First broadcast on 14 January 2021
In this episode, Tom Heap investigates if it is better to take to the courts than take to the trees.
Campaign and protest have been the traditional tools of environmental action in the UK. American lawyer, James Thornton, set up ClientEarth to defend the planet in a different way - by using the courts. Using local laws to challenge governments and businesses they've had success across Europe and beyond, preventing the construction of coal-fired power stations and challenging the curse of air pollution. As well as enforcing environmental laws they're helping get new laws written.
Tom Heap meets James and discusses the carbon implications of his ideas with climate scientist and Society Fellow, Dr Tamsin Edwards.
Listen now on BBC Radio 4
We invited Society Fellows, Professor Pavlos Eleftheriadis, a Professor of European Union law and public law at the University of Oxford and a practising barrister in London, and Professor Stephen Peake, a Professor of Climate Change and Energy at the Open University, to offer some observations on the potential of legal action in cutting carbon emissions. Their points take some of the themes of the programme a step further:
Τhe Faculty of Law at the University of Oxford is a leading centre for the study of environmental, European and international law. Holding governments and companies to account is essential and vital work, especially as most countries will be accelerating their policies to aim for net zero carbon emissions by 2050.
In my new book on European law, A Union of Peoples: Europe as a Community of Principle, I argue that the European Union (EU) is best interpreted as an international cooperative project on the basis of reciprocity. What has happened in Europe, though, can be an example for equally well-focused climate action worldwide.
The European Commission is proposing that the EU creates a legal target of a reduction in its greenhouse gas (GHG) emissions by at least 55% by 2030 from 1990 levels. This is a step up from the 40% cut that was agreed six years ago. If the member states and the European Parliament agree, the target would be written into EU law and made binding in all 27 member states. This is an essential step towards the EU pledge of matching the UK’s legally binding target of carbon neutrality by 2050, and it is also an example of the great benefits of cooperation under the rule of law.
The key to addressing the climate crisis is this kind of detailed international cooperation based on the rule of law. International society consists of independent and sovereign states that act on the basis of their own interests and on account of their own domestic priorities. For this reason, states (and their populations) are in principle distrustful of each other and do not enter complex commitments that cost them money or jobs in the short term, unless they are convinced that the other side will keep to what has been agreed.
This is why we have long term multilateral agreements, such as the International Telecommunication Union (ITU), the World Trade Organisation (WTO), the International Civil Aviation Organisation (ICAO), the World Health Organisation (WHO), the European Union, etc. These international bodies create relations of mutual trust after repeated episodes of successful coordination and cooperation for mutual benefit. This has happened in Europe, which is now a peaceful continent on the basis of reciprocal legal commitments repeatedly affirmed by leaders and courts
Bełchatów powerplant, Poland, is the biggest CO2 emitter in Europe (Image: Flickr, CC BY-SA 2.0, via Wikimedia Commons)
Such a process of slow and repeated coordination is how the Paris Agreement was achieved. It was the result of many rounds of negotiations, of the relative success of the Kyoto Protocol, and of the work of an international panel of scientists that worked together to articulate and disseminate the scientific argument. The Paris Agreement now sets up a relatively flexible system of cooperation where states renew their commitments every five years, in the hope that in due course everyone will do their bit for the Earth. It is entirely based on trust on the basis of reciprocity.
It is within this context that we should see domestic climate laws and other environmental laws and their enforcement. They are essential for global cooperation because they create trust among the various states and peoples. The UK was first to adopt a climate law with its Climate Change Act 2008. The European Union followed that with the Renewable Energy Directive (2009/28/EC) which establishes an overall target for the production and promotion of energy from renewable sources in the EU, so that 20% of its total energy needs should be met by renewable energy by 2020. The EU has now drafted stricter targets as well as clearer legal obligations and is now proposing an ever stronger Climate Law.
I support ClientEarth’s stance that the combination of international law and the vigorous enforcement of domestic law is essential for achieving the goals set out in the Paris Agreement and beyond.
Focusing only on the legally enforced transition to renewable sources of energy, i.e. by copying the EU Renewables Directive on a global scale, the estimated results could be combined with that of Project Drawdown (see table below), and see a greater effect of the transition of all renewable sources of energy. Although this is a highly hypothetical calculation, it shows the great benefits that may follow from close international cooperation on the climate crisis on the basis clear legal obligations."
SCENARIO 1 *
SCENARIO 2 *
Onshore Wind Turbines
Utility-Scale Solar Photovoltaics
Offshore Wind Turbines
* Gigatons CO2 Equivalent reduced/sequestered (2020–2050). Drawdown Scenario 1 is roughly in-line with 2˚C temperature rise by 2100, while Drawdown Scenario 2 is roughly in-line with 1.5˚C temperature rise at century’s end.
Source: Project Drawdown, Table of Solutions
The case of COVID-19 is an example of policy implementation that is non-linear. For example, the course of the airline industry has been changed, forever. There is a hysteresis in the system. And so too it is with layers (years) of sedimentary soft laws building up. They change the baseline, but it is hard to measure.
In some specific cases, we can attack the data like public health officials. A classic case is the US CAFE (corporate average fuel efficiency) standards that have been studied by economists for several decades. Greene and Greenwald estimate that the policies helped, in part, to keep the rate of yearly growth in US gasoline consumption to 0.2% since 1975. The CAFE policy, as well as increases in gasoline prices, reduced oil imports and saved 2 trillion gallons of gasoline. This is enough to fuel all of the light-duty vehicles in the United States for 15 years!
Fuel nozzles at a petrol station (Image: Chanikarn Thongsupa/Rawpixel)
Another example is the European Auto Oil Agreements over the years. The impact of Kyoto has been examined and can be quantified. The Clean Development Mechanism (CDM) has been estimated to have been worth about around 3 gigatons of CO2.
Economists talk about the ‘autonomous energy efficiency improvement’ in their models of the future: the dependable year on year decoupling of economic growth from energy consumption (and therefore generally GHG emissions). How much is nudged along by fiscal and legal policies at the national and international level and how much of it is market driven technical innovation?
Without any international agreements on GHG emissions, the world’s known fossil fuel reserves were changing as a result of consumption, but also changes in mining, drilling technologies. The prospect of peak cheap oil and peak cheap gas has always been present. These have their own impacts on markets and national strategies for energy diversity and independence."
Eleftheriadis, P. (2020) A Union of Peoples. Oxford University Press
(2008) Climate Change Act, c. 27
(2009) Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC
Project Drawdown, Table of Solutions
Greene, D. and Greenwald, J. (2020). Assessment of US CAFÉ fuel economy standards finds big savings on fuel and emissions since inception, Green Car Congress
UNFCCC (2012) The Clean Development Mechanism.
39 ways to save the planet is a new radio series by BBC Radio 4 developed in partnership with the Society and broadcast in 2021. It showcases 39 ideas to relieve the stress that climate change is placing on the Earth. In each 15 minute episode Tom Heap and Dr Tamsin Edwards meet the people behind a fresh and fascinating idea to cut the carbon.
Over the course of 2021, the Society will be producing events and digital content to accompany the series.
Featured card image: Photo of James Thornton by Dan Wilton
Featured banner image: MiamiAccidentlLawyer/Pixabay
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