The fourth dialogue of the Scotia Group was held on 21 July

a little over a fortnight before the UN’s Intergovernmental Panel on Climate Change published the first instalment of its Sixth Assessment Report, Climate Change 2021: The Physical Science Basis, and a little less than 30 years after the UN Conference on Environment and Development produced the Rio Declaration on Environment and Development, and the Framework Convention on Climate Change. This last is, of course, the document that is amended and extended by the annual COPs (conferences of the parties).

The subject the Scotia Group’s experts met to consider was how the UK, as host to COP26, could demonstrate a capacity for global leadership. Before moving onto what was said on that subject, however, we should pause and ask ourselves what has been achieved by the previous 25 COPs. This question was considered by Professor James Dallas, Executive Director of the Energy Law Institute at St Mary University of London, which jointly hosted the meeting with the Alan Turing Institute. His introductory remarks took the form of a brief yet devastating history of coordinated climate action. A generation has passed, he said, since the signatories to the Declaration and the Convention met at the Rio Earth Summit and established the consensus view that climate change was occurring, was the result of human activity, and could be solved only by concerted action by all states.

The Rio Earth Summit aimed to balance growth and environmental protection | UN /Michos Tzovaras License link

“Since then, the population of the world has increased by 2.4 billion people, the cumulative emissions of carbon dioxide, which reached 860 million tonnes in the 240 years between the start of the industrial revolution and the 1992 Earth Summit, have doubled in less than 30 years, and the the parties to the Convention have … yet to agree a voting procedure.

“We are shuffling towards the abyss, and as we go, we are nudging with us the fora and flora that we share this Earth with.”

But has that mood of passive concern now changed? James thinks it has.

“A tectonic shift has taken place in the past seven years.

Climate change is impacting every aspect of what we at the Energy Law Institute teach in this sector, from the nature of projects to regulators, lenders, investors and governments. The courts of the world are awash with challenges to governments in action and corporate failings, and international oil companies are facing the need for rapid change.”

Lord Adair Turner

The first of the conference’s main speakers was well placed to unpack and analyse what the UK got right, and what other countries can learn from its approach, because he was present at the birth of the country’s climate change strategy.

The UK Climate Change Committee is an independent, statutory body of experts established by the 2008 act. Lord Adair Turner was its chair during the first five years of its existence, and saw the effect that it had on government and industry.

TARGET

The most important point, he said, was to establish forceful policies. If industry is convinced the government means what it says it means, and is going to continue to mean it for the next 50 years, then it will naturally, rationally, fall into line. So, if a steel maker is considering whether to switch to hydrogen and produce a more expensive product, it will go ahead only if it believes the government will compel all its competitors to do the same. The same is true of the government itself. The vast, rambling confederacy of fiefdoms that makes it up can be marshalled if, and only if, all are convinced that they have no choice but to comply with an overriding policy objective.

The creation of this perception was a large part of the Climate Change Committee’s job. Like that other snarling watchdog, the National Audit Office, it is not answerable to government, but to parliament. This means that it can hold the executive to account without worrying about any embarrassment it may cause.

Another important means of encouraging faith in climate change policy, Lord Turner argued, is predictability and transparency. In 2019 the government set a target of reaching carbon neutrality by 2050. This period is divided into five-year “budgets” that state how much greenhouse gas is going to be emitted, beginning in the period 2008-12 and now stretching to 2035. Parliament agrees three of these in advance, so all large-scale emitters know what will be allowed over a 15-year period, and the government knows that it will be subject to legal challenges and judicial reviews if it fails to keep to the stated limits. This then forms what Lord Turner called a “forcing mechanism” – the government knows that it has to take action or else it will break the law.

A Climate Change Committee crib sheet | London School of Economics

Thirdly, there is the Climate Change Committee itself. “It’s not a huge body – about 25 or 30 people – but it produces high-quality analysis of what it is we need to do to set and meet the carbon budgets.” This then sits on the shoulder of government and continually reminds it what it has to do to meet its carbon budgets, and how it can do it.

For example, it employs stock-flow consistent models to determine the answers to question such as how quickly it will be possible to decarbonise road transport once a certain percentage of electric vehicles are sold a year.

“It is always looking for an economically feasible path from A to B within an non-negotiable commitment to get to net zero by 2050, at a pace that is compliant with our national determined contribution under the Paris Climate Agreement.”

Finally, how successful has the committee, and the government, been in keeping the UK to its carbon budgets? Here the picture is mixed. “We have met the first three budgets, but unless we tighten policy considerably, we will not meet future ones,” Lord Turner noted.

“The sixth carbon budget requires that by 2035 we achieve a reduction of 78% below the 1990 level.

That is a stretching target, and will require more action by government than it has taken so far.”

The UK exceeded its target for the 2020 carbon budget, but is on course
to miss 2050 by a wide margin. Source: Climate Action Tracker

And it seems that the courts are willing to take up that role. Sir William Blair, who addressed the meeting in his capacity as professor of Financial Law and Ethics at Queen Mary, gave a situation report on how the legal climate has changed over the past few years.

Sir William Blair QC

We are, he said, observing the beginning of a wave of litigation related to climate change, both in civil code and common law jurisdictions. He quoted from a recent paper from the London School of Economics that assessed the global trend in climate litigation.

This detected a rise in the number of “strategic” actions – that is, those brought by activists hoping to compel governments to set tougher targets or reverse particular decision. Up until the end of May, there were some 1,848 continuing or concluded cases, three quarters of which took place in the US. Furthermore, around 121 new case have been filed in the past year, which Sir William said sounded like a big number, but actually wasn’t. Nevertheless, the scope for more filings is obvious, particularly if it seems the courts are receptive to the kinds of arguments that activists put forward.

And, as Sir David Edward suggested in his talk to the third Scotia conference, there have been a number of important decisions. Both the French and German governments have this year suffered spectacular defeats in their courts, and will have to amend their laws as a result.

Meanwhile, an Australian court’s decision in Sharma v Minister for the Environment, also discussed in the last dialogue, established the important principle that judges will consider the interests of future litigants – that is those who stand to lose most from climate degradation. This will be further tested in a case before the Federal Court in Melbourne in which a 23-year-old law student is suing the Office of Financial Management and the Treasury on the grounds that are deceiving investors by not disclosing climate change risks in exchange-traded debt. “A big ask of a court,” Sir William thinks, but not impossible when you “stand back and look at the big picture”.

All of those cases have developed public environmental law. The real landmark, however, was the Milieudefensie judgment of the Dutch constitutional court, which for the first time ordered a private company – Royal Dutch Shell Group – to curb its own carbon emissions and those of its customers.

Environmental group Milieudefensie (Friends of the Earth) | Marten van Dijl/Milieudefensie

Some of these cases are subject to appeal, so we do not yet have the definitive picture. However, the indications are that this may not be an area where the UK is taking a lead: Sir William referenced the decision of the Supreme Court in January to overturn a block on the construction of a third runway at Heathrow Airport.

He explained this by the fact that the common law system in England and Wales “does not have same overarching procedures as Germany and France”. Nevertheless, passive concern about climate change is now shifting to active alarm, as more and more influential people come to realise that Planet Earth might be a more dangerous place for them than they had been led to believe, so we should expect that more precedents will be set, which in turn will stimulate more and more litigation.

THE GLOBAL PERSPECTIVE

If those present at the dialogue took heart from what Lord Turner and Sir William Blair had to say, the remarks of Lord David Howell, the dialogue’s third speaker, came as something of an ice bucket down the back of the neck.

Lord David Howell

Lord David Howell, an economist by training, has had a long career in journalism, parliament and government.

“We can’t be left in any doubt that in the UK, we’re doing rather well,” Sir David began, gently enough. “All political parties in successive governments accept the case for fighting climate change and have agreed the targets” – even though, as Lord Turner noted, we have yet to take the truly painful decisions.

It is, alas, a fact that no matter how well the UK performs, it is responsible for slightly less than 1% of global emission. “Look at global picture and what do you see?” he went on. “Firstly, emission rising rapidly after the pandemic – a rise that is expected to continue throughout the 2020s. The Paris Agreement asked for a 7.6% reduction every year to limit the rise in average global temperature to 1.5°C.

We’re miles away from that and moving further, and this is very, very serious.”

The reason for this failure to meet the Paris target is that Asia, Africa and Latin America still have to develop their economies to Western levels, and although they are presently massive carbon emitters, in historical terms their contribution to cumulative greenhouse gases is comparatively small. China, for example, had 1,040 gigawatts of coal-fired power stations in 2019 – around 16 times greater than the entire installed capacity of the UK – but its contribution to total carbon since 1751 is about half that of the US.

Source: Our World in Data License link

What’s more, although Milieudefensie was a wake-up call for the international oil companies, the fact remains that about half of our hydrocarbons come from national oil companies, and these would appear to be beyond the jurisdiction of Western courts.

So, the “gloomy reality” is that whatever happens in the UK may be virtuous, splendid and admirable, but it is also futile.

This point runs up against the same impulse that muted the Rio Earth Declaration, albeit with rather more justification in gross domestic misery. “I travel the world to conferences and I have to tell you, I haven’t heard much talk about examples. I just don’t hear it. I hear instead that there are 2.8 billion people with no access to grid electricity. I hear that half the world – 3.5 billion people – does not have access to reliable power.

China has a terawatt of coal-fired capacity | Tobixen/GNU

“The task for many countries in Asia, Africa and Latin America, their entire momentum, is to get the cheapest electricity to their people in the shortest possible time, and they’re not going to stop unless a lot of money comes along. That is the reality. If we’re going to delay delivering power to people who need it, they will want funds from the countries that caused all this in first place.” How much money? Well, whatever the notional sum might be, it will probably have 11 noughts after it.

SPEAKING OF CHINA

The final speaker at the conference was somewhat off the topic of the UK’s role in leading, or not, the global effort to curb carbon, but in light of Sir William and Sir David’s remarks, he was very much part of the dialogue.

This was Dimitri de Boer, the Chief Representative of ClientEarth in China, and what he had to say presented the delegates with another illuminating perspective.

Dimitri de Boer

Sir William made the point that legal systems only can play a part in holding governments to account if they recognise the rule of law. And it is generally understood among Western commentators that this is a questionable proposition when it comes to China’s strange system of government, in which the Communist party seems to dominate legal and administrative institutions.

Chongqiong seen through a veil of smog | (Photoholgic / Unsplash)

Dimitri’s talk presented a radically different picture.

It is certainly true that China, with its terawatt of coal-fuelled power stations, is responsible for about a third of global emissions. And it is true that many OECD countries are reducing their emission while China’s will continue to rise for the next 10 years. However, it is also true that China is consciously using its domestic court system to allow civil society to challenge the state.

Alongside this surge in judicial activism, the government appears to be moving to ban the funding of coal-fired power stations on projects funded under the Belt and Road Initiative – partly as a result of ClientEarth lobbying. No new coal projects were approved in 2020, most that were proposed earlier have been shelved, and this year Chinese financial institutions have begun pulling out of large BRI coal plants. “Just last Friday, a government policy was introduced that sets green standard and green bottom lines for China’s overseas investments.”

Source: Region.svg License link

All of which is encouraging, but it does not alter Sir David’s point that China is presently doing more than any other nation to ensure that the 1.5°C target will not be met.

Coal power may be not funded under the BRI, or by the Beijing-based Asian Infrastructure Investment Bank, but last year 53 gigawatts of new coal was approved anyway, and China’s emissions of greenhouse gases are running about 50% above pre-Covid levels,

which means that the leeway that China set itself for increasing emissions between now and 2025 has already used up.