Category Archives: Climate Change

A Breathtaking View of the Kidron Valley 

View of Kidron from Mar Saba towards Jerusalem

by Richard Laster[1] & Dan Livney[2]

“Jerusalem: A port city, on the edge of eternity”.[3]

When Yehuda Amichai wrote these lines, he did not envision Jerusalem as a “port city” overlooking twenty-five million cubic meters of raw sewage in the Kidron Valley. [4] But that is how the citizens of Jerusalem view the Palestinian Authority, through the prism of a sewage pipe.[5]

For an eastern flowing stream the Kidron (in Arabic Wadi Nar[6], in Hebrew Nahal Kidron), poses political/environmental challenges practically insurmountable.  It begins below the Temple Mount, Haram al Sharif, one of the holiest places in the world, and probably the most contentious; the Kidron drops from an elevation of above 700 meters to minus 450 meters below sea level; it receives around one million cubic meters annually from the holy waters of the Gihon Spring, the fountain head of the Kingdom of David. To this is added 20 million cubic meters of raw sewage from West and East Jerusalem, to be joined by 5 million cubic meters of sewage from Bethlehem and other Palestinian towns and villages. Together, Palestinian and Israeli untreated sewage meander in harmony  through the Judean Desert to the Dead Sea; the most breathtaking example of joint neglect in the Middle East.

This article explains the chronic neglect of the Kidron Valley, and its impending rehabilitation. It is a story reminiscent of the baby in dispute in King Solomon’s day. But it is more reminiscent of Buddy Hackett’s joke about a dispute between a hunter and a farmer over a deer shot by the hunter[7]. Both stories have the same beginning: no one wants to relent; they end differently; one, with a moral of love; the other, revenge is sweeter than possession.[8] In the case of the Kidron, there is as yet no end, but the project approved to rehabilitate the valley promises a new horizon for the Middle East. Caveat: The Middle East is famous for mirages in the desert.

The Causes of the Conflict

The chronic bickering between Israel and the Palestinian Authority is the major cause of harm to the Kidron. The Valley runs through five different jurisdictions- West Jerusalem (within Israel), East Jerusalem (annexed after the 1967 war by Israel)[9], and areas A, B and C created by the Oslo Accords[10].  Area A is under Palestinian civil and security control, Area B is under Palestinian civil control and Israeli security control, and Area C under Israeli civil and security control[11]. These temporary “borders” have been in place since 1995, complicating any system of basin management.

Secondly, outside the cities of Jerusalem and Bethlehem, there is no large, local, vocal population affected by the harm done to the stream to demand its protection[12].  The farmers, who previously used the stream for irrigation of crops and drinking water for their animals, have no clout with the Palestinian Authority, nor with the Israel Civil Administration. And the towns located in the Valley have little sewerage infrastructure, or none. They do not see a problem adding their untreated sewage to the existing outpour.[13] Thirdly, the political situation impedes access to most of the Kidron Valley’s sites, discouraging its use by hikers and tourists. These stakeholders can be vociferous, making change a necessity, but since very few ever travel to a nuisance, their voice has no impact on the political scene, making investment in the tourist infrastructure unproductive.

The untreated sewage poisons the stream and the surrounding soil and groundwater. The aerosols created by the sewage reach the offices and homes of the residents of Ubadia. During the hot summer the stench in some areas is overbearing. In short, without purifying the effluent flowing into the stream there can be few plans for environmental enhancement and local development, especially tourism.  Therefore, it is of primary importance that the first step to rehabilitation of the valley be sewage purification.

Legal Institutions

Both Israel[14] and the Palestinian Authority[15] have comprehensive water laws, enabling administrative control over all aspects of water use and reuse. The Head of the Israel Water Authority can determine the cost, use, reuse, quality, quantity of water in use in the country. Here is a brief description of the powers of the Israel Water Authority, followed by a brief description of the Palestine Water Law.

The Israeli Water Law creates a Director of the Water Authority (the Director) ‘to manage the water affairs of Israel’ (Art. 138). The Director determines who gets water at what quality and quantity. Each water abstractor/ supplier requires an annual license. The Director determines river flows and ground and surface water levels. The Director has the power to require anyone polluting a water source to repair the situation within a reasonable amount of time at the expense of the polluter (Art. 11).

The Director chairs the National Drainage Board and determines rights along drainage channels. He is appointed to a five-year term by the government rather than by any one minister responsible for the Water Law, thus making the Director the real authority in the decision-making process. The Director’s powers provide the flexibility needed in managing Israel’s highly developed water system. The law creates a Water Authority to set policy and advise the Director (Art. 125), establishes a national water supply company (Art. 46), and a Water Court, where claims for unjust supply or other complaints against the Director are filed (Art. 140).

View of the waterfall

The overpowering weight given to the Water Authority has been somewhat tempered by the gradual development of river and drainage authorities, working in the meso, neither central government, nor local. The Israel law for drainage and flood prevention[16] has gradually been expanded to give the drainage authorities power over soil conservation, river rehabilitation and environmental amenities associated to rivers and streams. These authorities are the front-line troops facing geopolitical problems in cross boundary rivers and streams. Where the central government has failed to understand or accommodate the needs of the rivers, they become carriers of sewage and solid waste, not to mention silt. Who is left to address these issues? The drainage authorities. But they have no mandate to deal with geopolitical issues.

In the case of cross boundary environmental problems, the Civil Administration for the Occupied Territories has the mandate to work with the local residents and improve their lot[17]. In the case of sewage generated in the territories, flowing to Israel, one would expect the Civil Administration to step in and create the conditions to remove the nuisance. This would improve the life of the local Palestinians and reduce the sewage burden for cross boundary flows. Yet the Civil Administration seems to be frozen in time; their policy, if there is one, is to do as little as possible, either by looking the other way as the Israeli settlers settle the West Bank, or neglecting the Palestinians, under a policy of benign neglect[18]. To their credit, however, if another authority does act to benefit the environment, the Civil Administration will not go out of their way to hinder the effort. This will be evidenced in the Kidron-Nar Initiative, described below after a description of Palestinian water law.

The Palestinian Water Law, like its Israeli counterpart, declares water to be public property (Article 3). In Palestine, water is managed by a Water Authority, which establishes general water policy and plans, including water allocations for various sectors (Article 8). The Water Authority reports directly to the Cabinet of Ministers (Article 7). The law puts an emphasis on sustainable and integrated management of water resources (Article 2).  This includes power to protect water resources from pollution. A national water company, fully owned by the government, is responsible for the extraction, supply and sale of bulk water to water service providers (Articles 37-39).    A Water Sector Regulatory Council monitors water services and prices (Article 24). Regional Water Utilities take the place of local authorities and other institutions in providing water and wastewater services to consumers, while Water Users Associations supply irrigation water at the local level (Articles 45-49).

Under the Oslo Accords, Israel and the Palestinian Authority agreed to implement several principles of water management in the West Bank, including sustainable use, the prevention of harm, and flexible utilization to assure the ability to adhere to these principles.[19]  The parties also created a Joint Water Committee (JWC), for the purpose of coordinating water and sewage-related issues in the West Bank including common management of water sources and their protection. But when the JWC agrees to meet[20], the focus is generally on water supply projects. Under normal circumstances, a stakeholder meeting for the Kidron/Wadi Nar would include national, regional and local government representatives, NGOs, the academic public and all concerned parties whose lives are affected or connected to the Kidron/Wadi Nar. As important as it is, sewage flow is only one element requiring action under a comprehensive plan for multi-uses of the Valley. In fact, to this day there has never been a meeting of even the local government representatives in the Kidron Valley, i.e. the mayors of Jerusalem, Bethlehem and Ubadia.[21]

Research and plans for the Kidron/Nar sewage has increased the GNP of Israel and Palestine, but has done little to enhance the quality of the stream. There have been numerous research groups, studies, plans and meetings plus several real attempts to build a purification plant on the river.[22] None of these efforts bore fruit. In fact, if every dollar invested in studying the problem would have been invested in a purification plant, there would be enough to build the plant and maintain it for years. But the conflict has stymied every attempt at cooperation.

In 2005 a group of Palestinian, German and Israeli scholars joined together to compare the Elbe River with the Kidron River, both separated by political borders at one time.[23] The objective was to see what could be learned about integrated basin management in a transboundary basin cut up by borders and acrimony on both sides of the border. Some 80 stakeholders on both sides of the Kidron basin were interviewed, revealing that there could be agreements on environmental issues but no one had the fortitude to begin the process.  Even among the researchers there was no consensus for basin management of a divided river. Yet, from the interviews with the stakeholders could be heard their true hope for cooperation in the joint basin, provided that the “other side” recognized their legitimate rights to water in the basin. All it took then was to convince the Dead Sea Drainage and River Authority to sponsor a master plan process, similar to the one in the Yarqon River, but this time, to go beyond the green line and bring on board Palestinian stakeholders. This brings us to the theme of this article, the geopolitics of the Kidron/Nar valley.

Creating the Steering Committee[24]

The Yarqon River master plan provided a blueprint for success[25]. Stage one was the creation of a steering committee of as many key stakeholders as needed to get backing and oversight for the project. Discussions that included the Dead Sea Drainage and River Authority and the City of Jerusalem resulted in the formation of a Kidron Stream steering committee. Members came from the City of Jerusalem, the largest city in the Kidron basin, and the Dead Sea Drainage and River Authority, the only statutory body dedicated to the renovation of the Kidron Stream. Joining the committee were the Peres Center for Peace, well known for its work with Palestinians and Israelis, the Milken Center, a think tank from California with a record of economic analysis of environmental solutions and the Jerusalem Institute for Policy Research, a local think tank which had already studied the upper Kidron and was capable of holding sessions which would be neutral ground for Palestinians and Israelis.[26] The team approached the then Head of the Palestinian Water Authority, Dr. Shaddad Attili,[27] and asked that he join the steering committee.  But he argued that the Kidron basin was too “politicized” with Jerusalem at the headwater for an objective master plan. He asked to work on any other basin for a joint project.  But the Kidron was the key to understanding basins in conflict, and success in the Kidron would pave the way for cooperation in other basins.

For four years, the basin team spent hours studying the basin with their eyes, ears, legs and brains. Maps were prepared of the basin from a geographical standpoint, economic, ecological, demographic, political, legal and hydrological. All the information was compiled into a report submitted to numerous stakeholders in Israel and the Palestinian Authority. It was even “approved” by the Jerusalem Municipality in a formal meeting of the City Council and local NGO’s and citizens. On the Palestinian side, it was informally approved by the Palestinian Water Authority, and the towns adjacent to Jerusalem, Ubadia, Suwahra, Abu Dis, Beit Sahur and Sheik Said. The towns appointed the mayor of Ubadia, Suleiman El Assa, to represent their interests and he joined the steering committee and participated in its discussions. In fact, the Mayor was a key member of the team. He allowed the team access to the town’s planning and engineering team, who also gave advice during the process, which continues today.

Aerial view of Kidron – Jerusalem

More than any politician we met during the planning process, Suleiman El Assa embodied the soul of the Kidron. He understood better than anyone the potential of the Valley for human and environmental dignity and worked tirelessly to achieve this goal. With the limited resources at his disposal, he wrought major changes in his town, and he was unafraid to criticize the Palestinian Authority for its apathy to the plight of his citizens living alongside a sewage conduit, in one of the holiest basins in the world. It was Suleiman who came up with the idea of a “tent meeting” on the River to serve as a starting point for joint cooperation discussed in the next section on sewerage treatment.

The Palestinian Water Authority refused to officially join the steering committee, but the Master Plan team met with the Dr. Attilli and the staff of the PWA, showing them the compiled data and plans for sewage treatment. In fact, they were as much involved in the process as the named steering committee, without being a member of the committee. And in time, more and more Palestinians joined the process as stakeholders or as researchers. Some of them warned us in advance that they would not formally join the basin team, but they all helped with advice, introductions to stakeholders and they participated in stakeholder meetings and workshops held during the process. The same is true of numerous Israeli stakeholders, especially the statutory authorities, who attended stakeholder meetings but refused to formally join the effort. The information we gleaned, the meetings we held and the numerous phone calls and discussions enabled us to move the process forward to implementation.

Implementation of the Plan: Sewage Treatment

The normal approach to sewage purification is to purify it close to source and with little use of energy in transport. This would mean that designating a location for a joint Jerusalem and Bethlehem wastewater treatment plant should be located near both locations. Such an attempt was made by the German government in 1994[28], but as the contracts were being prepared for the joint plant, the Palestinian Authority rejected the proposal. Their argument was that building a joint Israeli Palestinian plant in the West Bank to treat Jerusalem sewage was tantamount to the Palestinian Authority recognizing Israel sovereignty over Jerusalem. [29]

A second attempt was prompted by the Palestinian Water Authority in 2009.[30] Their idea was to have a pipe take the sewage to the Horcania basin and there treat the sewage in a plant to be built by the Palestinians. This the Israelis rejected; they did not want Palestinians to treat Jerusalem’ sewage. Both sides having rejected the logical solution, the Israelis embarked on several different plans to treat Jerusalem sewage. One plan, supported by the District office of the Ministry of Environment, was taken from Jules Verne’s sketchbook. It designed a pumping station in the valley facing the old City of Jerusalem underneath a monastery and a cemetery. Raw sewage was to be pumped to an elevation of over 200 meters, to take the sewage out of the Kidron Valley and pump it west to be treated in an existing Israeli purification plant in the Soreq Stream.

As the plans became more numerous and farfetched, the master plan basin team worked quietly with both Palestinians and Israelis to design a system amenable to both side What brought about the change?  The Coordinator of Government Activities in the Territories (COGAT), General Mordechai. General Mordechai sent an aid to meet the coordinators of the basin plan to better understand the idea of the removal of sewage in the Kidron Valley. The aid visited the area and requested that there be held a meeting of all the parties at a site visit, coordinated by the Civil Administration for the Occupied Territories.  This site visit, attended by over thirty government employees from different ministries, the Jerusalem Water Company and the Civil Administration brought home the stench and neglect under Israel control. More important, the government employees, so used to hearing that there is no such thing as a Palestinian partner, met the Mayor of Ubadia, Suleiman Al Assa. Suleiman, spoke with passion about the effect of the polluted stream on his constituents, but, more important, he broke protocol. He spoke in spite of the Palestinian Authority ban on Palestinian politicians “cooperating with the Israel government.” Everyone in the audience understood that he put his life on the line to remove an environmental health hazard.

To cap this performance, the financial advisor to the Israel Water Company, made an even more impressive performance when he put the numbers before the audience. He showed that the only feasible way to remove, treat and reuse the sewage in the Kidron Valley was to act in accordance with the Master Plan concept.  It is interesting how money brings common sense back into the equation. With the consensus achieved, General Mordechai reached an agreement with the Israel Water Authority and the Jerusalem Water Company regarding financing the project and then he met with the Prime Minister of the Palestinian Authority to sign a memorandum of understanding to move the project forward.

Many cups of coffee later, the plan developed by the Basin Committee, taking sewage from Jerusalem and the surrounding Palestinian towns, treating the sewage and piping it to where it can be used for agriculture was adopted by the Joint Water Committee created under the Oslo Accords. At this writing, the parties are actually designing the pipes and treatment plants to remove, treat and reuse the sewage in the Valley. Funding for the project will come from the Jerusalem Water Company and other sources. Some, if not all of the treated waste water will irrigate the date farms of Jericho.

Even if the sewerage system is built, the town of Ubadia, in the middle of the Kidron/Nar basin will not benefit from it. Ubadia sits on the edge of the Judean Desert, east of Jerusalem and Bethlehem, perched above the Kidron stream. The town numbers approximately 12,000 inhabitants, and covers an area of 45,000 dunams (11,250 acres). The homes are connected to a municipal water system, but not to a sewage collection and treatment system. The sewage flows onto  land adjoining homes and eventually reaches the Kidron stream, or worse, the Marsaba monastery springs[31]. Two pilot treatment systems have been installed to test whether this method can prevent water pollution and allow safe reuse of the treated sewage. One system is installed in a school yard and serves a thousand pupils[32]. It will be used by the students for their scientific work in testing water quality and the treated sewage for toilet flushing. The system will serve as a model for further wetland purification plants, using off the grid technology now being promoted in Europe. In addition, a crowd funding program has been launched to build another wetland in a lower portion of Ubadia in order to purify the sewage reaching the Marsaba monastery.

Implementation of the Plan:  Science Hub and Environmental Education Programs

The attention given to the Kidron Basin gave rise to a groundswell of educational activities.  These projects developed from local patriotism, not towards a government or political party, but patriotism for their geographical and environmental location. Previous to the Master Plan project, most people did not even realize they lived in or around a basin, or what a basin even was. With financial assistance and professional guidance from the master plan team, Schools installed rainwater harvesting systems as an educational tool for teaching about the water cycle and its importance.  Local projects and initiatives were established, empowering people, especially women, to help create a more environmentally friendly physical infrastructure and increase people’s abilities to make improvements themselves[33]. The projects included community gardens, women as environmental watchdogs, teacher training program in environmental education, advanced science education for girls, and more.

Implementation of the Plan:  Long Term Socio-economic and Ecosystem Research Platform 

The Kidron Valley was selected as the site for establishing the first LTSER (Long Term Socio-economic and Ecosystem Research) site within the Palestinian Authority[34]. This project builds upon the general knowledge generated by the Kidron Master Plan, and focuses on the socio-ecological aspects of the Kidron/Nar basin by using the LTSER approach. The main, organizing intellectual aim of LTSER programs is to understand patterns and processes of socio-ecological systems driven by natural and anthropogenic forces and their effect on ecosystem services. The LTSER platform provides scientific and practical knowledge of the long-term dynamics of the interaction between society and nature, enabling scientists and policy makers to address sustainability concerns effectively.

Implementation of the Plan:  A Bird Observatory in the Kidron[35]

As an adjunct to the wetland, Dr. Anton Khalilah, native of Bethlehem with a Ph.D. from Ben- Gurion University is conducting a survey of the flora and fauna of the site. He will identify species, record them, map their location, and photograph them. This will serve as a monitoring site for migratory soaring birds (MSBs). The site will be used during the autumn and/or spring migration season to document MSBs during their migration. This will include, species, numbers and time of the year. This observatory site will be used for research, education and as an ecotourism attraction point. Dr. Khalilah, together with Dr. Hassan will use the purified effluent from the wetland to create a small pond. A bird blind will be built at one side of the pool which will serve as an observation point to watch birds and other wild animals that come to use the water.

Coming full circle

View south to tombs

Probably the most important lesson learned from work in basin management is that, not only “where there is a will, there is a way”, but the parallel is just as accurate: “where there is a way there is a will”. In a conflict situation having willpower is not enough. There needs to be a platform for the release of positive energy. A basin viewpoint can provide that platform, since most conflicts surround ownership and territory.  One small example will suffice.

East Jerusalem was annexed by Israel after the Six-Day War but the annexation was neither recognized by the United Nations nor by any foreign country. As a result, schools in East Jerusalem may choose an Israeli curriculum or one proposed by the Palestinian Authority. During the master plan process, the master plan team worked on numerous initiatives to improve the life of the residents in the Basin. One such initiative was introducing an environmental curriculum into Palestinian schools.

This was done by hiring and training staff to teach the pupils about hydrologic basins using the Kidron as an example. Within a few months some 20 schools were teaching subjects such as environmental quality, water pollution, hydrology and basin management. Some then progressed to saving water in schools, rainwater harvesting, school gardens, greenhouses, community gardens and school trips to the Kidron Valley.  One school even entered its students into an international water competition and took home a prize. The pride that this engendered, the dignity resulting from this process forced the parents and teachers to consider changing the curriculum. They looked outside the school window into a large world of achievement.

Yet had there not been a basin study and community outreach, there would have not been the willingness to understand that there is a world outside the local conflict. The Master Plan process taught the principals and teachers that they were part of a community, communities are part of a hydrological basin and basin problems of integrated water use and reuse are world issues. And some of the schools were able to change their curriculum in order to give a better future for their pupils.

Climate Change and the geopolitics of water

“Humankind today faces three common problems that make a mockery of all national borders, and that can only be solved through global cooperation. These are nuclear war, climate change and technological disruption.”[36]

“For several generations, the world has been governed by what today we call “the global liberal order”. Behind these lofty words is the idea that all humans share some core experiences, values and interests, and that no human group is inherently superior to all others. Cooperation is therefore more sensible than conflict. All humans should work together to protect their common values and advance their common interests. And the best way to foster such cooperation is to ease the movement of ideas, goods, money and people across the globe.”[37]

In 2011 the Ministry of Environment published a policy paper on Israel’s response to climate change[38]. This paper is now being reviewed and updated. The paper combines carrot and stick measures, but the overall picture presented is an isolationist one- that Israel has to take care of itself. Criticism has been levelled at the Ministry for not taking a comprehensive stand and including its neighbors in a policy paper on climate change. The Ministry should take heed of the above quote, go beyond local patriotism and reach for a geo- political solution to the water problems in the neighborhood.

Hope springs eternal as the Gihon springs, which feed the Kidron Valley, and it changes paradigms, some entrenched for years. It created a paradigm change in the management of surface water in Israel in 1995, and it is about to break an impasse in sewage purification and river rehabilitation in the Kidron Valley, that has been waiting for a saviour for fifty years. As changes take place, dignity gains adherents, and the environment is the first to feel the change.  Dignity cannot be bought and sold in the marketplace but the search for environmental dignity brings rewards in human and environmental resources that cannot be measured.

Mar Saba today

The search for environmental dignity is a natural outgrowth of the development of rights. Scholars have always equated the Declaration of Independence and the Declaration of the Rights of Man as necessary building blocks on the edifice of democracy. Without these rights, democracy could not exist. Government of the people, by the people and for the people does not in itself protect a person. With similar logic, people have argued that the cornerstone to free trade is the democratic model of government. Without freeing the individual to pursue his/her happiness, trade could exist between governments, but not individuals. Making the pursuit of happiness a basic right, does not curtail a person’s natural affinity to enrich his possessions, knowledge, prestige and power, all forms of human happiness.

We also know that happiness, or well-being, is a natural pursuit; it knows no boundaries and serves a function in human development. Scholars have been studying human well- being for over half a century and have developed theories to delineate its parameters: Subsistence, protection, affection, understanding, participation, leisure, creation, identity, and freedom.[39]  At the same time, other scholars have developed criteria for ecological well-being. Some forty countries are working together to map the biological health of the world, also called ecological integrity.[40]   This program, entitled Long Term Social and Ecological Research, has scholars working under the same scientific parameters to understand the health of the environment.[41] These parameters include the quality of the soil, lower forms of plankton and flora in built up areas and preserved areas. There is a difference, however, between ecological integrity and environmental dignity.

Environmental dignity first appeared in the Stockholm Declaration: “Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself.”[42]  The Stockholm Declaration was an attempt to equate environmental rights with human rights. It tried to balance man’s search for happiness with the environment’s equal right to equanimity. The Bruntdland Report, “Respect and care for the community of life,” further refined this doctrine with the theory of sustainability; allowing man to develop happiness in a sustainable fashion, i.e. not at the expense of future generations.[43]

 

Environmental dignity does not flourish in conflict; neither human nor environmental. So, what is one to do who believes in human and environmental rights, but finds himself living and working in a conflict situation?[44] How does one apply his skills as an attorney resolving conflicts to an arena, in which he has no official part? Does one leave the scene for others, or look for avenues to apply his skill to achieve a modicum of human and environmental well -being? The authors have chosen the latter and have changed the goal with one more in line with legal thought: from well-being to human and environmental dignity. This article documents our trip along the Kidron/Nar River in search of environmental and human dignity within the Palestinian Israeli conflict.

Basin Management

The trip actually started years ago, with Bruce Ackerman and James Sawyer’s sentinel article, The Uncertain Search for Environmental Policy: Scientific Factfinding and Rational Decisonmaking along the Delaware River.[45] Ackerman and Sawyer demolished theoretical approaches to river remediation, and pointed lawyers to a role model, representative river authorities. Following their advice, we have represented river authorities for much of our professional careers,[46] trying as best we could to be skeptical of engineering approaches and simple solutions. In time, we learned that the only way to achieve a modicum of river remediation is to adopt their three tenets: “An agency embarking upon a water pollution program must, in one way or another, resolve three basic issues. First, it must determine the level of water quality that is desired. Second, it must determine the amount of pollutant that must be removed from the stream in order to achieve the water quality standard selected. Third, the agency must determine the way in which the burden of cleaning up the river to the desired level will be allocated among the polluters… “[47] To these three tenets, one should add: The governing body should have an independent budget and an enforcement arm. [48]

The key to all this, however, is to use a working model, not a theoretical one.[49] Therefore, we embarked upon a hair-raising adventure in the pursuit of environmental dignity: The Kidron/Nar Master Plan process. Because of its vision and the atmosphere created, the master plan process melted the intransigent approaches of the conflicting parties, and enabled them to reach a solution for removal and treatment of sewage in the Valley; the use of the basin management approach to a cross boundary basin, scarred by conflict, is a brilliant platform for creating an atmosphere of cooperation.  It enhances the exchange of ideas and information, it furthers discussion and reduces tension between conflicting parties; it prepares a level playing field for a joint basin management forum; it encourages democratic processes, and, it adopts the one rule of international water law universally accepted: reasonable and equitable use of water. In short, it lays the basis for human and environmental dignity by treating all players as equal and all with equal rights to the basin and its resources. At the same time, it raises the rights of the natural environment to protect it for future generations, thereby increasing environmental dignity. It universalizes the basin for all mankind, and encourages others to do similar work. And eventually it will lead to basin rehabilitation.

 

[1] Professor of Environmental Law & Policy, Hebrew University

[2] Associate, Laster & Gouldman Law Offices, Jerusalem

[3] This quote from the poem “Jerusalem is a Port City” (1968) by Israeli poet Yehuda Amichai is inscribed on a stone to his memory in the Yehuda Amichai quarter of Jerusalem, in Talbiah.

[4] There is no other place on earth holy to the three monotheistic religions as is Jerusalem and the Kidron Valley.

[5] It is interesting to note that Herman Melville, on his short trip to Jerusalem used the same analogy for the monks living in the Marsaba monastery, on the brink of the Kidron:

“But that is hard to think.

Seemly the port, gentle the cheer

Of friars which lodge upon this brink

Of Kedron, and do worship here

With rites august, and keep the creed.”

[6] The word Nar means fire and it refers to the fact that the Kidron is the Valley between the Mount of Olives and the Temple Mount, or Haram al Sharif. When the Messiah comes he will begin raising the dead on Mount of Olives. Those rising will then have to cross the narrow bridge from the Mount of Olives to the Temple Mount, but only the righteous will be able to cross; the sinners will fall in Wadi Nar.

[7] A hunter shoots a deer and is pulling it back to his truck. A farmer passes by and says, “Hey you shot that deer on my property. That makes that deer mine.”

The hunter says, “No way, I tracked it, I shot it, it’s mine.”

The farmer says, “Ok Ok…we’ll settle this the old way.”

“The old way?”

“Yes. We’ll take turns kicking each other in the groin and the first guy who can’t take it anymore loses. The winner gets the deer.”

The hunter thinks about this and he says, “Ok, let’s do it.”

The farmer says, “Ok, let me go first.” He takes a big wind up and just nails the hunter right in the groin with his big dirty farmer boots.

The hunter doubles over in pain, huffing and puffing for a few minutes. He finally gets up, still panting and says, “Ok Ok…I’m still in…my turn.”

The farmer says, “Nah, you can keep the deer.”

[8] There is also an African proverb that when elephants (or men) fight, it is the grass that gets trampled.

[9] Israel’s legislature, the Knesset, expanded the borders of Jerusalem by amending the Law and Administration Ordinance, 1967 21 L.S.I 75, Article 11B, and   the Cities Ordinance (Amendment No.6), 1967This was further entrenched by the passing of The Basic Law: Jerusalem the Capital of Israel, 1980 34 L.S.I. 209. The law declared a “United Jerusalem” to be the capital of Israel.

[10] Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, September 28, 1995, Israel-PLO .

[11] In accordance with international law, existing Jordanian and Ottoman laws were not cancelled in the West Bank after the Israeli army occupied the area. Israeli law confirmed this, declaring that the law that existed in the region on June 7, 1967 will remain valid, with changes to be made as needed by the Israeli military government in the region.  See:  Manifest Concerning Taking Control by the IDF (Manifest Number One) 1967; Manifest Concerning Governance and Legal Procedure (Judea and Samaria) (Number 2), 1967. Both became valid on June 7, 1967.

[12] Outside of Bethlehem (which contributes sewage to the Kidron but is located outside the Basin) and Jerusalem, the largest town in the Kidron Basin is Ubadia, with a population of 12,000.

[13] Alice’s Restaurant all over again.

[14] Water Law, 1959

[15] Decree No. (14) For the Year 2014 Relating to the Water Law.

[16] Drainage and Flood Control Law, 1957, 12 L.S.I 5.

[17] Israel Military Order No. 947 Concerning the Establishment of a Civilian Administration from 1981.

[18] Both authors have spent hours working with, studying and interviewing the civil administration staff for education, water, environment, archeology and planning. Richard Laster is also a member of the civil administration’s committee on drainage and flood control.

[19] Oslo II Accords, Article 40 of Annex III.

[20] After a seven year hiatus, the JWC renewed its meetings in May of 2017.

[21] The authors have met with all three who share a hope for purifying the sewage.

[22] Some examples: Almog, R. (2006) Hebrew University Jerusalem. Feitelson, E. and Abdul-Jaber, Q. H. (1997) Prospects for Israeli-Palestinian cooperation in wastewater treatment and re-use in the Jerusalem region, The Jerusalem Institute for Israel Studies, Palestinian Hydrology Group, Jerusalem. FoEME (2005) Pollution of the Mountain Aquifer by sewage, Friends of the Earth Middle East, Tel Aviv. Mutlak, N., Khateeb, N. and Klawitter, S. (2007) Macro-economic setting and water supply, consumption and waste water disposal practise in the Kidron Valley/Wadi Nar, Discussion paper, CollectiveWater project, Berlin, Jerusalem. IHE Delft: The importance of off the grid technology for removal and treatment of sewage in the Kidron Valley, 2108.

[23] The Applicability of the Governance Scheme for the Elbe Catchment to the Kidron Valley/Wadi Nar, From Conflict to Collective Action: Institutional Change, R Laster, D Livney – 2007 – BMBF Germany and Israel Ministry of Science.

[24] Professor Richard Laster, one of the authors of this article, served as the Kidron steering committee chairman and Dan Livney provided advice on the legal and administrative issues of the master plan.

[25] The Master Plan can be found on the Yarqon River Authority website (in Hebrew) https://www.yarqon.org.il/he/#

[26] http://en.jerusaleminstitute.org.il/

[27] Presently the head of the water negotiating team for the Palestinian Authority

[28] GTZ (1998) Final design and preparation of tender documents for Bethlehem, Beit Sahour waste water collection and storm water drainage system, Gesellschaft für Technische Zusammenarbeit (GTZ) mbH, Eschborn.

[29] Here geopolitics trumped good will and a donation of 45 million Deutsch Marks.

[30] Israeli-Palestinian Joint Water Committee, Application 294, September 25, 2009

[31] The Mar Saba monastery, built into the Kidron cliff walls,  was established in the year 483, and is considered one of the oldest inhabited monasteries in the world.

[32]   Kidron Valley/Wadi Al Nar Rehabilitation Project – SIPProjects

www.sipprojects.org/projects/kidron nar-basin/

[33] https://en.urbanclinic.huji.ac.il/book/december-2017-kidron-valley

[34] For a description of the Wadi Nar LTSER station, see: https://deims.org/85b2c11a-8d09-4582-8048-195f3519c41c. The LTSER site was set up and run by Dr. Jawad Hassan of Al Quds University.

[35] The bird observatory and bio diversity project is run by Dr. Anton Khalilah.

[36] Yuval Noah Harrari, the Economist, September 26, 2018.

[37] Ibid. See also Universal Declaration of Human Rights, Article I: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

[38] State of Israel- Ministry of Environmental Protection, Climate Change Policy in Israel, November 2011.

[39] Matrix of fundamental human needs (Max-Neef, 1989).

[40] Personal communication, Prof. Moshe Shachck, Ben Gurion University, Dr. Jawad Shoquir, Al-Quds University. These two gentlemen created a Palestinian LTER site in the Kidron Valley.

[41] Personal communication, Dr. Michael Mirtl, President, LTER International, 2015.

[42] Declaration of the United Nations Conference on the Human Environment, Stockholm, June 1972.

[43] “Our Common Future” (The Brundtland Report), Caring for the Earth: A Strategy for Sustainable Living, 1991, IUCN p. 9

[44] There is nothing more exhilarating than taking on a project which has no chance of success.

[45]  120 U. Pa. L. Rev. 421, 1972

[46] We serve as the legal advisors to the Yarqon River Authority, the Kishon Drainagae/River Authority, the Arava Drainage/River Authority, the Shiqma-Besor Drainage/River Authority and are of counsel to the Galil Maarvi  Drainage/River Authority.

[47]  120 U. Pa. L. Rev. 421, 1972

[48]  Laster, R., Livney, D., Holender, D. “The Sound of One Hand Clapping: Limitations to Integrated Resources Water Management in the Dead Sea Basin.” Pace Environmental Law Review, Vol. 22 p. 123 (2005),

Laster, R., Livney, D., Gat, J. “Water Flowing Under the Law. ‘  Food Security Under Water Scarcity in the Middle East: Problems and Solutions (Hamdy and Monti, eds.) (2004).

[49]  Laster, R., Livney, D. “The Applicability of the Governance Scheme for the Elbe Catchment to the Kidron Valley/Wadi Nar”, prepared as part of the joint German-Israeli-Palestinian project “From Conflict to Collective Action: Institutional Change and Management Options to Govern Transboundary Watercourses”, BMBF/Israel Ministry of Science, 2008.  Also see, Metzenbaum, Shelley. “Measurement that Matters: Cleaning Up the Charles River.” Regulatory Policy Program Working Paper RPP-2001-05. Cambridge, MA: Center for Business and Government, John F. Kennedy School of Government, Harvard University.

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Climate Change in the Anthropocene

GNHRE Europe held a workshop on Climate Justice in the Anthropocene on 2-3 May 2019 at the International Institute for the Sociology of Law in Oñati, Spain. The workshop was conceived, initiated and coordinated by Sam Adelman and Luis Kotze, and attended by several GNHRE members.

Over two days, participants from all over the world engaged in in-depth debate over the contours of climate justice in the Anthropocene, the limits of current approaches and possible ways forward, especially in light of the IPCC report Global Warming of 1.5oC.

The discussion touched on the criteria for climate justice; who owes what to whom, in what form and why; the extent to which Holocene categories of justice – distributive, environmental, gender, global, reparative – are relevant in the Anthropocene; and how climate justice relates to vulnerability and resilience.

In a highly interactive setting, the workshop participants discussed fourteen draft papers on the theoretical underpinning of climate justice, earth system governance, and climate change litigation. Selected papers from the workshop will be published in the prestigious publication series of the International Institute for the Sociology of Law.

By Annalisa Savaresi

Feature image: Josh Gellers

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Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren

This blog post was originally published on the Tilburg University Environmental Law Blog

Today, the Higher Court in the Dutch city of The Hague rendered its judgement in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Higher Court today rejected all objections by the State in firm and straightforward language. The Higher Court stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention of Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Higher Court, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the COconcentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Higher Court briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44)

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers, on the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved.

In remarkably clear language, the Higher Court rejects all objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Higher Court invokes the precautionary principle. The Higher Court stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have proactive climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Higher Court argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case.” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more as within the EU, climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Higher Court considers it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Higher Court simply rejects this by referring to the special position of the Netherlands as a rich, developed state, that has gained much of its wealth through extensive use of fossil fuels. Quite humorful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Higher court!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Higher Court simply refers to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Higher Court does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

Today the Dutch Higher Court followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

Feature image: Dina Townsend

 

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Blog: Climate Change Law, Litigation and Governance

By Dr. Sam Adelman with assistance from Sanjeeb Hossain

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 GellersFacebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

Climate Change and Indigenous Peoples: The Search for Legal Remedies (eds. R. S. Abate and E. A. Kronk)

Editors

Randall S. Abate and Elizabeth Ann Kronk

Keywords

environment, climate change, environmental law, law – academic, environmental law, human rights, law and development, politics and public policy, human rights, Asia, Kenya, Arctic, South America, Pacific Island Nations, Australia, New Zealand, Africa, indigenous rights, sovereignty, climate justice, adaptation, equality, water rights, Aboriginal communities

Abstract

Indigenous peoples occupy a unique niche within the climate justice movement, as many indigenous communities live subsistence lifestyles that are severely disrupted by the effects of climate change. Additionally, in many parts of the world, domestic law is applied differently to indigenous peoples than it is to their non-indigenous peers, further complicating the quest for legal remedies. The contributors to this book bring a range of expert legal perspectives to this complex discussion, offering both a comprehensive explanation of climate change-related problems faced by indigenous communities and a breakdown of various real world attempts to devise workable legal solutions. Regions covered include North and South America (Brazil, Canada, the US and the Arctic), the Pacific Islands (Fiji, Tuvalu and the Federated States of Micronesia), Australia and New Zealand, Asia (China and Nepal) and Africa (Kenya).

PART I INTRODUCTORY CONTEXT AND PRINCIPLES
1. Commonality among unique indigenous communities: an
introduction to climate change and its impacts on indigenous
peoples 3
Randall S. Abate and Elizabeth Ann Kronk
2. Introduction to international and domestic climate change
regulation 19
Deepa Badrinarayana
3. Introduction to indigenous peoples’ status and rights under
international human rights law 39
Lillian Aponte Miranda
4. Introduction to indigenous sovereignty under international
and domestic law 63
Eugenia Charles-Newton and Elizabeth Ann Kronk
5. Climate change and indigenous peoples: comparative models
of sovereignty 79
Rebecca Tsosie
6. Indigenous environmental knowledge and climate change
adaptation 96
Maxine Burkett

Climate change and indigenous peoples
PART II GLOBAL PERSPECTIVES
International Organizations
7. REDD+: its potential to melt the glacial resistance to
recognize human rights and indigenous peoples’ rights at the
World Bank 123
Leonardo A. Crippa
South America
8. REDD+ and indigenous peoples in Brazil 151
Andrew Long
9. REDD+: climate justice or a new face of manifest destiny?
Lessons drawn from the indigenous struggle to resist
colonization of Ojibwe Forests in the nineteenth and twentieth
centuries 178
Philomena Kebec
Lower 48 States of the United States of America
10. Natural resource development and indigenous peoples 199
Sarah Krakoff and Jon-Daniel Lavallee
11. Climate change and tribal water rights: removing barriers to
adaptation strategies 218
Judith V. Royster
Arctic
12. Canadian indigenous peoples and climate change: the
potential for Arctic land claims agreements to address
changing environmental conditions 243
Sophie Thériault
13. America’s Arctic: climate change impacts on indigenous
peoples and subsistence 263
Peter Van Tuyn
14. The Saami facing the impacts of global climate change 287
Irina L. Stoyanova
15. Complexities of addressing the impacts of climate change on
indigenous peoples through international law petitions: a case
study of the Inuit Petition to the Inter-American Commission
on Human Rights 313
Hari M. Osofsky

Pacific Island Nations
16. Climate change, legal governance and the Pacific Islands: an
overview 339
Erika J. Techera
17. Fiji: climate change, tradition and Vanua 363
Victoria Sutton
18. Islands in the stream: addressing climate change from a small
island developing state perspective 377
Clement Yow Mulalap
19. The rising tide of international climate litigation: an
illustrative hypothetical of Tuvalu v Australia 409
Keely Boom
Asia
20. The impacts of climate change on indigenous populations in
China and legal remedies 441
Wenxuan Yu, Jingjing Liu and Po Dong
21. Changing climate and changing rights: exploring legal and
policy frameworks for indigenous mountain communities in
Nepal to face the challenges of climate change 468
J. Mijin Cha
Australia and New Zealand
22. Climate change impacts to Aboriginal and Torres Strait
Islander communities in Australia 493
Megan Davis
23. Negotiating climate change: Māori, the Crown and New
Zealand’s Emission Trading Scheme 508
Naomi Johnstone
Africa
24. Climate change, law and indigenous peoples in Kenya:
Ogiek and Maasai narratives 535
Patricia Kameri-Mbote and Elvin Nyukuri

Citation

2013. Climate Change and Indigenous Peoples: The Search for Legal Remedies, eds. Randall S. Abate and Elizabeth Ann Kronk. Cheltenham: Elgar.

Paper

Climate Change and Indigenous Peoples: The Search for Legal RemediesFacebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail