Measures on the reduction of greenhouse gas emissions with private sector involvement

Under the international climate change regime, three different systems were introduced to address the increase of GHG emissions and the problem of human-induced global warming: the clean development mechanism, the emission trading system and a reporting system.[1] By private sector in this specific case, we understand both the industry and the non-profit sector, represented by non-governmental organisations (NGOs).

In the functioning of the climate change regime, the progressive use of market-based mechanisms is seen as another innovation to deal with compliance or prevent non-compliance. Market-based mechanisms had been introduced and relied upon in other areas of IEL, but notably they have been tapped into under the international climate change regime. The trading of emissions has been based on international climate change law. The use of market-based mechanisms in the system aims at improving the level of implementation to efficiently limit and reduce greenhouse gasses emissions. The system put into practice by the KP considered clean air as a commodity, making it one of the tradable commons. However, KP failed to remain attuned to changing situations as the fluctuations of the emission market did not contribute a great deal to the stability of the model.

Article 15 of the Paris Agreement does not regulate the new compliance mechanisms in detail but instead outlines in two sub-articles its configuration for the whole agreement. Details about the compliance mechanism are further elucidated in the Rulebook of the Paris Agreement, mainly drawn up in the Conference of the Parties (COP) 24, covering aspects such as mitigation, adaptation, loss and damage, indigenous people’s platform and transparency, and the register of nationally determined contributions.

The initial idea behind the cap-and-trade system was the allocation of pollution quotas amongst main emitters and the creation of a market for emissions rights. Clearly, a system as such cannot resolve the problem and requires a mechanism to guarantee compliance. In practice, the emerging market created on the basis of the allocation of emissions rights, leading to the sale of the unused credits (excess). The effectiveness of the system rests on market forces, and this caused some disruptions in practice due to the low price of carbon. The system heavily relies on the incentives; therefore, as in the case of the CO2 European emission allowances price, the drop of the price of CO2 decreased encouragement to comply with curbing the emissions.

The reduction of greenhouse emissions in developing countries has taken different forms. Multiple initiatives in the agricultural sector have focussed on curbing emissions and dealing with the adaptation and mitigation challenges posed by climate change. Few solutions, however, have addressed the needs of producers and local communities. In Costa Rica, initiatives implemented in the coffee sector have emphasised the participation of small coffee producers and local communities.

Targeting specific GHGs (emissions of nitrous oxide, CO2 and methane), initiatives like carbon neutral coffee or coffee nationally appropriate mitigation actions (NAMA) have been launched. This has led to emissions reductions concerning the use of fertilisers, increasing awareness about the release of gases into water and air. By creating a new labelling system, coffee producers have benefited from access to markets.

The advantages presented by other market-based mechanisms, such as ecological services, have also contributed to a new paradigm of re-distribution of benefits. The PA has introduced new legal bases for private sector involvement in ICCL by integrating specific provisions to channel non-governmental participation.

Against this background, from a conceptual standpoint social justice in the context of climate change should take into consideration the following aspects: transparency, including the participation of sectors involved; the achievement of the Sustainable Development Goals; and access to environmental information and environmental justice.

Market mechanisms prove to work well in conjunction with other ancillary provisions that complete the system adopted at the COPs.[2] These mechanism are rooted in the UNFCCC, which serves as the ground to build on the experience and improve mechanisms such as REDD-Plus, which has been updated on several occasions.

The ICCL system was based on the creation of market-based mechanisms, calling on States to set a limit, or cap, on greenhouse gas emissions, thereby introducing emissions rights. If States or private parties that have been allocated emissions rights reduce emissions below their cap, they can trade the equivalent excess in emissions rights (measured in tonnes of CO2). On the other hand, States and companies that fall short of their target may acquire these rights on the market. Putting a tag on emissions can bring numerous benefits. At the same time, emissions trading raises some crucial issues, such as measurement (i.e. how to ensure that each unit equates a true one-tonne reduction). In addition, the system needs to guarantee that each unit is used only once through the adoption of clear rules and transparency.

PARIS AGREEMENT

2015

Article 2

1 This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

a Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

b Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and

c Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

2 This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.

Article 3

As nationally determined contributions to the global response to climate change, all Parties are to undertake and communicate ambitious efforts as defined in Articles 4, 7, 9, 10, 11 and 13 with the view to achieving the purpose of this Agreement as set out in Article 2. The efforts of all Parties will represent a progression over time, while recognizing the need to support developing for the effective implementation of this Agreement.

Article 4

1 In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.

Article 6

  • 1 Parties recognize that some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity.
  • 2 Parties shall, where engaging on a voluntary basis in cooperative approaches that involve the use of internationally transferred mitigation outcomes towards nationally determined contributions, promote sustainable development and ensure environmental integrity and transparency, including in governance, and shall apply robust accounting to ensure, inter alia, the avoidance of double counting, consistent with guidance adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
  • 3 The use of internationally transferred mitigation outcomes to achieve nationally determined contributions under this Agreement shall be voluntary and authorized by participating Parties.
  • 4 A mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development is hereby established under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement for use by Parties on a voluntary basis. It shall be supervised by a body designated by the Conference of the Parties serving as the meeting of the Parties to this Agreement, and shall aim:

a To promote the mitigation of greenhouse gas emissions while fostering sustainable development;

b To incentivize and facilitate participation in the mitigation of greenhouse gas emissions by public and private entities authorized by a Party;

c To contribute to the reduction of emission levels in the host Party, which will benefit from mitigation activities resulting in emission reductions that can also be used by another Party to fulfil its nationally determined contribution; and

d To deliver an overall mitigation in global emissions.

Article 7

1 Parties hereby establish the global goal on adaptation of enhancing adaptive capacity, strengthening resilience and reducing vulnerability to climate change, with a view to contributing to sustainable development and ensuring an adequate adaptation response in the context of the temperature goal referred to in Article 2.

  • 2 Parties recognize that adaptation is a global challenge faced by all with local, subnational, national, regional and international dimensions, and that it is a key component of and makes a contribution to the long-term global response to climate change to protect people, livelihoods and ecosystems, taking into account the urgent and immediate needs of those developing country Parties that are particularly vulnerable to the adverse effects of climate change.
  • 3 The adaptation efforts of developing country Parties shall be recognized, in accordance with the modalities to be adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement at its first session.
  • 4 Parties recognize that the current need for adaptation is significant and that greater levels of mitigation can reduce the need for additional adaptation efforts, and that greater adaptation needs can involve greater adaptation costs.
  • 5 Parties acknowledge that adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems, with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate.
  • 6 Parties recognize the importance of support for and international cooperation on adaptation efforts and the importance of taking into account the needs of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change.
  • 7 Parties should strengthen their cooperation on enhancing action on adaptation, taking into account the Cancun Adaptation Framework, including with regard to:

a Sharing information, good practices, experiences and lessons learned, including, as appropriate, as these relate to science, planning, policies and implementation in relation to adaptation actions;

b Strengthening institutional arrangements, including those under the Convention that serve this Agreement, to support the synthesis of relevant information and knowledge, and the provision of technical support and guidance to Parties;

c Strengthening scientific knowledge on climate, including research, systematic observation of the climate system and early warning systems, in a manner that informs climate services and supports decision-making;

d Assisting developing country Parties in identifying effective adaptation practices, adaptation needs, priorities, support provided and received for adaptation actions and efforts, and challenges and gaps, in a manner consistent with encouraging good practices; and

e Improving the effectiveness and durability of adaptation actions.

  • 8 United Nations specialized organizations and agencies are encouraged to support the efforts of Parties to implement the actions referred to in paragraph 7 of this chapter, taking into account the provisions of paragraph 5 of this chapter.
  • 9 Each Party shall, as appropriate, engage in adaptation planning processes and the implementation of actions, including the development or enhancement of relevant plans, policies and/or contributions, which may include:

a The implementation of adaptation actions, undertakings and/or efforts;

b The process to formulate and implement national adaptation plans; c The assessment of climate change impacts and vulnerability, with a view to formulating nationally determined prioritized actions, taking into account vulnerable people, places and ecosystems;

d Monitoring and evaluating and learning from adaptation plans, policies, programmes and actions; and

e Building the resilience of socioeconomic and ecological systems, including through economic diversification and sustainable management of natural resources.

  • 10 Each Party should, as appropriate, submit and update periodically an adaptation communication, which may include its priorities, implementation and support needs, plans and actions, without creating any additional burden for developing country Parties.
  • 11 The adaptation communication referred to in paragraph 10 of this chapter shall be, as appropriate, submitted and updated periodically, as a component of or in conjunction with other communications or documents, including a national adaptation plan, a nationally determined contribution as referred to in Article 4, paragraph 2, and/or a national communication.
  • 12 The adaptation communications referred to in paragraph 10 of this chapter shall be recorded in a public registry maintained by the secretariat.
  • 13 Continuous and enhanced international support shall be provided to developing country Parties for the implementation of paragraphs 7, 9, 10 and 11 of this chapter, in accordance with the provisions of Articles 9, 10 and 11.

14 The global stocktake referred to in Article 14 shall, inter alia:

a Recognize adaptation efforts of developing country Parties;

b Enhance the implementation of adaptation action taking into account the adaptation communication referred to in paragraph 10 of this chapter;

c Review the adequacy and effectiveness of adaptation and support provided for adaptation; and

d Review the overall progress made in achieving the global goal on adaptation referred to in paragraph 1 of this chapter.

Article 8

  • 1 Parties recognize the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.
  • 2 The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts shall be subject to the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement and may be enhanced and strengthened, as determined by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
  • 3 Parties should enhance understanding, action and support, including through the Warsaw International Mechanism, as appropriate, on a cooperative and facilitative basis with respect to loss and damage associated with the adverse effects of climate change.

Article 9

  • 1 Developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention.
  • 2 Other Parties are encouraged to provide or continue to provide such support voluntarily.
  • 3 As part of a global effort, developed country Parties should continue to take the lead in mobilizing climate finance from a wide variety of sources, instruments and channels, noting the significant role of public funds, through a variety of actions, including supporting country-driven strategies, and taking into account the needs and priorities of developing country Parties. Such mobilization of climate finance should represent a progression beyond previous efforts.

Article 14

  • 1 The Conference of the Parties serving as the meeting of the Parties to this Agreement shall periodically take stock of the implementation of this Agreement to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals (referred to as the “global stocktake”). It shall do so in a comprehensive and facil-itative manner, considering mitigation, adaptation and the means of implementation and support, and in the light of equity and the best available science.
  • 2 The Conference of the Parties serving as the meeting of the Parties to this Agreement shall undertake its first global stocktake in 2023 and every five years thereafter unless otherwise decided by the Conference of the Parties serving as the meeting of the Parties to this Agreement.
  • 3 The outcome of the global stocktake shall inform Parties in updating and enhancing, in a nationally determined manner, their actions and support in accordance with the relevant provisions of this Agreement, as well as in enhancing international cooperation for climate action.

Article 15

  • 1 A mechanism to facilitate implementation of and promote compliance with the provisions of this Agreement is hereby established.
  • 2 The mechanism referred to in paragraph 1 of this chapter shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive. The committee shall pay particular attention to the respective national capabilities and circumstances of Parties.
  • 3 The committee shall operate under the modalities and procedures adopted by the Conference of the Parties serving as the meeting of the Parties to this Agreement at its first session and report annually to the Conference of the Parties serving as the meeting of the Parties to this Agreement.

Source: https://unfccc.int/process-and-meetings/ the-paris-agreement/the-paris-agreement

4 The emerging ‘climate change litigation’ before national courts and international tribunals: effective decentralising compliance control?

Due to the complexities and interdisciplinary nature of the international climate change legal framework, its effects on domestic legal systems are considerable. National courts are faced with manifold questions, such as determining causation of environmental harm originating in climate change and adopting

Climate change 235 appropriate reparations. In the absence of a comprehensive international legal framework for climate change litigation (CCL), the legal scenario is fragmented as it comprises a wide range of international and domestic law provisions.

This is closely linked to access to environmental justice, featuring claims regarding companies’ liability and state responsibility for climate change proposing alternative compliance methods and alternative means of achieving compliance.

Notably, the implementation of obligations under the climate change regime within the national sphere constitutes a legal conundrum and involves different government levels. Non-compliance with the norms of the international climate legal system (broadly defined) has led to emerging litigation in several developing countries. This inobservance may be directly related to the cap on CO2 emissions or may consist of difficulties arising out of the implementation of specific provisions (such as the production of diesel cars), the prevention of a potential environmental harm or the reparation of actual environmental damage.

Interestingly, complaints are submitted in the event of natural disasters or the threat of environmental harm. At this point, it is also worth noticing that there are a strain of cases in which the protection of human rights granted in national constitutions and international human rights treaties is invoked as the main cause of action.[3] Remarkably, the protection of the right to life and the right to a healthy environment are frequently argued to be the foundation of the claims. CCL does not operate in a vacuum, and, therefore, the interplay with other areas of international law is not infrequent.

At the outset, an important distinction relates to the difference between climate change litigation and climate justice. This distinction is not minor, particularly in the developing world. Whereas climate change litigation encompasses all the different procedural avenues to address climate change-related environmental damage, climate justice refers to the outcome of the process, i.e. to achieve a fair outcome.

This type of litigation raises questions for the current debate and the future development of climate change law as a discipline. In this spirit, the emergence of a transnational climate change legal regime from a bottom-up approach, includes climate change litigation cases across various regions and countries.

The UNFCCC has given rise to a complex legal system (with the Kyoto Protocol and the Paris Agreement as the central legal instruments) that must, in turn, be incorporated into national legal orders. In addition, the body of decisions emanating from the COPs also have (direct or indirect effect) on domestic law.

Climate change litigation has resulted in a new legal scenario in which the national judge is called to adjudicate complex cases involving the application of specific international law or international law-driven provisions, sometimes being faced with a legal lacuna or loophole. The resilience of the national legal systems (as regards their domestic environmental law) to provide an adequate response is tested. To make matters even more complex, common law and civil law systems operating in national spheres respond differently to the legal challenges posed by climate change. Even if legal scholars have tried to bridge them, taking a comparative law perspective to find a solution, one must remain cautious and bear in mind the differences between both systems. To illustrate, in common law jurisdiction, if a court finds that specific emissions by a company are contributing to climate change, under tort law, the court is called to determine whether the company has a duty of care to the claimant, grounding its analysis in previous case law. Civil law systems are statutory and rely on a compilation of legal provisions (civil or agrarian codes), which often precludes the possibility of going beyond the textual interpretation of the law.

CCL brings several challenges to national law and justice that mainly concern the sources of law and the role of the judges when resolving climate change-related disputes. One of the main challenges regarding CCL is that the frame for analysing climate change claims consists of an emerging and relatively new legal subject. Prior to scrutinising those challenges, it is useful to refer to the foundation of CCL and to the concept of climate justice, and to then address the specific features of climate change law and the current legal landscape of CCL.

For the purposes of this chapter, climate change litigation is understood as any legal action (rooted in public, human rights or criminal law) which is brought before the courts or quasi-judicial bodies (such as governmental Commissions) concerning the effects of climate change. Although the definition may seem clear, it is quite complex to demarcate what constitutes climate change litigation as there are several implications, and it is difficult to trace the various actions (personal choices, commercial and industrial activities) that cumulatively result in climate change. Ultimately, every single action has a carbon footprint. In order to circumscribe the scope of the analysis, CCL is understood as covering only disputes in which climate change argument is unambiguously included as part of the claimant’s or defendant’s case.

Climate justice stems from environmental justice, a term coined in sociology by Bullard, encompassing several principles which guarantee to ‘be based on mutual respect and justice for all peoples, free from any form of discrimination or bias’. Notably, the inequality dimension constitutes an essential element of it.

1

Robert D. Bullard» ‘Environmental Justice for AH’, Environmental Justice: An Interview with Robert Bullard Earth First! Journal, July 1999, http://www.ejnet.org/ej/bullard.html See also, First National People of Color Environmental Leadership Summit held on October 24-27, 1991, in Environmental Justice Principles, available at http://www.ejnet.org/ej/principles.pdf accessed 1 April 2020.

In turn, climate justice is defined by reference to human rights as access to justice to

safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources.[4]

Hence, the protection of human rights underpins the notion of climate justice through the various principles deemed the tenets. According to the Mary Robinson Foundation, a series of principles/obligations should be observed by states. These are, namely, to: respect and protect human rights; support the right to development; share benefits and burdens equitably; ensure that decisions on climate change are participatory, transparent and accountable; highlight gender equality and equity; harness the transformative power of education for climate stewardship; and use effective partnerships to secure climate justice.

This distinctive stance was observed in COP 21, where the environmental justice movement called for the adoption of a ‘Mother Earth approach’. A shift in the conception of climate justice under the Paris Agreement (PA) can be observed as the preamble notes

the importance of ensuring the integrity of all ecosystems, including oceans, and the protection of biodiversity, recognized by some cultures as Mother Earth, and noting the importance for some of the concept of “climate justice”, when taking action to address climate change.

Equally, the PA acknowledges vulnerabilities in facing climate change and sticks to the principle of common but differentiated responsibilities, which is related to equity in sharing the burden of negative climate effects.

Commitments arising from the Paris Agreement have been deemed by some scholars to be flexible in-between the political and legal spheres. As regards the terms and the legal components of the agreement, much of its content is difficult to fit into the frame of hard law in light of the Vienna Convention on the Law of the Treaties (VCLT). Whereas many provisions in the text do not create any binding obligations, others create a cascade of treaty obligations. The PA presents a combination of hard- and soft-law norms. For instance, a ‘hard-law approach’ is

taken in art 2, which states the objective of limiting emissions; art 1 reflects the commitment to achieve a balance between anthropogenic emissions; and other key obligations are found in art 4. In turn, NDCs imposing specific émissions-réduction commitments are binding upon all the states. However, when it comes to NDCs, particularly of developing states, the language is not equivalent to duties. It conveys the idea of progressive improvement and not backsliding, rather than strongly emphasising states’ obligations. For developed countries the duty is more specific with emissions targets, as established in art 14. In terms of finance and the obligation to provide financial resources for mitigation and adaptation as a primary obligation, the language is of duty. The accompanying decision is more specific. Adaptation is formulated in more pre-emptive terms in art 7. The language of duties is also present in the provisions governing transparency, with the aim of creating an enhanced transparency framework. In sum, the PA laid the groundwork for the development of a robust and comprehensive accountability framework, a unique compromise in which international obligations may progress.

As already indicated, the climate change regime intersects with other regimes, and much attention has been devoted to the interplay with international human rights law.[5] Interaction with other regulatory regimes that complement climate change law should not be overlooked, though. By way of illustration, the International Law Commission (ILC)’s work on international liability for injurious consequences arising out of acts not prohibited by international law contributes the legal principles of due diligence and strict liability as the standards to be applied to adjudicate the CCL cases.

In an alternative (and, sometimes, complementary) view of climate justice, the term ‘climate fairness’ has been proposed. Climate fairness comprises substantive and procedural strands, and is rooted in IEL principles: sustainable development, access rights and intra and inter-generational equity. It reflects the idea of ‘common but differentiated responsibilities’ and emphasises the fact that all states must contribute to emissions reduction.

As regards the characteristics of climate change litigation (CCL), complex jurisdictional issues arise from the nature of climate change, understood as a global, trans-boundary environmental crisis.

As regards the jurisdictional issues that arise, these concern the claimants, the defendants/those responsible for the damages and the main aim and the content of the claims.

First, the claimants cover the affected individuals and groups in both developed and developing countries. In developing states, the claimants are likely to be the most vulnerable people: those with no or fewer prior contributions to global greenhouse gas emissions. In terms of CCL, the main question regards legal standing to lodge climate change-related claims. Affected individuals and groups may bring climate change-related claims to different legal sectors (administrative/public, criminal, civil and human rights law). Legal standing is determined by each set of applicable norms. Non-governmental organisations are also at the forefront of CCL. The case of Urgenda sets an interesting precedent in this regard as it deals with the legal standing of environmental groups to question the fulfilment of the state’s obligations.[6] The admissibility of the petitions depends on the specific context and the norms applicable to the case.

Second, in terms of the defendants/those responsible for the damages, the most contentious issue is the accountability of private persons. Even though in international law States are responsible for curbing greenhouse gas emissions, companies are involved in most pollutant activities. The jurisdictional question at issue concerns the possibility for the judges of those nation-states to exercise extra-territorial jurisdiction over private defendants such as multinational companies, particularly if their main headquarters or seat of business is located in a country outside the court’s jurisdiction. The UN’s Guiding Principles on Business and Human Rights currently represents the main legal instrument calling on companies to respect human rights and engage in environmental protection. The Principles apply to all of the activities of the corporations, covering the impacts of business throughout different operations, wherever they take place.

The case of Greenpeace Southeast Asia unveils the complexities of CCL as it involves various companies coming before the Supreme Court of the Philippines. The contentious issue regarded the Commission’s jurisdiction over the respondents, which were active in different countries. In fairness, the responsibility of businesses to respect human rights should be made effective, in particular when they carry out activities with far-reaching implications beyond the seat of business or when they breach, cause or are involved directly or indirectly in activities that infringe upon human rights and cause environmental harm.

As regards the content of the different claims, CCL has taken place in a variety of areas of law deeply connected to climate change (CC). In fact, the subject matter of the litigation is diverse: there are claims arising in public/administra-tive law, civil law, criminal law and human rights. Another controversial aspect is the possibility of submitting cross-boundary claims from affected individuals or groups who have allegedly suffered environmental damages as a result of the operations of multi-national corporations.[7] The United Kingdom’s jurisdiction offers an interesting case in this regard: in Bodo Community & Ors v Shell Development Company of Nigeria, the UK Supreme Court confirmed its jurisdiction over a Nigerian subsidiary of a UK domiciled parent. In another case, the High Court exercised jurisdiction over Vedanta Resources, a company with its main seat of business in London, concerning a claim brought by Zambian applicants affected by its subsidiary’s copper mining operations.

Clearly, the emerging CCL has brought major jurisdictional challenges as the claims span from complaints against governments to those involving multinational corporations. Challenges posed by climate change litigation are related to its multilevel nature at the subnational, national and transnational levels. Climate justice attempts to meet those challenges.

From a theoretical standpoint, there is the question of the scope of climate justice: whether it is understood along the lines of a narrower idea of justice as representing just legal obligations or embodies climate justice in the widest possible sense that fulfils legitimate expectations aiming at a fair outcome.

Compliance with CC law takes place at different levels. Administrative decisions in accordance with the UNFCCC regime must be adopted by each contracting party. In terms of checks and balances, the responsibility to implement the commitments falls upon the executive, not the courts. Whilst States have taken up the obligation to inform about progress in this regard, the attainment of national commitments needs to be supported by courts. It is their responsibility to monitor the government’s response in light of the Principles of environmental law. Accordingly, courts must ensure compliance by interpreting the law.

Drawing on existing case law, there are different aspects that have particular significance in CCL. As observed in both developing and developed states, no serious challenges are posed to the scientific consensus on CC. Judges must solve the cases according to evidence provided by the IPCC and resolve the cases by weighing the evidence as in Massachusetts v EPA, decided by the US Supreme Court under the Clean Air Act. In the face of unchallenged evidence that global warming causes severe environmental damages, the Supreme Court upheld the EPA’s powers to regulate on emissions reduction. The arguments

Climate change 241 brought up the issues of causation and reversibility of climate change to finally uphold the responsibility of the EPA under the Clean Air Act.

Another issue concerns CCL remedies that courts are granting and the suitability of the court in dealing with CCL. Ultimately, this will (up to a certain extent) depend on the approach to international law (dualist or monist systems). A difference may also be appreciated between the major and minor courts (hierarchy), and the role of the court. Sands has clearly underlined the role of international courts in nurturing these roots in domestic law when addressing the issue of the rule of law and CCL?0

Various Principles that are at the heart of environmental litigation are revealed to be crucial for CCL, such as the Roman law Principle of res communis, applicable to international environmental litigation. The ideas of environmental trusteeship and enforceable norms reverberate in expressions contained in different rulings. For instance, in the Dam Case before the International Court of Justice, Judge Weeramantry delineated the contours of the obligations as follows:

We have entered an era of international law in which international law serves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare ... When we enter the arena of obligations which operate erga omnes rather than inter partes, rules based on individual fairness and procedural compliance may be inadequate ... International environmental law will need to proceed beyond weighing the rights and obligations of parties within a closed compartment of individual State self-interest, unrelated to the global concerns of humanity as a whole.[8]

Among the various climate change cases, the case of Urgenda represents that which is most directly related to climate change. In addition, there are other cases in which climate change is mentioned as the main cause of environmental damage. Interestingly, courts in developing countries have started adjudicating climate change claims, invoking the protection of human rights. In order to uphold human rights in the context of climate change, the Supreme Court of the Philippines referred to basic rights that pre-date any constitutional rights. South Asian courts have referred to the right to live in a healthy environment. In a case concerning air pollution in Delhi as long ago as 1990, the Indian Supreme Court articulated environmental protection around the safeguarding of

fundamental rights. China is an interesting example of how compliance by the executive is complemented by the actions of the courts. Environmental resources adjudication tribunals have upheld jurisdiction over natural resources, emissions reductions in climate change and emissions and energy cases.[9] Pakistan and Bangladesh have taken similar approaches.

Perhaps the best example comes from the High Court of Lahore in the case brought by Mr Leghari, a farmer who questioned climate change effects and climate change policies, and in which the judges agreed that nothing had been done on the ground.50 It was decided that the court should take a direct interest in supervising. The court ordered the establishment of a CC commission. Although there was a national climate change policy and a detailed adaptation and mitigation programme, the court observed a lack of effective implementation. The claimant was representing the main interests.

Courts have the judicial review powers necessary to monitor these decisions, focussing and drawing on previous groundwork in environmental case law concerning water, marine areas and energy. In other words, courts need to adapt legal Principles to address the challenges domestically, which requires the cooperation of all the relevant parties.

In a broader approach to CCL and looking outside the domestic jurisdiction, it is also interesting to see how the previous experiences feed back into other common law jurisdictions, suspending injunctions by courts. Also, other trends make it possible to postulate that arbitration could constitute a viable legal avenue for CCL. For instance, the I BA’s report signposted arbitration amongst the various possible procedural channels to achieve climate justice.

Some focal points of interest stemming from the practice of domestic tribunals can be identified:

Legal standing: A broad legal standing in CCL remains controversial in the present context. Proponents have been given a boost more recently in the case of Juliana v Oregon, which came before the US district court with a claim promoted by Earth Guardians. Claimants challenged the federal government with regard to the reduction of emissions. Amongst other arguments, claimants alluded to the right to a climate system and to the public trust doctrine. The government’s argument of lack of standing was initially rejected.

Evidence and procedure: Courts and judges face the challenge of understanding and relying on climate science, but the lack of full scientific certainty should not be an obstacle for claimants. In this regard, the precautionary

Principle may constitute a helpful tool. It may provide assistance to judges in order to examine petitions when serious environmental risks are posed by climate change, even if the harm is uncertain, as has been established in some comparative law cases.08 The key question is whether the scientific evidence could be conclusive to demonstrate that certain human activities are rapidly impacting on climate events, as observed in previous and pending cases which may have significant implications for climate change litigation.[10] Causation: Closely related to the previous jurisdictional question, there is the necessary link between the lack of compliance and the harmful activities. In Urgenda the judges asserted human-generated climate change as beyond dispute, requesting that the Dutch government strengthen its plans to cut emissions. In the case of climate change, a court may need to assert that the defendant has contributed to the harm in a manner that can be traced back and be quantifiable with reasonable certainty. This is often referred to as the causation hurdle.

Remedies: Claimants affected by climate change may seek remedies that they consider appropriate to protect not only their lives and rights but also their livelihoods and their specific ecosystem. Climate change victims may request a range of remedies from the courts, including declaratory orders, compensatory damages or injunctions. The relief courts may grant depends on the particular circumstances of the case and the norms applicable. In some cases, petitioners may want to request a mitigation action to reduce climate change-related harmful activities, as in the case of heavily pollutant sectors, especially those concerned with the extraction and use of fossil fuels, the main source of greenhouse gas emissions. Another possible measure that may be sought may consist in achieving greater transparency on the part of companies to disclose more information about their activities, enabling a more consistent monitoring of compliance with national and international climate, environmental and human rights laws.

A particularly controversial aspect of climate change litigation relates to the division of powers between the different branches of the government and the system of checks and balances. Essentially, the judiciary must be careful when exercising decision-making powers in climate change issues, bearing in mind that judges are not supposed to intervene in policymaking. In the United States this was precisely the main defendants’ argument in climate change litigation. In some cases, some defendants have successfully argued that climate change litigation

raises non-justiciable political questions.[11] In contrast, in a case recently decided in the US a federal judge took a different view, acknowledging that the complexity of climate change litigation should not impede the submission of claims, particularly in those cases where fundamental rights are at stake.

JUDGMENT OF THE COURT (SIXTH CHAMBER) OF 8 SEPTEMBER 2016

E.ON Kraftwerke GmbH v Bundesrepublik Deutschland

Request for a preliminary ruling from the Verwaltungsgericht Berlin

Reference for a preliminary ruling — Environment — Greenhouse gas emission allowance trading scheme within the European Union — Directive 2003/87/EC — Harmonised free allocation of emission allowances — Decision 20I1/278/EU — Change to the allocation — Article 24(1) — Obligation of the operator of the installation to provide information — Scope

Case C-461/15

  • (•••)
  • 34 In the system of allocation of emission allowances, the Member States, as noted in paragraph 26 above, are to calculate for each year, on the basis of the information collected pursuant to Article 7 of Decision 2011/278, the number of emission allowances allocated free of charge to each incumbent installation on their territory. It is therefore for the competent authorities of the Member States alone to assess, on the basis of the information collected from the operators, whether that information is such as to have an impact on the determination of the number of allowances allocated.
  • 35 Moreover, neither from Directive 2003/87, in particular Article 7, nor from Decision 2011/278 does it appear that the EU legislature intended to allow operators to choose the information they have to submit pursuant to those provisions according to the impact it is thought to have on the allocation of emission allowances.
  • 36 It may be seen from the provisions of Article 24 of that decision that they aim to take account of changes to the operation of installations, in order for the Member States, in a first stage, to determine the number of emission allowances allocated free of charge to each incumbent installation on their territory and for the Commission, in a second stage, to

determine the final total annual amount of emission allowances allocated free of charge.

  • 37 In that context, as recalled in paragraph 27 above, the Member States must ensure that the data collected from the operators and used for allocation purposes is complete and consistent and presents the highest achievable accuracy. It is therefore for the Member States to determine themselves what relevant information for the competent authorities must be collected from the operators.
  • (•••)
  • 40 In the light of the above considerations, the answer to the questions referred for a preliminary ruling is that Article 24(1) of Decision 2011/278 must be interpreted as not precluding a Member State from requiring undertakings which, being subject to the greenhouse gas emission allowance trading obligation within the EU, receive a free allocation of those allowances to provide information relating to all planned or effective changes to the capacity, activity level and operation of an installation, without limiting that requirement solely to information relating to changes that would affect the allocation.

Source: https://eur-lex.europa.eu/legal-content/EN/

TXT/?uri=CELEX%3A62015CJ0461

5 The future of compliance with international climate change law: the way forward

Gaps in compliance with the ICCL and the lack of effectiveness of norms have been made evident. Although compliance mechanisms established by the treaties represent progress they are not sufficient to ensure compliance with duties laid down in different ICCL instruments. In light of the evidence of monitoring, there are several gaps in the implementation of the norms, such as specific implementation rules.

The supplementary Bangkok Climate Change talks made uneven progress on the guidelines that will help States to implement the Paris Climate Change Agreement. Implementation guidelines are necessary to adopt transparent and practical climate action worldwide. By having a look at compliance records, independent monitoring for compliance and an enforcement mechanism for non-compliance are key to ensuring an effective implementation of ICCL. The past decade for ICCL showed a transition into a new model, designed to address challenges imposed by the system faced with several compliance pressures. The Kyoto Compliance Committee took a pragmatic approach by carrying out initial compliance reports as a way to deal with non-compliance and led to the adoption of measures to remedy this.

Decisions adopted address compliance and strive to go beyond regulatory compliance, pushing beyond mere regulatory compliance by offering economic incentives exceeding mere regulatory compliance, thereby attaining a higher degree of effectiveness. Compliance with ICCL, monitored through the Committees and the Secretariat has given rise to a continuous international practice subject to volatile negotiations under the COP. Commitments under the Paris Agreement related to environmental protection and compliance with limits or requirements to curbing the emissions fall within the monitoring powers of the Committee. Some lessons can be learned from the Kyoto Protocol period as it acted as the prelude or preparation for the PA. In this regard, the main aspect on compliance related to less-differentiated obligation on States and the identification of the factors to be relied upon to secure compliance with ICCL.

The conceptual underpinnings and recent developments in climate change litigation indicate the emergence of a de-centralised conflict resolution system which brings several challenges to environmental and climate justice.

The different meanings of compliance and multiple ways and mechanisms of enhancing the fulfilment of obligations under IEL have become evident under the PA. The effectiveness of the PA system is linked to the compliance period and commitments set out in the different instruments. Private sector involvement should also be factored in. A variety of practices may lead to diverging compliance costs across the private sector. Finally, the Paris Agreement poses new questions concerning compliance. It also provides a new framework to analyse national compliance with international environmental treaties. Despite growing pains experienced by the system as a whole, as previously noted, ICCL system represents a case of success to guarantee continuity of compliance.

ENFORCEMENT BRANCH OF THE COMPLIANCE COMMITTEE

CC-2007-l-13/Greece/EB

13 November 2008

Decision under Paragraph 2 of Section X

Party concerned: Greece

In accordance with the Procedures and mechanisms relating to compliance contained in the annex to decision 27/CMP.l and adopted under Article 18 of the Kyoto Protocol and pursuant to the Rules of procedure of the Compliance Committee, the enforcement branch adopts the following decision:

BACKGROUND

1 On 17 April 2008, the enforcement branch adopted the final decision (document CC-2007-l-8/Greece/EB) that gave effect to the consequences contained in paragraph 18 of the preliminary finding of the branch as confirmed by and annexed to the final decision.

According to subparagraph (c) of this paragraph, Greece is not eligible to participate in the mechanisms under Articles 6, 12 and 17 of the Protocol pending the resolution of the question of implementation.

  • 2 On 7 October 2008, the enforcement branch adopted a decision on the review and assessment of the plan submitted by Greece under paragraph 2 of section XV2 (documentCC-2007-l-9/Greece/EB) and requested Greece to submit, as early as possible, a revised plan (document CC-2007-l-10/Greece/EB).
  • 3 Following an in-country review, the annual review report entitled “Report of the individual review of the greenhouse gas inventories of Greece submitted in 2007 and 2008 was published on 17 October 2008 (document FCCC/ARR/2008/GRC; hereinafter referred to as review report).
  • 4 On 20 October 2008, the secretariat forwarded the review report to the Compliance Committee, including the members and alternate members of the enforcement branch, in accordance with paragraph 3 of section VI.
  • 5 On 27 October 2008, Greece submitted a revised plan under paragraph 2 of section XV in response to the request of the enforcement branch referred to in paragraph 2 above (document CC-2007-1-11/ Greece/EB).
  • (•••)

REASONS AND CONCLUSIONS

  • 7 The expert review team (ERT) concluded that the national system of Greece is performing its required functions, as set out in the annex to decision 19/CMP.l. The ERT further concluded that the institutional, legal and procedural arrangements of the new national system are fully operational, and that Greece has the capacity, including relevant arrangements for the technical competence of staff within the national system, to plan, prepare and manage inventories and their timely submission to the secretariat. During the review, no questions of implementation were identified by the ERT.
  • 8 The review report also confirmed that the ERT had in-depth discussion on all aspects of the national system with the relevant staff, and that the transfer of information and data from the institution with previous technical responsibility for the inventory preparation to the new team has been completed.

Source: https://unfccc.int/files/kyoto_protocol/ compliance/enforcement_branch/application/pdf/ cc-2007-l-13_greece_eb.pdf

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9 Biodiversity

  • [1] D. Freestone and C. Streck, Legal Aspects of Carbon trading (Oxfor d University Press 2009). 2 Cathrin Zengerling, Greening International Jurisprudence: Environmental NGOs before International Courts, Tribunals, and Compliance Committees (Brill/Nijhoff 2013). 3 Katowice Rulebook, Adopted at the COP24 held in Katowice, Poland, available at https://cop24. gov.pl/news/news-details/news/the-katowice-rulebook-main-principles-of-the-docuinent/ accessed 1 March 2020.
  • [2] See, for instance, Green Climate Fund, Cancun Agreements (Decisionl/CP.16); In decision 9/ CP. 19 the COP decided to establish the Lima REDD+ Information Hub on the REDD+ Web Platform as a means to publish information on the results of REDD+ activities and corresponding results-based payments and the Work Programme on Results-based Finance to Progress the Full Implementation of the Activities Referred to in Decision 1/CP.16, para. 70. 2 UNFCCC, What Are Market and Non-Market Mechanisms?, available at https://unfccc.int/ topics/what-are-market-and-non-market-mechanisms accessed 1 March 2020.
  • [3] Atieno Mboya, ‘Human Rights and the Global Climate Change Regime’ (2018) 58 Natural Resources Journal^ pp. 51-74. 2 The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005. This international legal framework includes other relevant international agreements, such as the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer. 3 During COP22, held in 2016 in Marrakech, further modifications were introduced to the current legal framework in order to implement the Paris Agreement, such as the adoption of the Partnership for Global Climate Action.
  • [4] Mary Robinson Foundation, Climate Justice Principles, available at http://www.mrfcj.org/ wp-content/uploads/2015/09/Principles-of-Climate-Justice.pdf accessed 1 April 2020. 2 Ibid. 3 Reportedly, the origin of the inclusion of climate justice and mother earth in the PA responds to a request by ALBA countries in charge of drafting the preamble. 4 Anne-Marie Slaughter, ‘The Paris Approach to Global Governance’, Project Syndicate, 28 December 2015, available at https://scholar.princeton.edu/sites/default/files/slaughter/files/ projectsyndicatel2.28.2015.pdf accessed 1 April 2020.
  • [5] Office of the United Nations High Commissioner for Human Rights, Report on the relationship between climate change and human rights (A/HRC/10/61). 2 United Nations, A/CN.4/471 Survey on liability regimes relevant to the topic International liability for injurious consequences arising out of acts not prohibited by international law: Study prepared by the Secretariat, 1995, vol. 11(1), available at https://legal.un.org/ilc/documenta-tion/english/a_cn4_471.pdf accessed 1 March 2020. 3 Jorge E. Vinuales, ‘Balancing Effectiveness and Fairness in the Redesign of the Climate Change Regime’ (2011) 24(1) Leiden Journal of International Law, pp. 223, 251-252. 4 Climate change litigation, tort law approaches from a common law perspective. Climate Change: A New Realm of Tort Litigation, and How to Recover When the Litigation Heats Up, Santa Clara Law Review, Vol. 51, Issue 1 (2011), pp. 265-229, 251 Santa Clara Law Review 265 (2011). Daniel A. Farber, ‘Apportioning Climate Change Costs’ (2008) 26(1) UCLA Journal of Environmental Law and Policy, pp. 21-54.
  • [6] Roger Cox, A Climate Change Litigation Precedent Urgenda Foundation v the State of The Netherlands, CIGI Papers N 79 - November 2015, available at https://www.cigionline.org/sites/ default/files/cigi_paper_79.pdf. 2 United Nations Human Rights Council, Resolution Adopted by the Human Rights Council: 17/4 Human Rights and Transnational Corporations and Other Business Enterprises, Seventeenth Session, July 06. 3 United Nations, Guiding Principles at 2, principles 11-12 at 13-14.
  • [7] Environmental Law Alliance Worldwide, Holding Corporations Accountable for Damaging the Climate (2014). 2 Bodo Community v Shell Petroleum Development Co of Nigeria Ltd [2014] EWHC 1973 (TCC). 3 Lungowe v Vedanta [2016] EWHC 975 (TCC). 4 U.S. Supreme Court, Massachusetts p. Environmental Protection Agency, 549 U.S. 497 (2007).
  • [8] Philippe Sands, ‘Climate Change and the Rule of Law: Adjudicating the Future in International Law’ (2016) 28(1) Journal of Environmental Law, p. 19. 2 International Court of Justice, Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgment, 1. C. J. Reports 1997, para. 118. 3 Urgenda decision (Urgenda Foundation v the State of the Netherlands, C/09/456689/HA ZA 13-1396, Judgment of 24 June 2015). This decision has been appealed by the government. 4 Supreme Court (Philippines), Case International Service for the Acquisition of Agri-Biotech Applications (SAAA), Inc. p. Greenpeace Southeast Asia I-SEA.
  • [9] There are 5,000 around the country. 2 Ashgar Leghari p. Federation of Pakistan, Lahore High Court, Pakistan, 4 September 2015 Case No: W.P. No. 25501/2015. 3 International Bar Association (I BA), Achieving Justice and Human Rights in an Era of Climate Justice (2014). 4 District Court for the District of Oregon, Juliana p. U.S. (2015). For an update on the current situation see https://www.ourchildrenstrust.org/us/federal-lawsuit/.
  • [10] Supreme Court of the Philippines, Case International Service for the Acquisition of Agri-Biotech Applications (SAAA), Inc. v. Greenpeace Southeast Asial-SEA (Philippines). 2 James Thornton and Howard Covington, ‘Climate Change before the Court’, Carbon Brief, available at https://www.carbonbrief.org/guest-post-climate-change-before-the-court. 3 There is an interesting debate regarding the anthropocentric approach to climate change and the granting of specific protection for nature or ecosystems in themselves. Unfortunately, space precludes the possibility of discussing these issues in depth.
  • [11] American Electric Power Co, Inc., et al v Connecticut, 206 F Supp 2d 265 (SDNY, 2005). It must be noted, however, that the argument was upheld by the District Court of New York but was not the main ground for the rejection of the petitioner’s claims. 2 Kelsey Cascadia Rose Juliana, etalvthe United States of America, No. 6:15-cv-01517-TC, 8 April 2016.
 
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