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

08/09/2015

Legal Efforts to Achieve Optimal Transboundary Population Level Management for European Large Carnivores

Europe experiences a large carnivore comeback: the European Union hosts 12,000 grey wolves (Canis lupus), 17,000 brown bears (Ursus arctos) and 10,000 Eurasian lynx (Lynx lynx). Most of these populations (8/10 wolf populations; 8/10 for bear; 10/11 for lynx) do not live within the boundaries of one country and are shared by two or more countries.[1] It is widely accepted that conservation planning for these species should be adjusted to the biological unit of each population, rather than to international frontiers. As EU Member States provide different levels of protection for large carnivores legal fragmentation arises.[2] It becomes then increasingly difficult, taking population sink effects [3] into account, to maintain viable large carnivore populations without a neighbour’s help.

Detailed criteria for optimal transboundary population level management (TPLM) are set out in the Guidelines for Population Level Management Plans for Large Carnivores (Carnivore Guidelines).[4][5] I analyse the role of the applicable international legal framework as regards the implementation of TPLM. Key instruments are the Bern Convention on European Wildlife Conservation and the EU Habitats Directive. For two sets of large carnivore populations, the Alpine and Carpathian ones, additional legal instruments are in place, that is the Alpine and Carpathian Conventions with their Protocols on biodiversity.

The first criterion of the Carnivore Guidelines requires a shift of focus from the management of transboundary populations at the national level to the population level. The drafters of the Bern Convention and the Habitats Directive focused obligations principally at the national level. Gradually measures were taken under both instruments to overcome this potential shortcoming by respectively adopting Recommendations (Bern Convention) and guidance (Habitats Directive) calling for TPLM. These instruments are not legally binding and therefore uncertainty remains whether population management must be carried out at the population level/and or at the national level.[6] Achieving management at the population level is further complicated by the scope of the Bern Convention and the Habitats Directive. Their scope coincides with the country’s border of the Contracting Parties, respectively Member States. In other words, these countries commit each individually to only protect large carnivores present within their own borders. In contrast, the Alpine Convention and the Carpathian Convention require large carnivore management to be conducted at the population level, through a combination of legally binding provisions and non-binding guidance and the fact that the scope of these mountain regimes coincides with the biological unit (that is the Alpine and Carpathian mountain ranges), which coincides approximately with the contours of the large carnivore populations concerned. By way of explanation, the Contracting Parties of the Alpine and Carpathian Convention commit collectively to protect large carnivores wherever present throughout the mountain range, going beyond strict adherence to country borders.

A second criterion requires the operationalization of TPLM through the development of management plans at the population level. The commitments to draw up TPLM plans enshrined in the Bern Convention’s Recommendations are not legally binding. Whereas the Habitats Directive guidance requires TPLM plans to be drawn up this obligation is not binding either. It cannot be considered an obligation of result as a Member State cannot be held responsible for the failure to develop a management plan if one (or more) of its neighbours does not agree to develop such a plan. It is solely an obligation of effort.[7]Conversely, for Contracting Parties of the mountain regimes stronger commitments apply regarding the development of transboundary management plans.

Legal fragmentation under the Bern Convention and Habitats directive

A third criterion of the Carnivore Guidelines requires that best management practices are developed and applied. The four international and European legal instruments under discussion set up structures to ensure actual implementation of TPLM. The Bern Convention’s Group of Experts on the Conservation of Large Carnivores in Europe facilitates TPLM by monitoring Contracting Parties’ implementation of this obligation. The 2014 terms of reference of the EU Platform on Coexistence between People and Large Carnivores provide that the Platform facilitates TPLM and the implementation of the LIFE program, although this program so far [8] primarily attacks threats at a local scale, contributes to the population’s viability too. Under the mountain regimes significant progress has been made towards achieving common monitoring and management measures for large carnivores throughout the mountain ranges. The Carpathian Working Group on Conservation and Sustainable Use of Biological and Landscape Diversity develops common monitoring standards and BioREGIO Carpathians developed common management measures in transboundary pilot areas. The Alpine Working Group Large Carnivores, Wild Ungulates and Society Platform develops common monitoring standards and is expected to propose common management standards for the Alpine region by 2016.

In the end, even if full-fledged transboundary population level management has not yet been achieved for any population (no transboundary management plans have been adopted yet for Europe’s large carnivore populations)[9] the two mountain regimes have distinct features that make them better equipped for achieving actual implementation of TPLM than the Bern Convention and Habitats Directive.

This blog post is the result of discussions at the Environmental Law Lunch of June 8 @ Tilburg University and a poster presentation [8MB PDF] at the International Congress for Conservation Biology and European Congress for Conservation Biology (3-7 August 2015, Montpellier).

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.   

26/05/2015

Enforcement of the EU ETS in the Member States: Further improvements needed

Although the EU Emissions Trading Scheme (EU ETS) has been operating now in three trading phases for ten years and has been extensively covered by legal research, there has been remarkably little attention for the enforcement of the ETS. Although, generally, we have seen an increasing centralization of the EU ETS, monitoring and enforcement still are largely in the hands of the emissions authorities in the states in which the EU ETS operates: 28 EU Member States plus Norway, Liechtenstein and Iceland. As part of the EU funded FP7-project ENTRACTE (Economic iNsTRuments to Achieve Climate Targets in Europe), we did an ex-post evaluation of the legal implementation of the EU ETS at Member State level with a focus on compliance. We wanted to know whether the effectiveness of the compliance mechanism of the EU ETS has been improved over the years and what further improvements (if any) are necessary. We reviewed the relevant EU law in each of the three phases, reviewed previous evaluations and relevant research projects, and evaluated the implementation of the EU ETS in selected Member States, both through existing sources and through interviews with key players in the compliance mechanism at Member State level. The Member States that we studied were Germany, the Netherlands, Hungary, Greece, Poland and the UK.

The EU ETS is the largest trading program in the world designed to combat global climate change.  The theory behind emissions trading is that a market mechanism is established in order to mitigate greenhouse gasses. After a cap is set and potential polluting firms have obtained allowances to emit, they can either (1) reduce their emissions and sell their allowances by for example investing in technological innovation; (2) use their allowances in order to cover their emissions; or, (3) increase their emissions by buying additional allowances on the market. The crucial importance of a well-developed and operationalized compliance chain has been neglected in the original design. In fact, a striking paradox of the EU ETS is that while the idea is that the market should be the place to regulate greenhouse gas (hereafter: GHG) emissions, the system only functions if it operates in a highly regulated context. Market participants must have the confidence that the system is transparent and consistent, and that it guarantees a level playing field for all actors in the 31 participating States because every firm complies with the rules. Effective enforcement of the rules is, therefore, crucial.

The EU ETS legislation originally left a considerable amount of discretion to Member States. This particularly included operational elements of emission trading, such as registration, monitoring, verification, reporting and enforcement issues. Only after European law enforcement agencies signalled that in some European countries carbon trading fraudsters may have accounted for up to 90% of all market activity, with criminals pocketing billions, the compliance issue received increased attention. Moreover, different strategies for ensuring compliance among Member States give rise to distortions of the market for greenhouse gas allowances. The effectiveness and reliability of the ETS, therefore, to a significant extent depends on the effort of each of the Member States. Lack of compliance of only a few or even a single Member State can harm the functioning of the ETS in the entire EU.

We, as well as other researchers in the consortium (see the London School of Economic’ report on compliance), found that compliance with the EU ETS is high.  Most infringements are caused by genuine mistakes and lack of knowledge, not by deliberate actions to evade obligations. The majority of offences concerns the operation of an installation without holding the required permit, exceeding the deadline for submitting the emission report or not monitoring in accordance with the monitoring plan. It is also believed that the verification process pays off: many mistakes are discovered by private verifiers and subsequently rectified. Since prices of allowances have been very low, the majority of allowances are surrendered and not traded. Hence, the EU ETS has not been tested to the full yet, and it remains to be seen whether compliance will be as high in a market under stress (with high prices due to limited availability of allowances).

There are many indications that current enforcement activities will not suffice in a market under stress, although there a big variations among countries. The number of staff employed in the national emissions authorities, for example, differs enormously, ranging from 4 to 5 in Greece and Hungary to 150 in Germany, 40-50 of whom are devoted to inspecting compliance by installations, i.e., checking emission reports, monitoring reports etc. No need to explain what this means for effective enforcement. The biggest loophole that we found in our evaluation is the absence of site visits. Site visits are not yet part of the standard enforcement strategy of most Member States we studied. Only the UK and the Netherlands have a well-developed blueprint for conducting regular site visits on the basis of a risk assessment. There is a considerable risk that non-compliant behaviour will remain undetected when inspectors rely on data provided by the “paper work” that goes with the EU ETS in its  automated system. In the UK, the competent authority regularly conducts site visits as part of its enforcement strategy; 5% of the operators are audited each year. Operators receive notice of these audits since their purpose is more to check than to inspect, although formally the regulator could use its power of entry to perform an unannounced inspection. Regulators in England and Wales have developed a common format for reporting the results of site visits, which are entered into an electronic database. The details include a summary of the visit, any instances of non-compliance detected follow-up actions that have been agreed with the operator.  The findings of the site visit may also be shared with other government bodies. Non-compliance is explicitly recorded to create a database of historical performance for future reference. Follow-up varies from a phone call or a visit to slightly more invasive forms such as a warning. By comparison, in Germany inspection was until 2013 mainly an administrative process done behind the desk at the emissions authority.  This is true for most of the EU Member States. Germany has very recently changed its policy and now officers of the ETS authority do joint inspections together with officers responsible for the enforcement of regular environmental permits, thus benefiting from the experience and knowledge on past performance of the individual company that the latter usually has.

There is not enough space here to cover all the elements of the enforcement system in the Member States that can be improved. Overall, we concluded that Member States can learn a lot from each other’s attempts to close loopholes and fix weak spots in the compliance mechanism. Overall, more efforts should be undertaken to harmonize enforcement practices of the national competent authorities responsible for the enforcement of the EU ETS. This is not easily achieved. Our research clearly shows that compliance assistance is regarded as the most important element of the compliance cycle of the EU ETS: helping companies to apply with this complex regulatory instrument. Such compliance assistance is best offered at the national level in the national context. In addition, we think that the EU, with the extensive legislative framework for the EU ETS that was developed over the years, has exhausted its legislative powers in this area. Therefore, other forms of harmonization (e.g., network based peer review) need to be explored.

26/04/2015

Monitoring and conservation of large carnivores in Europe

Jennifer Dubrulle, junior member of the Ius Carnivoris project, a Tilburg University research project on the role of law in conserving and restoring wolves, bears and other European large carnivores, participated in a Large Carnivore Monitoring project in the Beskedy mountains in Slovakia. The project aims to track large carnivores and accurately map their presence in numbers. It is essential to correctly estimate the population numbers as hunting quotas are based on these estimations. Overestimations mean higher quotas, more carnivores shot, which might endanger the population’s viability. Underestimations mean lower quotas, less carnivores shot, which might negatively impact economic/recreational interests of hunters.

Lynx caught on camera

The high of our trip was the capture of a (well-known to be shy) lynx on our camera trap. We also were lucky enough to see quite some fresh tracks of bears, wolves, lynx, fox and hazel grouse and see wild animals (wood mouse, three-toed woodpecker), their remains (roe deer prey) and scats (wolves and lynx). All of this is well-documented in the photo-album .

The low of the trip was feeling the reality of living where large carnivores live. Shy from human presence, they often live in remote, difficult accessible, areas. The transformation from a domesticated office cat to a wild lynx was physically challenging.

18/03/2015

Strengthening wilderness protection in Antarctica

Tourists in Antarctica.

Human activities, especially those of tourism and other non-governmental character, have been increased substantially in Antarctica over the two last decades, both in numbers as well in diversity. Alone in the season of 2013/14, 37,405 tourists visited Antarctica, while in 2003/04 numbers accounted for 27,537 visitors, and in 1993/94 for 6,704 visitors only (IAATO statistics, 2015). In respect of diversity, classical tourism cruise ship became supplemented by such activities as kayaking, scuba diving, helicopter flights and landings, climbing, extended walks and marathons over the years (IAATO statistics, 2009/10). This expansion results in reduction, disappearance, fragmentation or isolation of habitats and natural landscapes, and thus clearly affects Antarctic wilderness adversely. The Protocol on Environmental Protection to the Antarctic Treaty of 1991, which entered into force in 1998, directs Parties to the Protocol to plan and conduct activities so as to limit adverse impacts and to avoid, inter alia, “degradation or substantial risk to, areas of […] wilderness significance” confirming that the protection of wilderness values, among others, must be a “fundamental consideration in the planning and conduct of all activities in the Antarctic Treaty area”. Additionally in 2009, General Principles for tourism in Antarctica were adopted, stating, among others, that “Tourism should not be allowed to contribute to the long-term degradation of the Antarctic environment and its dependent and associated ecosystems, or the intrinsic natural wilderness values of Antarctica”.

Despite these clear legal provisions, the protection of wilderness values in Antarctica has received, however, very little attention at the more concrete policy making in practice. Up to now, Antarctic Treaty Parties are very reluctant to prohibit an activity or to put it under certain restrictions because of the likelihood of negative impacts on Antarctic wilderness. This is mostly because of the difficulty to apply the concept of wilderness protection in regulating human activities in Antarctica. While some Consultative Parties consider the concept as too “subjective” and difficult to quantify, others think of it as a quite powerful argument for prohibiting or strictly regulating permanent facilities for tourism. Moreover, a lack of clear definition, what is understood as “wilderness” and the absence of concrete guidelines for implementation pose additional hurdles.

Against this background, a present research project at the University of Tilburg (Tilburg Law School, Department of European and International Public Law) investigates to what extent the “wilderness concept” can constitute a basis for regulating tourism and other non-governmental activities in Antarctica. In this framework, wilderness is rather defined by its physical characteristics – wideness (in terms of geographical size), an absence of major human infrastructure and settlement, and a relatively biological intactness – instead of relying on the term “wilderness” per se. To study the subject, particular wilderness regulations and management practices in other wilderness areas in the world will be examined, including examples from Lapland, the Northern Region of Finland, from Spitsbergen, a Norwegian archipelago in the Arctic Ocean, as well as from Canada and Alaska, the US. By studying these examples, possible lessons learnt for regulating diversity of tourism activities in Antarctica will be identified in order to improve the factual protection of Antarctic wilderness.

05/03/2015

Unconventional natural gas in South Africa: regulating the nexus between energy security and water security – Aspects of a research proposal

South Africa faces the challenge of meeting the needs of its (still) growing human population, and of doing it in a sustainable way, namely without affecting the ability of future generations to meet their needs. Energy plays a central role in this challenge, both because of its significance to economic development and because of the number interfaces and impacts it has on other critical sustainability issues – such as water security, among others.[1] In its quest for energy security, the South African government has identified unconventional gas (shale gas and coal bed methane) as a potential alternative energy resource.[2]

Coal bed methane is already being extracted in the Waterberg area of South Africa and the country is also looking to extract shale gas from the Karoo area.[3] The development of unconventional gas, however, poses a number of new challenges to existing regulatory regimes worldwide, including South Africa. These challenges are particularly pertinent to water resources.[4] The development of unconventional gas is (like most other fossil and some renewable energy sources) heavily dependent on water access and use.[5] This is mainly due to the extraction method of hydraulic fracturing whereby large amounts of water is mixed with chemical additives and pumped down a horizontal well under high pressure to enable the extraction of the trapped gas.[6] Studies indicate that the use of horizontal wells during a typical hydraulic fracturing process can require up to five times the water used by vertical wells.[7] The withdrawal of large amounts of groundwater can lead to the depletion of aquifers, and the hydraulic fracturing fluids known as flowback water, poses risks to water quality.[8] Issues of water security relating to water quality, quantity and availability are therefore at stake.[9] Because of the interdependence between the energy and water sector, an increase or decrease in one sector (energy or water) will immediately affect the other. South Africa is already struggling to maintain security of both water and energy supply and hence the energy-water nexus is very much related to its goal of achieving energy and water security.[10]

A report by the World Economic Forum highlights the interrelated risks between energy and water security as a security problem.[11] In addition other nexus frameworks include the notion of security as a normative goal complementing or even replacing the notion of sustainability.[12] The “nexus approach” is a new way to frame the interconnected challenges in water and energy governance, including within sustainable development policy goals. What is new about the nexus approach is that it considers multiple sectors as equally important.[13] Common features of existing energy-water nexus frameworks are interdependency between policy sectors, the need for integrated management across sectors and scales, and a focus on promoting security.[14]

While large amounts of water is needed for producing almost all varieties/types of energy – for example, cooling, storage, biofuels, hydropower – it is the process of hydraulic fracturing within unconventional gas development that poses the biggest risk to water quality in South Africa.[15] Concomitantly large amounts of energy are needed for pumping, storing, transporting and treating (for example, desalination) of wastewater – such as wastewater created from the hydraulic fracturing process during unconventional gas development.[16] An increase or decrease in one sector (energy or water) will immediately affect the other – if water is in short supply during droughts it may well lead to energy crises.[17] As per the World Energy Council:[18] “freshwater is required for each step – energy extraction and production, refining and processing, transportation and storage, and electric-power generation itself.” Without water and energy it will neither be possible to satisfy basic human needs nor achieve economic growth.[19] Notably, energy and water security risks depend upon the balance between economic, social and environmental consequences.[20] The cost of attaining energy and water security could be economic (eg) building new or replacing old energy and water infrastructure), social (eg closing energy and water allocations to restrict demand) or environmental (the pollution and deterioration of freshwater systems to reduce the risk of water shortage etc).[21]

While the drivers of energy and water security risk include socio-economic factors (such as population growth and economic activity) and natural phenomena (such as natural disaster, climate change impacts) it is the policies of each sector that are the biggest cause of risk.[22] This is the result of spill over effects – for example, the creation of incentives to meet energy security objectives results in the distortion of the demand for water.[23] Managing energy and water security risks necessitates the managing of trade-offs between separate or sector policy instruments.[24] Uncoordinated policy aimed at security in one area may result in less security in another: for example, less water security may be at the cost of greater energy security through unconventional gas development. Law as a social regulatory instrument is used to change human behaviour – and to achieve certain outcomes. Although a number of instruments within any regulatory framework could be used to meet energy and water security target(s) it is direct regulatory instruments such as laws or regulations stipulating, for example, quality standards, bans on certain products or practices, requirements for the application of best available techniques, obligations to obtain authorisations that are representing the bulk of instruments used.[25]

The nexus between energy and water related security objectives are not routinely addressed nor fully understood.[26] While the existence of the interdependence between energy and water is acknowledged in energy and water security terms[27] it is not certain whether the nexus (between energy and water security) is reflected in the South African regulatory framework generally, and specifically with regard to the development of unconventional gas. Regulatory frameworks that do not reflect the nexus between energy and water security, could, instead of ensuring energy and water security, achieve the opposite, namely energy and water insecurity.[28] This is applicable to regulatory regimes worldwide, including that of South Africa. Therefore it may be necessary to determine how other countries regulate and facilitate unconventional gas development and production within an energy and water security nexus.

A focus on the environmental impact(s) that pollution and depletion of water resources from the process of hydraulic fracturing within unconventional gas development may have on energy security (being an essential element of the energy/water security nexus) may provide a reference point for a comparative study on how other countries manage the energy and water security nexus in their respective regulatory frameworks.

26/02/2015

Towards smart environmental regulation that stimulates innovation

The economic crisis has spurred legislatures and regulators around the world to take away possible obstacles for economic growth through deregulation and to introduce or amend provisions with the aim to offer businesses greater flexibility and room for experiments. Environmental laws and regulations are often targeted by politicians and regulators because businesses complain that environmental rules and standards present stumbling blocks not just for economic growth in general, but for innovations that lead to a net benefit for the environment as well.

What is the relationship between environmental regulation (used here to indicate the various regulatory instruments such as EU Directives and Regulations, domestic Acts of Parliament and delegated regulations, as well as ordinances at decentralized levels of government) and innovations that leads to major improvements in environmental performance of businesses? When does environmental regulation hinder innovation and when does it promote innovation?

The market does not usually lead to innovation because environmental improvements are not often rewarded by the market: benefits are for society at large, not for individual businesses and do not, usually, lead to greater profits. Research shows that innovation efforts die as a consequence of internal obstacles (lack of know-how, lack of time and financial resources, unclear internal responsibility for innovation processes etc.). Therefore, the government plays an important role. How should the government than foster innovation? In a soft way (through the supply of information, training, subsidies, voluntary rules) or in a legally binding way? Over the past two decades, a lot of research focused on these questions. The starting point of all this research is the so called Porter hypothesis, developed by Michael Porter from the Harvard Business School (Porter 1991). His work has radically changed the way we look at the role of environmental regulation. The dominant idea of economists was that environmental laws and regulations are a burden for businesses. They have a negative impact on businesses even in case the environmental laws lead to benefits for society at large, because the introduction of new rules lead to reduced value within companies. The Porter hypothesis, which is broadly supported by empirical research, states that well designed environmental regulations lead to innovations that not only have a positive impact on the environment, but also lead to cost reductions for companies and, in the somewhat longer run, to a competitive benefit of the innovating company when compared to its competitors in the market. More specifically, environmental laws (Ambec et al. 2013):

• Indicate businesses that they are possibly using resources inefficiently and show them where potential improvements are;
• Laws aimed at the collection and dissemination of environmental information within the company helps the company to work better because of increased awareness and involvement of its employees (raising corporate awareness);
• Diminish uncertainty about the profitability of investments in clean technologies and practices;
• Introduces pressure that stimulates innovation and progress;
• Sets a level playing field in a transitional phase as a consequence of which opportunistic companies that do not innovate do not have economic benefits.

What is ‘well designed’ environmental regulation? Three factors are relevant: a) environmental regulation should leave maximum room for innovation, b) environmental regulation should focus on continuous improvement and not on the adoption of a certain technology, c) the regulatory process should leave as little room for uncertainty as possible.

Empirical research has shown that, based on these criteria, environmental taxes work very good, better than emissions trading (because with ETS there is always market uncertainty, and after the biggest players have acquired the necessary allowances, the need to improve is gone, and the ETS has very high transaction costs). Economic instruments like taxes have to be accompanied by other instruments: a) industry policy, patent law, subsidies and taxes aimed at enhancing innovation, b) programmes aimed at supporting managers of business corporations to acquire the necessary knowledge on possible technological innovations that are relevant for his or her company, c) legislation that aims to make information publicly available to spread innovations. The organisation of the business corporation itself needs to be adjusted to foster innovation too. Ground breaking empirical research into environmental performance in the paper from pulp industry in the US, Canada, Australia and New Zealand shows that big differences between companies that merely followed environmental regulations and those that went ‘beyond compliance’ were entirely to be explained from the internal culture of the company (Kagan, Gunningham, Thornton 2003).

Innovation can also be forced by regulators. This is called ‘technology forcing’: innovation is stimulated when the regulator sets unattainable environmental goals, goals that cannot be achieved when applying existing technology and regular practices. Regulation that is gradually becoming stricter leads to incremental changes and not to innovations (‘moving target regulation’). ‘Disruptive regulation’ does lead to innovation, as is best shown through the well-known example of the emissions from cars-standards introduced in the 1970s, first in California, later at the federal level in the US (aiming at a 90% reduction of polluting emissions). The adoption of these standards lead to the introduction of the catalytic converter. In Europe, a similar example exists with the 2000 End-of-life vehicles directive, requiring end-manufacturers to take back all their end of life vehicles and to reuse or recycle 80-95% of the vehicles. This has had a tremendous impact on the entire production chain, as car manufactures required their suppliers to deliver only reusable or recyclable parts.

This brief overview of what we currently know about the relationship between regulation and innovation shows that regulators should develop a regulatory policy aimed at stimulating innovation, rather than applying blunt deregulation policies or introducing all kinds of flexible norms that may or may not lead to innovation. Such a regulatory policy aimed at achieving innovation for better environmental and economic performance should take into account following lessons from more than 20 of academic research:

• Strict environmental goals that are stable for a good number of years are essential for radical innovation;
• Incremental improvements are facilitated by standards that gradually become stricter. In case the regulator opts for such gradually changing rules, radical innovation will not happen;
• The regulator has to take away information asymmetry and, more generally, embed strict environmental goals in a wider innovation facilitating policy.

At the Tilburg Sustainability Center, we are currently researching this issue within the context of the Netherlands Environment Act, which has rules on the environment, water, nature conservation, and land use planning. Empirical research into several cases in which radical innovation was pursued (sometimes successful, sometimes unsuccessful) provides us with very interesting findings. In a later blog, I will report on our findings in more detail. Generally, we find that environmental laws, currently, do not stimulate innovation following the guidelines described above. Instead, environmental laws, at best do not hinder innovations. Other constraints than those present in environmental law are more relevant, such as a non-cooperative attitude with individual government officials. Companies indicate that their enthusiastic new ideas and proposals are often met with scepticism. Often government officials first say: “no, this is impossible”, as they (especially those trained as lawyers!) are used to think in worst case scenarios, and aim for regulating against all possible negative consequences. When asked what the background of their response is, and both the official and the business representative jointly look for a solution for the underlying problem, it often appears that easy solutions exist.

Local political issues are a far bigger reason for failure or at least delays. Local politicians are interested in short term benefits for the local community that they represent. The direct, local impacts of innovations are not always known as we cannot rely on much experience (that is a typical feature of any innovation!). Local communities may, therefore, resist the unknown.

Problematic too are the number of government levels, agencies and divisions within one government level involved in some of the innovation project we researched, especially when the innovations have major spatial implications (such as the development of a zero emissions sustainable business park, applying circular economy principles). In such cases, it is important that there is business can rely on one contact point for all government issues involved. This person should coordinate the activities of various authorities involved, meet relevant officials and those bearing political responsibility, talk, persuade, and explain the project to all stakeholders involved, including local communities.

More generally, the case studies show that a positive, constructive personal attitude of all of those involved in the decision-making process is essential for the success of an innovation.

One element remains problematic, even with the presence of a lot of constructive and positive stakeholders, and that is the element of time. The experience of time in businesses is completely different from that within governments. Businesses see opportunities in the market and want to jump into these opportunities rather tomorrow than the day after. The decision-making process, especially when various levels of government are involved and a project becomes the subject of political deliberations, can take several years. At a given point, the market opportunity is gone, at which point the company or companies involved will have lost interest in the innovative project. This is a pity, not just for these companies, but also for the environment.

20/02/2015

Climate Induced Displacement or Anticipatory migration? Time to decide!

For a long while, environmental degradation, climate change and its impacts were primarily on the scientific—not public—agenda. The topic was surrounded by much scepticism and policy-makers had little interest to act upon it. Of course, the situation changed dramatically, with climate change now acknowledged as one of the central global challenges.[i] The impacts of climate change go far beyond damaging flora and fauna. Already in 1990, the IPCC predicted that one of the greatest impacts of climate change will be on human migration.[ii] People will be induced to move as a result of such factors as increasing intensity of extreme weather events, sea-level rise, droughts and accelerated environmental degradation. Although it is complicated to estimate the precise amount of those likely to be displaced as a result of global warming, according to the UN this number will range between 50 million and 350 million by 2050[iii]

From the legal perspective, people relocating or being displaced due to climate change fall in something of a limbo, not fitting under existing international legal frameworks. While several approaches to conceptualize this group of people have been suggested, no solution so far has been found. Despite the differences, existing approaches (for example, expanding the 1951 Refugee Convention to include people displaced by climate change, creating a separate convention, or drafting an optional protocol to the UNFCCC) tend to treat climate induced migration as a protection issue, where people affected by climate change need to be protected through this or that mechanism based on this or that grounds. This approach, as McAdam explains, is based on “the assumption … that movement is forced and should be treated as a refugee-like nature, with binding protection obligations for States … with respect to those displaced.”[iv]

At the same time, achieving any success through this protectionist approach appears hardly realistic. States are reluctant to accept responsibilities towards people affected by climate change, to develop new treaties, or to expand existing ones.[v] Furthermore, still very little is known about this type of movement, empirical data is limited, and proving that climate change is a “push factor” for migration is not possible.[vi]

The hopeless protectionist approach means, in reality, a “wait-and-see approach”. While negotiations and political debates remain stuck, the situation of people living in the areas affected by climate change will continuously worsen. At some point this will leave these people with no other choice than to look for a better and more secure livelihood elsewhere. Since they largely lack any legal grounds for relocation, they will use any opportunities, including dangerous and illegal.

Developed countries, particularly the USA, Australia and the EU’s member states, as top destination countries for migrants, have a choice to stick to the wait-and-see approach or to start taking anticipatory measures to mitigate the upcoming migration crisis. The examples of the Lampedusa and Christmas Islands, and the facts that there are already 16.7 million refugees and 51.2 million forcibly displaced persons worldwide who have no durable solution in sight, are just some of the arguments against waiting until people affected by climate change will join the fate of “boat people”.[vii] Another argument is that, as McAdam has warned – “a wait-and-see approach” with respect to movement … could ultimately stimulate a dynamic interpretation of human rights law so as to provide a remedy for people whose homes have become uninhabitable. This, in turn, may create a precedent for accepting people from other affected States (with much larger populations, such as Bangladesh).”[viii]

Tuvalu (Creative Commons license. Photo: Tomoaki INABA at Flickr)

These concerns are in fact no longer just theoretical, since the first case has already been ruled, with a Tuvaluan family getting a residence in New Zealand on humanitarian grounds. The “decision of the New Zealand Immigration and Protection Tribunal does not grant the applicants refugee status under the 1951 Refugee Convention.The bases for humanitarian status were the applicants’ strong family ties and community connections in New Zealand, and not the climate change claim[ix]. Therefore, the applicants are not the world’s first climate change refugees, contrary to the numerous headlines of the media.[x] The decision of the New Zealand Immigration and Protection Tribunal has no impact at international level. As Corendea, a legal expert at the United Nations University, said in that regard, “It is not significant for the international arena, as this is an isolated rule … and the decision of the court may not set a precedent, but an example at best.”[xi] However, this doesn’t mean that the case is internationally irrelevant. “Tribunals and courts in other countries looking at similar issues could find the reasoning persuasive.”[xii] Furthermore, as François Gemene argues while the legal implications of this case are yet small, the political ramifications may be vast.

At first glance, one of the remedies against the escalation of the migration crisis can—paradoxically—be anticipatory migration. In fact, there is sufficient evidence that promoting migration—i.e. allowing temporary, seasonal labour migration of people leaving areas affected by climate change, giving them opportunities to improve their economic situation and to mitigate the risk that they will be induced to relocate—can be an attractive way to diminish the crisis. Besides the fact that allowing for legal immigration will mitigate irregular migration, it can generate a triple-win and be beneficial for migrants, sending countries, and destination countries.

The potential benefits of migration and its positive influence on development are in general well-acknowledged. As Kofi Annan, ex-Secretary-General of the UN emphasized, “The potential for migrants to help transform their native countries has captured the imaginations of national and local authorities, international institutions and the private sector.” Migration is acknowledged as the most effective mechanism to rapidly increase the incomes of poor people. [xiii]

For people affected by climate change, the most important benefit is that labour migration contributes to the adaptive capacity and resilience of places affected by climate change and helps to develop responses against climate change.[xiv] As Adger explains, the capacity of a system to respond to climate change to moderate or avoid its negative consequences is a function of a number of properties, including: financial resources (to pay for adaptation); governance (to steer the adaptation process and how legitimate that process is); information (to anticipate climate risks, devise appropriate adaptations, and learn from their implementation); social resources (to network and form bonds among people and groups so that social responses to climate change are cohesive, equitable, and robust); infrastructure; and technology (to provide tools and crafts that help adapt)[xv]. Migration can therefore make significant positive contributions to many of these determinants of adaptive capacity. For example, remittances increase financial resources, and migrants can increase a community’s access to information and expand social networks. [xvi] In this sense, migration can offer a “brain gain” rather than merely a “brain drain” (ADB, 2012).[xvii] Job opportunities abroad can also help motivate the young to acquire the appropriate skills.[xviii] Furthermore, even short term migration reduces stresses on the environment, and helps mitigate overfishing and water pollution.

However, it is not only the sending countries and migrants which benefit. Differences in the supply of and demand for labour across countries present opportunities for mutual benefits from mobility.[xix] The current world population is projected to increase by 1 billion over the next 12 years and reach 9.6 billion by 2050. This growth will be mainly in developing countries, with more than half in Africa.[xx] Therefore, the growth will mainly take place in the countries which may not be able to offer sufficient resources, infrastructure, and institutes their to populations. At the same time, the working age population in the high-income countries will be declining due to low fertility and aging of the population.[xxi] This will necessitate greater flows of workers from low-income to high-income countries, as the latter seek to maintain the size of their workforces. For destination countries, well-managed migration can help bridge labour market gaps, provide labour to fuel structural economic transformation, drive innovation through migrants’ dynamism, and contribute to social security systems.[xxii]

Therefore, creating migration schemes and expanding existing ones can help the development and adaptation in the countries affected by climate change countries, fill the labour shortages in the developed countries, and diminish the risk of illegal immigration of people living in the regions affected by climate change.

Nevertheless, it has to be acknowledged that promoting migration on the regional level is not a panacea for a global migration crisis. The challenging nature of climate-induced displacement and migration requires complex solution. The negotiations on the international level must continue, and the international community must start acting. However, giving an anticipatory chance to some victims of climate change to migrate can positively contribute to the global solution.