The third Scotia group dialogue was held online in partnership with St Andrews University

The purpose of the 26th United Nations Climate Change Conference is the same as those that came before: to allow states that are parties to the UN Framework Convention on Climate Change to review and amend that Convention. So, the Conference of the Parties is the supreme decision-making body of the Convention. In effect, it is both a legislature and an executive, and what it will ultimately produce will be an instrument of international law.

Participants at the 2015 United Nations Climate Change Conference.
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National courts

Sir David Edward gave the dialogue a series of case histories that illustrate how legal systems in Europe and Australia have dealt with recent environmental challenges.

The first case illustrates the default position. It dealt with an appeal brought before the Federal Administrative Court of Switzerland in 2018 by a group called the Climate Seniors Association, which was made up by about 2,000 women over 74. Their demand was that the Swiss government protect them from heat waves by bringing forward tougher environmental legislation. Their case was dismissed on the factual grounds that older people are not in greater danger than the rest of the population. 

“There may be an obligation – but you can’t enforce it. There are plenty of examples in EU law of cases like that.”

This seemed to suggest that national courts would not play much of a part in forcing states to adopt policies that responded to the scientific consensus as expressed in the Convention (and elsewhere). However, it has been followed by a number of landmark rulings that point in the opposite direction.

In 2019, the Dutch supreme court heard Urgenda Foundation v State of the Netherlands, in which an environmental group representing 900 citizens successfully sued their government on the grounds that its climate change policy was insufficiently tough. This case showed that, although courts cannot enforce the Convention directly, national constitutions can be used to enforce them indirectly.

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This was followed in May 2021 by a ruling from the Hague district court in the Milieudefensie case, in which the Shell Group was the subject of a class action brought by seven NGOs and more than 17,000 individuals. The implication here was that courts would not only deal with claims against states, but also private companies – a huge increase in their scope of action. The result was a judgment that the entire Royal Dutch Shell group had to cut emissions at least 45% by 2030 – as did customers who burned its oil and gas. 

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In the same month, Australia’s Federal Court issued a ruling in Sharma v Minister for the Environment, a case brought by eight Australian children on their own behalf, and as representatives for every Australian under the age of 18. They argued that a decision by Sussan Ley, the Federal Environment Minister, to approve a A$700m extension to the Vickery coal mine in New South Wales contravened her duty of care to Australia’s children as set out in the 1999 Environment Protection and Biodiversity Conservation Act. The court found that the government does indeed owe a duty of care to Australian children and had to consider their interests when making decisions.

The final case Sir David addressed was a case brought by NGOs and young people in the German Constitutional Court. This argued that the 2019 Federal Climate Protection Act violated their constitutional rights by setting carbon reduction targets too low. Here, the court ruled that the government could not limit climate obligations if that would cause unacceptable problems for future generations. It ordered that the legislature must set clear reduction targets for 2031 onwards, and must do it by the end of 2022.

The conclusion that Sir David drew from these cases, and a number of other pending in Canada, Mexico, Guyana and the UK, is that it is not enough to conclude intergovernmental agreements;

“What COP26 ought to do is open the opportunity for individuals and representative groups to take action in national courts.”

Sir Ian Boyd

The second speaker at the dialogue was Sir Ian Boyd, who is chair of the Environmental Sustainability Board at the University of St Andrews. He tackled the question of enforcement and implementation from a position of administrative pessimism. So, many governments have now declared that they will be net zero by a particular date, and some (Scotland and the UK included) have passed legislation and set up oversight and planning bodies to ensure they meet it.

And yet, how confident are we that a government – even one that has been found guilty by a court – has the ability to keep its promises, no matter how much it may want to?

“In my experience, having worked within government, they have a kind of paralysis brought on by the sheer scale of the challenge,” he said. “Industrial sectors have transformed in the past, but rarely have they ever transformed at the rate needed to adapt to climate change, and never have they transformed in parallel, in the way that we require them to do over the next 20 to 30 years.”

If it’s true that governments are unable to effect the required changes in industry and society, it follows that the first thing they have to do is to change themselves. The problem is that, in practice, enormous force is required to overcome institutional inertia – even an external shock as violent as the 2008 global financial crisis, plunged the UK met into a decade of austerity that degraded the public realm yet did little to upgrade the machinery of government.

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What’s more, it is far from clear that governments’ rhetorical commitment to climate change is really reflected in policy outputs. Any political realist knows that governing is a bargaining process in which the views and interests of many internal and external groups have to be reconciled, so there is little chance of achieving the whole-of-government effort that climate change calls for.

The conclusion that Sir Ian drew from this analysis echoed the proposition put forward by Andy Kerr in the second dialogue, which is that it falls to sub-national groups to “step up” and carry out the policies that governments would develop if they were able. But whereas Andy had municipal bodies in mind, Sir Ian discussed the roles civil society and businesses can play.

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To illustrate this point, he gave the example of the University of St Andrews, which has put together a strategy to reach net zero by 2035 – 15 years ahead of the UK target (and 10 years ahead of Scotland’s). The reason for this tight schedule is that few institutions are as well placed as a university to achieve the goal, which means that their journey to net zero can act as demonstration projects for the rest of society.

Although this process is just getting started, some principles have already emerged.

However, that is a relatively small part of the university’s footprint when compared with what it buys and builds, and how its members travel. The problem is that these are in the hands of external suppliers. It is comforting – but false – to imagine that all those suppliers will also carry out their businesses sustainably, leaving the Environmental Sustainability Board free to concentrate on changing electricity supplier: that way lies tokenism.

So, to offset this uncontrollable carbon, the university has to absorb it. “If we cannot do that we are not playing our part in getting the whole nation to net zero.” In St Andrews’ case, that means planting a forest.

Lea Wiemann

The presentations at this third dialogue followed a progression. They moved from the hyperrational realm of the legal system, to the broad but still specialised world of institutional governance, to end at community activism, where we find the passion and conviction that furnishes the law with its cases and the university with its students.

What gives this form of activism its sense urgency and energy is the sense that governments are failing to tackle the problem by international agreement or domestic legislation. “We haven’t successfully addressed the issue despite holding Conference of the Parties meeting for 30 years now. And why is it that, despite the growing consensus on climate change it is not necessarily reflected in the people we vote into power or the societal changes that we need?”

Lea’s take on this was that

“we’ve become really comfortable in a hot pot”

– a reference to the frog in the saucepan, which doesn’t notice that its position is untenable until it’s too late.

So, here are two points to think about. Firstly, if you’re a frog that has become aware of the situation you’re in, it’s in your interests to participate in changing it. Use your skills, talents and social media accounts to argue for change. “I would argue that the only reason we’re seeing some real changes in the world is because of community activism,” Lea says. “It’s because of young people striking, protesting, speaking up about it.”

Secondly, Lea acknowledged that activism is difficult to keep up in the long term, and yet is a long-term activity – she’s spent 10 years building up her platform. This raises the question of how we make campaigning for sustainability sustainable. Here the key is giving people the sense that they are getting somewhere and part of that is giving activists a “voice at the table”.

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The dominant theme of the legal cases discussed by Sir David was the duty of care one generation owes another; Lea argues that that has to influence the way we set up our debates. Community activism needs as many channels of expression as possible, and if that expression leads to concrete results we can hope for a virtuous circle in which the more effective involvement is, the more sustainable it becomes.

And this is something that the Scotia Group has taken to heart.

The dialogue was audited by a number of St Andrews’ students who will be joining Lea on our newly established Scotia Fellows programme. This idea, as explained by Scotia founder Malik Dahlan, is that each of the group’s partner universities nominate five students as fellows.

“We have asked them to be patient until they listen to the dialogues and majlises. We need some time to come up with our ideas, but then we will give them the chance to have their own conversation, and we listen. They will hold their own public debate in September, with the aim of choosing which of the Scotia group’s policy proposals are ultimately presented to the Glasgow conference.”