Thursday, November 16, 2017

COP 23 Day 11 – Julia

While Katie shared her experiences with the education-themed events at the conference, I couldn’t stop rambling with overwhelming excitement and emotion about climate litigation panels that I had attended (we later discovered that we heard the same lawyer from Fiji who we both really appreciated, but I’ll talk about it later!)

I started my day with a cup of coffee and chocolate at the Nordic Pavilion where I heard from three women politicians from different Swedish parties about Sweden’s climate legislation, and particularly about their newest Climate Act. The Act comes into power on January 1, 2018 and sets binding obligations for the government to fulfill its climate targets. I found particularly interesting that the Act triggers the creation of an independent task force that will review government compliance with climate policy goals

every 4 years to ensure political continuity to climate agenda. I found Swedish legislative model really progressive since the speakers mentioned that the Act will help to harmonize all government ministries, institutions and budgets. Overall, the panel presented Sweden as a leader in climate change legislation and I think Swedish politicians aimed to channel the idea that all EU policies need to be made consistent with the Paris agreement, and that Sweden can spearhead that process.  

In the afternoon I attended three more side events on climate legislation that complemented one another really well. All the panels discussed the place of litigation and dispute arbitration in climate change response. As Katie said, this i field is just emerging so lawyers, activist and policy makers have a lot of enthusiasm but also a lot of questions and guesses about how to best move forward.

I enjoyed the presented from the Grantham Research Institute on Climate Change and Environment from the London School of Economics (LSE). They have a Climate Governance and Legislation Center which is currently developing a topology to determine what constitutes good climate governance. One of their speakers emphasized the need to look at both laws and policies since different countries may have different approaches to regulate climate action. They do both quantitative and qualitative studies, and I was impressed to learn that since 1997 to 2017, the number of climate laws increased from only 70 to 1400 laws! The laws, however, are disproportionately skewed towards legislation of the energy sector—so in the near future we can anticipate more legislation in other sectors like agriculture, forestry, etc.  

While all events I attended discussed specifics of litigation, I appreciated that all of them also looked at legislation itself critically. Laws certainly create enforceable rules and accentuate responsibilities, however, institutions should also work together well to operationalize legislation. This resonated to me with the Swedish discussion in the morning about the Climate Act which seems to incorporate monitoring of institutional and ministerial harmonization to ensure successful application of the law.

Although many activists seem very enthusiastic about rights frameworks applied to climate issues, several panels also discussed limitations of law in achieving climate goals. I took the point that adjudication and litigation help clarify the law and mainstreams other issue areas such as women’s rights through land ownership that cumulative strengthen climate change resilience. On the other hand, negotiations are more cost-efficient under economic theory, but do not solve disputes. One speaker in particular emphasized that the Paris agreement will be in a constant state of re-negotiation due to the paradigm of national sovereignty (which means government changes will trigger different commitments to the Paris agreement). As we see, some states that agreed to the Paris provisions now disagree on some aspects,  and vice versa, so negotiations will probably still remain key in driving climate action.


Photo: LSE event. You may see that many of the event pictures look generic—well, this is a standard set-up of side events in Bonn (Climate Action) zone. There were two types of events at Boon Zone: side events (often catered, 1.5-2 hr usually bringing different panelists together under a  them), and pavilion events organized by the governments (these varied from country to country, so you can tell about national priorities from the events and tone in each pavilion. I attended an event at the Russian pavilion— and it was pure and shameless propaganda which was easy to tell if you are from the region.

Throughout the day I also have learned about many climate litigation cases, like the recent one in which a Peruvian farmer sued German energy company REW for contributing to climate change damages in his homeland. The court found the case admissible, and it will move forward. Another case to watch out for is People v Arctic Oil in which an Alliance of Greenpeace, youth activists and scientists sued Norway for the violation of the national contribution and the Paris agreement with a decision to open up Barents Sea oil exploration in 2016.  Also a series of interesting cases are coming from the Pacific. Katie mentioned a woman lawyer/activist from Fiji who also spoke at one of my events. What fascinated me most was how the lawyer talked about the need to educate the community for a long time before filing the lawsuit. She mentioned that people in rural areas who are affected by climate change most do not see it as rights issue and often explain it through God’s will. She implied that education is necessary to ensure that people can give good testimonies that will help shape the case. This made me think about relational dynamics of different world views. I am particularly intrigues to see how we can deal with the interaction of cultures, norms, political and legal systems and entire worldviews in climate litigation since these cases often involve wealthier, post-industrialized states—polluters, and poorer states that are most affected. When this lawyer was making remarks about education, I read as “we need to indoctrinate people to think in the western notions of land, rights, ownership, individual, etc. to win these cases”—and  I am not sure this is a good thing.

I really enjoyed Q&As in these sessions as they were more practical and specific, so I learned a ton. For example, someone asked about the possibility to put awards from court cases into a special fund to then cover climate financing gaps more efficiently, or the possibility to litigate against banks who finance fossil fuel companies. In fact, several attempts to hold banks as potentially liable are underway (i.e. banks funding Dakota Access Pipeline came under pressure from investors). Another fascinating case, is with Pennsylvania Pension Fund suing Exxon Mobile for climate deception!

My major takeaway was that both adjudication and litigation have a lot to offer, but should be advanced carefully so as to not damage negotiations. This sounds like a quite challenging task, as the pursuit of justice often requires non-compromise. But despite uncertainties, I am very energized by these talks and the potential of a new wave of climate litigation that can change both state and corporate responsibility for climate action.

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