority in Parliament, to stall emission cuts a bit (also with a view to the economic crisis), and to speed up emission reductions later. According to the government, this is a legitimate political decision that should not be reviewed by courts.

The Court, however, takes a firm position in the separation of powers debate: ‘It is worthwhile noting that a judge, although not elected and therefore has no democratic legitimacy, has democratic legitimacy in another – but vital – respect. His authority and ensuing “power” are based on democratically established legislation, whether national or international, which has assigned him the task of settling legal disputes. This task also extends to cases in which citizens, individually or collectively, have turned against government authorities. The task of providing legal protection from government authorities, such as the State, pre-eminently belong to the domain of a judge. This task is also enshrined in legislation.’ According to the Court, this is exactly what the claim asks of them: provide legal protection against negligence on the part of the State. The Court acknowledges that by granting judicial review in this case, it will moving into the policy arena: ‘This does not mean that allowing one or more components of the claim can also have political consequences and in that respect can affect political decision-making. However, this is inherent in the role of the court with respect to government authorities in a state under the rule of law. The possibility – and in this case even certainty – that the issue is also and mainly the subject of political decision-making is no reason for curbing the judge in his task and authority to settle disputes. Whether or not there is a “political support base” for the outcome is not relevant in the court’s decision-making process.’

This is a firm statement indeed! The Court does acknowledge that there has to remain room for political decision-making, hence they only set the minimum reduction target of 25% reduction, without imposing the measures that need to be taken to achieve this target, nor preventing (future) decision-makers to go beyond this target. Why 25%? The court bases this decision upon scientific data, but also upon previous policy statements by Dutch authorities and upon the statement in court that a 25% emission cut in itself would not be entirely impossible to achieve. The Court rejects the policy decision to stall the reduction speed until 2030, by arguing that this approach ‘will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by the State. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of 25-40% in 2020.’

There are many very important elements in this judgement that warrant further discussion and research. It is clear that the Dutch Court provided a break-through in climate change litigation, at least in the Netherlands. We have to wait and see whether this approach is copied by courts in other countries, and, first, whether this spectacular decision survives appeal. The Dutch government did not yet indicate whether it will appeal the judgement. It currently ‘studies’ the decision.

Update: Subsequent to the writing of this blogpost, the government of the Netherlands indeed appealed the Urgenda case. On 9 October 2018, the Higher Court in The Hague rejected all objections by the State. An explanation of this second sensational judgment is available here.