A workshop titled Climate Change Law, Litigation and Governance was held at the University of Warwick on February 18, 2018. The workshop was organised jointly by the Centre for Law, Regulation and Governance of the Global Economy (GLOBE) at Warwick Law School, the School of Law, University of Lincoln, and the Global Network for the Study of Human Rights and the Environment (GNHRE). It was funded by the Legal Research Institute of the Warwick Law School, Warwick’s Global Research Project in Development, GLOBE, and the Lincoln Law School. The participants of the seminar included Dr. Sam Adelman, Dr. Duncan French, Professor Louis Kotzé, Richard Harvey, Sophie Marjanac, Dr. Andrew Boswell, Hendrik Schoukens, Gerry Linton, Tim Crosland, Tom Short, and others.
Dr. Sam Adelman started off by explaining the aims of the workshop. He noted that we are either on the threshold or have passed the threshold where a deluge of climate litigation is now going to emerge and become increasingly widespread, particularly in Australia and the United States, countries which have some of the worst policies on climate change. James Hansen, a prominent climate scientist from NASA, in addition to political mobilisation has called for a wave of lawsuits against governments and fossil fuel companies to fight the mortal threat of global warming. The key is to make the 100 big ‘carbon majors’ which are collectively responsible for more than 70% of greenhouse gases pay for the transition to cleaner energy and the increase in forestation until they are made to pay through carbon fees or taxes. One such case is Juliana v United States which brought a lawsuit against the US Federal Government in 2015 where it was argued that the Federal Government’s failure to curb carbon dioxide emissions has violated the youngest generations constitutional right to life, liberty, and property. Dr. Adelman expressed hope that one of the outcomes of the workshop would be a cross-pollination, getting an understanding of what can be learned from the participants of the workshop, devising tactics and strategies that are most useful in different jurisdictions, and identifying what bodies of law can be used separately or simultaneously. He emphasised on the need for students, activists, academics, and practitioners, to engage the three “I’s”, the need to be innovative, imaginative and insurgent, and furthermore, the need to give the judges and courts the reasons and arguments to do the right thing.
The first speaker of the workshop was Dr. Duncan French from the University of Lincoln. The title of his presentation was ‘What’s Good About Climate Change Litigation? A Subtle Critique’. Dr. French called for a reconciliation of the head and the heart in strategic climate change litigation. After briefly discussing the key purposes of climate change litigation and the role of domestic and international courts in climate change, Dr. French identified ‘climate change litigation’ as the key driver to multiple achievements which included the prevention of project-specific harm, upholding procedural rules, holding authorities and businesses to account, promoting regulatory and policy change, uplifting international ambition, creating a new ‘global consensus’, ensuring a bottom-up approach to national commitments etc. However, despite these achievements, Dr. French pointed out several drawbacks in the current state of affairs. These included the absence of clarity in the normative basis for climate change litigation, the limited geographical spread of case law which meant that there are many countries that are yet to see any kind of ‘climate’, lingering questions over the quality of judgements handed down by Judges who may be dealing with a ‘climate’ case for the first time, the point of initial euphoria of winning a cases in the lower courts only to have the judgment overturned by higher courts etc. Dr. French described Hari M Osofsky’s position that “litigation over climate change has played an important role in shaping multilevel governmental behaviour, which interacts with the countries’ abilities to make and meet international commitments” to be a utopia, and supported Gerrard and Wilensky’s claim that “most countries have experienced little or no climate change litigation” for being more in tune with reality. He asked whether if the commencement of proceedings provided an appearance of normative activity that concealed limitations in the case law. According to Dr. French, ways to improve included courts hearing the right legal arguments, solid science, and the opportunity to hear from experts, as well as the devising of legal strategies that influence upwards to higher courts which are better placed to reflect on the constitutional as well as international normative sway. Acknowledging that climate change litigation is undoubtedly ‘fundamental’, Dr. French argued that there are other ways of achieving the same things which would, in turn, connect the ‘global’ to the ‘local’. These included the Brighton Process relating to the European Court of Human Rights, establishing Courts of Inquiry, UNSC sanctions, learning from private international lawyers about the recognition and enforcement of judgments etc. Dr. French concluded that litigation is part of the toolkit, but its successes and failures must not take the attention away from the political and industrial activity necessary to tackle climate change.
The second speaker was Professor Louis Kotzé, Marie Sklodowska-Curie Ph.D. Research Fellow at the University of Lincoln. The title of his presentation was ‘Climate Litigation in South Africa: Much of a Muchness?’. Professor Kotzé talked about the fairly recent climate change case in South Africa heard before the Pretoria High Court (EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others), which also happens to be only climate change case in the whole of Africa. The judgment read that the initial decision of the environmental authority to grant ‘authorisation’ without the impact assessment was not set aside. The concerned company, was, therefore, still allowed to go ahead with its activities. Additionally, the ruling of the Minister to dismiss the appeal of EarthLife Africa (ELA) was set aside and remitted back for her consideration. The Court ruled that the Minister must consider in re-evaluating the appeal application a climate impact assessment, comments on the report from interested and affected parties, and any additional information necessary to reach a decision. The Minister went on to do carry out these tasks after which she published her reconsideration of the appeal noting at the outset her ‘dissatisfaction with the judgment’ and confirming the original environmental authorisation for the project to go ahead. Professor Kotzé argued that while the case so far has amounted to nothing more than a ‘tick box exercise’ as was correctly claimed by ELA, climate change litigation can potentially have significant impacts on policy and legislation. For instance, after the judgment, the South African Government published GHGs Emissions Reporting Regulations which places the obligation on industries to report emissions. It also announced that new climate change legislation would be introduced in 2018. Climate change litigation also brings to the fore the ‘visibility’ of climate change conflicts, puts climate change on the public record and showcases the crucial role of courts in balancing sustainability considerations and holding the executive accountable. With specific regards to the judgment, Professor Kotzé said that he felt the court could have been more innovative and could have referred the entire decision back and made a new decision.
The third speaker was Richard Harvey of Greenpeace International. In his presentation titled ‘People Power Holding Big Carbon to Account’, Mr. Harvey discussed ways alongside climate change litigation, through which it is possible to challenge the power of investment and the power of finance in climate change hazardous areas. What binds all these approaches is the need to engage people across a wide spectrum. Greenpeace has in the past engaged with ‘people power cases’ challenging ‘big carbon’. This approach is obviously the ‘see you in court’ approach. Other ‘vehicles for challenging’ include non-violent direct actions as well as exposing companies that fail to live up to what they claim to live up to. These actions attack the ‘social licence’ of companies. This can be achieved by looking at what companies say they do themselves. HSBC bank, for instance, has good sustainability principles for loan policies but when it failed to monitor its borrowers, Greenpeace publicly threatened the bank’s “social licence”. After Greenpeace published its Report on Forest Destruction in January 2017, HSBC promptly revised its sustainability principles, adopting ‘No Deforestation, No Peat, No Exploitation’ policy covering future financing of palm oil companies. Richard Harvey’s expressed his ‘most moderate’ demands, which included: 1) the human right to a clean and healthy environment; 2) enforcement of the Paris Agreement at a minimum because despite its flaws it provides a baseline to move forward with climate litigation in an effective way; 3) promoting the rights of those on the front lines of climate change, i.e. indigenous peoples and communities, migrants, children; persons with disabilities, especially through the empowerment of women.
The fourth speaker was Sophie Marjanac, a climate litigation specialist from ClientEarth. Marjanac introduced climate change as a ‘legal problem’. Climate change disrupts traditional legal categories and for this reason, it is challenging, frightening and scary for judges adjudicating climate change cases. The science revolving around climate change is complex and subject to uncertainty which contributes to the nervousness of courts, particularly courts that are not used to dealing with environmental problems and taking highly technical expert scientific evidence. The reality is still that in most jurisdictions, there are no specialist environmental courts. Marjanac stressed the importance of the science of event attribution which is relevant and useful to climate change litigation around the world. This is because of a relatively new scientific method of fingerprinting the human influence in specific extreme weather events. She argued that what is meaningful for people in the way that they experience climate change is impacts in their region. She explained that to be able to say that a specific weather event such as a heat wave or flood was caused by emissions since a particular date, is extremely useful for the purposes of litigation. This is because it particularises harm to a group of individuals who we can hold accountable in a scientific fashion. This kind of science also predicts the future likelihood of similar events. In effect, this changes the duties of ‘legal duty holders’. So public health officials and governments now need to plan ahead. According to Marjanac, with this attribution science, the foreseeability of those future impact changes, and therefore arguably what also changes is the legal duties of care for duty holders. Marjanac argued that there was huge potential to better leverage corporate and financial law to force action from corporate groups and entities. She also stressed on competition law, and energy markets regulation which, in her opinion, do not get enough attention in the discussion on climate change litigation. Referring to the example from the Philippines, Marjanac pointed out that National Human Rights Institutions are now starting to ask how human rights are impacted by climate change and seeing that the two are fundamentally linked and require consideration together and at the same time.
With regards to the attribution of emissions to corporate groups, states or other actors, Dr. Andrew Boswell, former Green Party Councillor in Norfolk, expressed concerns that it was entirely focused on the fossil fuel companies, and not also on livestock companies, IT companies and other sectors. Sophie Marjanac agreed this potentially would be a very interesting study. To Boswell, the real concern was the practice of defendants ‘trading-off’ on the basis that there doesn’t seem to be one clear way of measuring attribution. Andrew Child from the Global Strategic Communications Council (partner of the European Climate Foundation) raised the question of how climate change activists were anticipating and planning for counter legal action from the fossil fuel companies. Richard Harvey acknowledged that this is a very real problem that litigation activists must prepare for and said that the way to address this would be to ‘fight fire with fire’ and in the process ‘minimise our own expose and maximise theirs’.
The fifth speaker was Hendrik Schoukens from Ghent University. The title of his presentation was ‘Climate Change Litigation Strategies Anno 2018: Swot – Analysis In View of Recent Case Law Developments’. Schoukens offered a brief overview of climate change on a global level, its strengths and weaknesses, and finally about a Belgian climate case. He identified the various types of legal actions in climate change litigation which included, ‘claims for compensation – individual companies’, suits holding governments to their climate change commitments – states’, administrative (project-based) review – states/companies’, and ‘actions before human rights bodies – states’. Drawing from the experience of climate change litigation in Belgium, Schoukens emphasised on the need to not lose sight of formalities, i.e. issues relating to language etc. With regards to the broader picture, he pointed out that ‘standing’ is no longer a fundamental hurdle in climate litigation targeting States. Furthermore, if a Government acknowledges that climate change is a real threat it’s not much of an issue in lawsuits directed against States. It may still be a major issue when regards to lawsuits directed against companies. Taking lessons from the Urgenda Climate Case, Schoukens argued that it was a more sensible strategy to use human rights duties as a benchmark in order to interpret the duty of care. Schoukens pointed out that ‘public trust’ doctrine and bonus pater familias principle can provide a useful pathway for climate change litigation. For instance, it was underscored in both the cases of Juliana and Urgenda, the ‘public trust’ doctrine is fundamental and that it cannot be legislated away. Arguing in favour of basing climate change litigation on fundamental rights, it was pointed out that in these cases that when Judges need to balance out effective judicial protection of fundamental human rights with the traditional rigid approach to separation of powers, they might be persuaded to take into account the fundamental rights and let these rights prevail over a more outdated approach to the trias politica.
The fifth speaker was Gerry Linton from the Global Legal Action Network. Linton introduced the story of Portuguese children preparing to file a climate lawsuit before the European Court of Human Rights. The Global Legal Action Network has been coordinating this effort and a crowdfunding drive in support of the case began in September 2017. The specific rights involved in this case include but are not limited to Article 2 (right to life), Article 3 (prohibition on cruel and inhuman treatment), Article 8 (protection of the family or private life) etc. of the European Convention on Human Rights. Identifying that ‘causation’ is one of the main hurdles that climate change cases need to pass, Linton argued that in the case at hand plaintiffs would need to establish that when arguing that there was an absence of a measure, that measure was reasonably available to the State in question. So in essence, had these climate change policies been available and were adopted the harm in question would not have occurred or would have been mitigated. Linton observed that in similar cases, the approach in the US has been to take the ‘science-based’ approach and to avoid politically agreed targets, for instance, the targets established in the Paris Agreement. Linton agreed on principle with this approach but at the same time informed that the European Court of Human Rights tends to keep one eye on other important treaties that are relevant to the issues it is dealing with. This is why when the Portuguese case does eventually reach the European Court of Human Rights, the plaintiffs shall plead that the court accepts the ‘science-based’ approach, and if the court is not minded to accept that approach, that it should at least adopt the ‘Paris’ targets. With regards to the hurdle relating to extra-territorial obligations, the plan is to employ the oft-repeated principle of the need to prevent a vacuum of protection within the territory covered by the European Convention on Human Rights. Finally, on the point of how to address the non-exhaustion of domestic remedies prior to fighting a case before the European Court of Human Rights, the proposed argument is that it is not practically possible for a group of nine Portuguese children between the ages of 5-18 to bring domestic proceedings in up to 47 different countries and progress those proceedings all the way through the various stages of the judicial processes in each country, and for that reason a domestic remedy is not practically available.
The overarching goal is to sue multiple governments for stronger climate action in the wake of two forest fires which took place earlier in 2017. The purpose is to raise awareness about the scale and imminence of the threat that climate change poses in Europe, something which is generally underappreciated. Linton expressed hope that the case would be used as a tool to spread the message of that threat all across Europe.
The sixth speaker was Tim Crosland of Plan B and the title of his presentation was ‘Plan B + 11 Citizens –v- Secretary of State for BEIS’. In it, Crosland offered an ‘anti-theory’ approach which argues that talking about different legal theories and doctrines can obscure a very basic proposition that underpins all these theories which is that it cannot possibly be legal or rational to do something if one knows that by doing it one is jeopardising everything that is worth caring about. Crosland explained that at the heart of the case filed against the Secretary of State for BEIS is that the Climate Change Act 2008 obliges the Secretary to maintain a 2050 Target that gives effect to the UK’s obligations under international law, and which has reasonable prospects of keeping people safe. The plaintiffs, therefore, want two things: 1) a declaration that the Secretary of State has acted unlawfully by failing to revise the 2050 carbon target under the Climate Change Act 2008 (it is argued that this ‘failure’ frustrates the purpose of the Act, is based on an error of law and breaches fundamental human rights); and 2) a mandatory order that the Secretary of State revise the 2050 target in accordance with the purpose of the 2008 Act and the UK’s international law obligations, ensuring, at a minimum, that the 2050 target commits the UK to an equitable contribution to the Paris Agreement objective and that it conforms to the precautionary principle. Crosland, in conclusion, pointed out that the number one concern for young people in the UK was climate change and that they have supported the concerned legal action against the Secretary of State.
The seventh speaker was Tom Short, a Solicitor from the International Team at Leigh Day. Short explained that his work at Leigh Day which specialises in filing tort claims for the purposes of holding corporates and governments to account, acting for claimants from the Global South in cases where they have suffered harm from the UK corporate or UK ‘controlled’ corporate or the UK Government. When it comes to filing damages claims against ‘corporates’ James Thornton of ClientEarth is called the ‘Holy Grail’ of climate litigation, and that is what Leigh Day is ‘ambitiously’ seeking. Short argued that is an effective way of addressing climate change given the enormous contributions to climate-related harms through Greenhouse gas emissions by the corporates. He pointed out that there have been very few suits against ‘corporates’ and that Leigh Day has been thinking about why these cases haven’t happened in the UK yet and if they could happen at all.
During the afternoon session, a lively discussion took place on many of the issues raised in the previous session of the workshop.
When strategizing about planned legal action revolving around the Climate Change Act 2008, Dr Duncan French and Tim Crosland shed light on the need to take into account the experiences gained from the previous case law relating to the Child Poverty Action Group and the difficulties they experienced in the past in terms of judicial review, how far the implementation of a plan is justiciable, and the extent of willingness of courts to hold the government accountable.
On the usefulness of attribution science, a question was raised as to whether we have high levels of confidence within the ‘attribution science community’ to litigate. Sophie Marjanac clarified that this was possible when it comes to certain events that are simulated well by climate models, e.g. heat-related events, some rainfall events. Marjanac explained that the universe of adaptation claims where attribution science is immediately relevant. They may not be the ‘sexy claims’ against the carbon majors, but they are the kind of everyday cases that will arise after extreme weather events. Dr. Sam Adelman extended on this discussion adding that the science on rising sea levels is also ‘increasingly’ clear in terms of measurability. In support, Marjanac pointed out that there are now tools that are available that provide predictions of sea-level rise for every 30, 60, and 90 years, which is every mortgage term. These kinds of information are potentially very relevant to coastal property owners, local councils, etc. It was also observed that although it is very hard to derive enforceable human rights from the applicable rights-based treaties, the increase in ‘science’ on the topic of attribution is likely to open up avenues for human rights litigation.
On the point of investment funds and pensions being a feasible way of pursuing climate litigation, Tom Short explained that the potential litigants in those cases would be claimants whose investments were going to reduce in value and showing that it was a material risk that was ignored in some way by those investing the money. This would likely include pension funds investing its assets in carbon majors or coal-based assets, etc. If not a private damages action, it could be public actions against universities about the reasonableness of investing in fossil fuels. According to Short, the purpose was to reach a stage where it is possible to demonstrate that it’s not reasonable to invest in that kind of assets. In response to Dr. Sam Adelman’s query on the prospects of using company law and fiduciary duties in relation to his, Short expressed a reasonable prospect on some grounds that take into account the broad duties of directors. This could include actions based on the Companies Act 2006 that those ‘duties’ had been breached because the direction taken by the directors is not ‘reasonable’.
Dr. Sam Adelman stressed on the necessity to distinguish between specific events and the measurement of overall emissions when it comes to event attribution science. Adelman raised a number of questions relating to 1) ‘loss and damage’ in the Paris Agreement where developing countries specifically excluded compensation and liability for ‘loss and damage’ and ways to go around this exclusion; 2) clearly discernible differences in litigating against States and litigating against corporations; 3) differences or similarities in bringing cases concerning mitigation and adaptation; 4) inter-generational justice which is central to climate change come into the litigation process; 5) the potentials and limitations of using human rights in light of the reality that none of the major human rights instruments were drafted with climate change in mind; 6) despite the right to a clean, safer and healthy environment in at least 150 Constitutions across the world, why is there a blockage in the using of those rights; 7) the usefulness or lack of usefulness of international environmental law principles with particular reference to effectiveness or ineffectiveness of the ‘precautionary principle’; 8) understanding the principle of common but differentiated responsibility after the Paris Agreement; 9) to what extent is using issues of climate justice worthwhile to climate litigation; and, 10) things we may want to avoid during climate litigation strategies and tactics.
Dr. Duncan French recognised the need to learn ‘humility’ as one of the difficulties for international lawyers when looking at litigation in other domestic jurisdictions and when understanding the context and legal system of that jurisdiction. On the point of whether we are moving towards a global climate change law, French observed that climate change litigation as a whole narrows down an argument in a way that the court can understand or handle, and that is fine as long as we acknowledge that there is a wider international situation that also needs to be resolved. French commented that the approach taken by International Court of Justice in adopting environmental methodology was incremental and reductionist which implies that we haven’t made much progress in terms of courts having a better sense to make a broader ‘eco-system’ approach in terms of devising a methodology to determine the level of compensation. According to French, there is scope in the future for international courts to learn from domestic courts about how to do the methodology of compensation.
On the issue of constitutional rights guaranteeing the right to a safe and healthy environment, participants explained that the reason why litigation based on these rights were largely unsuccessful was that litigants do not always use the appropriate remedies that are available in the concerned domestic legal system. On this point, Richard Harvey expressed the view that to some extent we are all prisoners of the legal forms we are used to using, and that lawyers ‘love precedent’. Harvey argued against this tendency to search for precedents because climate change itself is ‘unprecedented’ in human terms and that it would be wrong to expect the law to provide ready-made solutions for every eventuality. This reality calls for the need to adapt and recognise that politicians can’t see beyond the next elections. On the other hand, Judges are potentially people who can be argued into a position of saying the law isn’t doing its job and we need to find new mechanisms and tools and be more courageous and bold when searching for satisfactory solutions. Participants agreed that it was recommendable to include constitutional rights in climate cases because it allows the claiming of effective judicial protection which is often now the key argument advanced to overcome the traditional approach to standing and also the rigid understanding of trias politica.
Hendrik Schoukens expressed his intrigue about the courts linking the ‘social contract’ theory to climate litigation and observed said that cases like Juliana and to a certain extent Urgenda asked us to reconsider our general principles in view of recent evolutions in terms of the international environmental law. On the point of environmental assessments duty, Schoukens stressed on how vital it is to seek project review in view of climate impacts. He pointed out the relevant EU Directive which was revised in 2014 explicitly reaffirmed the linkages to climate change. While this directive does not explicitly require taking into account global emissions, the focus is at least on climate change so it can be used in local courts. He also spoke about the need to reframe the current approach to EIA in view of the new knowledge that is out there.
Gerry Linton emphasised the need to achieve non-legal impacts and victories outside the courtroom. Speaking in reference to Portuguese case which he acknowledged that having nine children as applicants in a case was going to have a ‘media’ impact that links to the value of human rights in climate change litigation and that it is possible to have as the public face victims, which include, potential future victims.
Tim Crosland addressed the points raised relating to the exclusion of liability and human rights in the Paris Agreement and extending attribution beyond the carbon majors. During COP 21 a deal was brokered where a developed country ‘parties’ agreed to ‘giving’ 1.5 degrees only if it was assured they would not be sued if things went wrong. While there was complete outrage in response to this, the outcome of this was that there is nothing in the Paris Agreement that excludes liability. Crosland described the unique role played by the carbon majors by deliberately delaying regulation and mitigation action. Therefore, the slight risk of broadening the net of attribution is losing what we have really got the carbon majors on, i.e. extraordinary levels of dishonesty.
One advantage of taking a corporation to court in a situation where it was concealing evidence of the harm that could be caused by climate change, is that it would bolster an argument for punitive damages. Although British courts are quite reluctant to award punitive damages, American courts, on the other hand, do award substantial punitive damages. One way of bringing international law instruments into more traditional claims is by pleading a combination of soft law principles with hard law principles (common law negligence claim), UN guiding principles under Section stipulating breach of duty to show what a reasonable company would and should have done.
On the point of directors duties relating to disclosure, Sophie Marjanac that there was a lot of ‘movement’ on disclosure amongst investors and the financial community is tempting to step up on climate change and risk and there is some goodwill that can be harnessed. Marjanac pointed out that when it comes to cases where the disclosure is wrong or misleading, the remedies investors have in the UK, unlike the US is quite limited. She argued that potentially there is scope to look at energy markets regulation and at alliances between environmental lawyers and energy market lawyers representing ‘renewables’ companies because when talking about climate change, what really needs to be done is transform the energy system entirely.
Dr. Sam Adelman raised the issue of the three cases ClientEarth has successfully brought against the Government on air pollution. He asked whether there was a problem with ‘success’ in terms of enforcing the outcome of cases. With regards to the Paris Agreement, Adelman stated that the 1.5-degree figure was firmly rooted in the 2 degrees ‘guardrail’. In terms of pacta sunt servanda and the value of international law, he asked whether if the ‘voluntary’ nature of the Paris Agreement was a problem. With regards to the air pollution cases, Sophie Marjanac stated that litigation has been instrumental in turning air ‘quality’ and pollution into one of the most well-known environmental problems in the UK. On the point of the enforceability of the Paris Agreement, Tim Crosland pointed out that there is more to it than meets the eye because if we took into account all the principles in the agreement, it does narrow the discretion and scope of States, allowing decisions of States to be challenged in domestic courts. Richard Harvey urged everyone to remember that the Paris Agreement was a ‘compromise’, a political deal. He stressed that enforcing ‘nationally determined contributions’ would have to be achieved at the domestic level, not at the international level. According to Harvey, one of the great achievements of Urgenda was the recognition of a principle of a duty of care owed by the Government to the people which need to be relentlessly hammered home.
Participants shared their thoughts on how to frame the ‘climate justice’ question. The need for the conception of climate justice to include not just human justice, but inter and intraspecies justice as well. Dr. Sam Adelman framed the climate justice question as “who owes what to whom and why”. Adelman identified climate change as a huge problem with massive opportunities because climate justice included gender justice, global justice, environmental justice and distributive justice.
The panelists also spoke about the thorny question of whether fossil fuel development is the only or perhaps the best way to ensure economic development across the globe. It was said that there are ways to think about rural development in the Global South that is sustainable and cleaner. Dr. Sam Adelman pointed out that using fossil fuels undermines not just everybody else’s development, but your own development. This is why China acknowledges that its economic growth rate is destroying the possibility of future economic development, which is why they have become a world leader in renewables. Sophie Marjanac pointed out that the technology now exists for us to have clean energy systems. The costs of renewables have significantly dropped over the past few years that they are competitive with traditional energy sources. On the other hand, the legal systems that regulate our energy markets are still in the ‘traditional’ mode. Marjanac argued that there is a huge scope for competition law to play a role to open up and liberalise energy markets for new insurance and renewable competitors. At the international level, there is a great scope to liberalise world trade, yet there are billions being spent internationally by various countries to support fossil fuel industries. Richard Harvey acknowledged that we are constrained by the socio-economic world we find ourselves in. If a resource-rich poor country is expected not to exploit those resources and instead rely on renewable sources of energy, that country must be ‘paid’ to keep non-renewable resources in the ground. It must be a part of the economic incentive the developed world owes to the developing world.
On the potential of using the Equator Principles and other soft law principles in arguments in climate cases, Richard Harvey urged the using of every viable way of shaming the ‘industry’, outing Exxon for lying for decades, and constantly engaging to raise the bar for governments. Harvey pointed out that climate change cases are ‘tactics’ not ‘strategies’ employed to mobilise public opinion and compelling governments and corporations to do what they are bound to do if we are to survive. The only way to get to where climate change activists want to go is by the mobilisation of traditional civil society based activism and the challenge for lawyers is to ensure that climate cases feed into that activism and complement it. Lawsuits as such won’t be the magical ‘silver bullet’, it’s just one part of a wider societal solution and eventual paradigm shift.
With regards to future events of the same kind, a suggestion was made to invite representatives from the oil and coal industries and the larger energy sector and the government in order to engage with them critically around these issues. The workshop concluded noting that it hopefully served as a little contribution to the collective effort to bring about a change in political will and that ‘change’ is done from the bottom up, not top down.
Feature image: Josh Gellers