Assessing global risks on Earth Day 2020

As the world takes its next steps in the COVID-19 pandemic, the World Economic Forum’s 2020 Global Risks Report provides context.

For the first time in the history of the Global Risks Perception Survey, environmental concerns dominate the top long-term risks by likelihood among members of the World Economic Forum’s multistakeholder community; three of the top five risks by impact are also environmental.

The graphic at right paints this picture starkly and colorfully. Whether measured by likelihood or impacts, the blue economic risks that dominated survey results from 2008-2012 have given way to a solid wall of green environmental risks in 2020. These environmental risks include:

  1. climate action failure
  2. biodiversity loss
  3. extreme weather
  4. natural disasters
  5. human-made environmental disaster

The World Economic Forum is not a tree-hugging organization. It is a members only group of some 1,000 companies that “engages businesses in projects and initiatives – online and offline – to address industry, regional and systemic issues.” Members work in all sectors of the economy: from aerospace to banking, manufacturing to agriculture, IT to insurance, mining to retail. Most of us know of the Forum’s posh annual meeting in Davos. Likely fewer of us noticed its new manifesto on the “universal purpose of a company in the fourth industrial revolution” and its core tenets:

  • “The purpose of a company is to engage all its stakeholders in shared and sustained value creation.”
  • “A company is more than an economic unit generating wealth. It fulfills human and societal aspirations as part of the broader social system. Performance must be measured not only on the return to shareholders, but also on how it achieves its environmental, social and good governance objectives.”
  • “A company that has a multinational scope of activities not only serves all those stakeholders who are directly engaged, but acts itself as a stakeholder – together with governments and civil society – of our global future.”

Chapter 3’s title does not sugar coat climate change: A Decade Left, Confronting Runaway Climate Threat. It relies on the most recent reports of the IPCC, UNEP, and IRENA, as well as those of insurance giant Swiss Re and the Bank of England, to conclude that “climate change is striking harder and more rapidly than
many expected
.” Businesses feel this impact, whether from the costliness of delaying the transition away from fossil fuels, uncertainty and riskiness of relying on geoengineered emissions mitigation, or failure of multilateral political cooperation to settle fair rules for all. Ending on this “geopolitical unsettling” that affects environmental, economic, and social wellness, the 2020 Global Risks Report reminds us that

Powerful economic, demographic and technological forces are shaping a new balance of power. The result is an unsettled geopolitical landscape—one in which states are increasingly viewing opportunities and challenges through unilateral lenses. … Beyond the risk of conflict, if stakeholders concentrate on immediate geostrategic advantage and fail to reimagine or adapt mechanisms for coordination during this unsettled period, opportunities for action on key priorities may slip away.

The need for speed on climate change

This new article in the Bulletin of the Atomic Scientists underscores the need – and potential – for action on short-lived climate pollutants (SLCPs). While the 2050 net zero pledges made in NDCs (discussed in this recent post) are important, the three authors argue that

… the climate battle could be lost long before 2050; it might even be lost by 2035.

They advocate for SCLP actions that will start by 2023 at the latest, be mostly implemented in 5-10 years, and “produce a climate response within the next decade or two.

Building new business models for the coming renewable energy transition

Can cooperatives become a major player in the renewable energy transition? Non-Profit Energy Cooperatives as the Catalyst of the Movement of People to Renewable Electricity, a webinar hosted by the Environment, Energy and Natural Resources Center at the University of Houston Law School, sets out this ambitious mission:

The renewable energy revolution poses a once in a lifetime opportunity for co-benefits of democracy, bringing electricity to those who lack it, and equity. This transition has the potential for widely shared prosperity, not just a decrease in suffering. To unlock that potential, however, we also need to disrupt business as usual in the dominant business model. The co-benefits are more likely if the institutions that lead the way are democratically owned and managed with the explicit goal of bringing the benefits of ownership to those who have been traditionally marginalized by the current economic and energy system.

Panelists Melissa Scanlan, who has blogged about her research on cooperatives in Spain as a Fulbright Scholar, and Gabe Pacyniak provided background on energy cooperatives, case studies in the US and Spain, and perspectives on what is needed to scale them up to fuel the needed transition to clean sources of energy.

Cooperatives have a long history as a business form for selling goods and services. Driven by values as well as profit, coops are owned by their members, not shareholders. They are governed democratically, meaning 1 vote per member (not per $ of investment, as with shares); reinvest profits in the coop or its members through dividends; and tend to keep economic and social benefits in the communities where they are established. In the US, food, farmer/agriculture, water, and electricity coops are the most common. Melissa observed that there are more coop members in the US than there are corporate shareholders.

Renewable energy (RE) coops are electricity coops that are acting on their shared values to address their environmental impact, both on climate change and local air pollution. To understand how they function requires understanding the 4 steps for moving electricity from the point of production to you. They are:

  1. generation (of wholesale electricity)
  2. transmission (of wholesale electricity via a grid)
  3. distribution (from grid substations to consumers on lower level wires, where 800 coops currently account for 13% of all electricity sales), and
  4. consumption (getting it to consumers and billing them).

Gabe has studied New Mexico’s 19 rural electricity coops, some of which are looking to transition to renewables. He described how the New Deal fostered the creation of US electricity coops, and planted the seeds of both success and current constraints. By 1930, only 10% of rural households were electrified, and the for-profits that furnished urban electricity were hobbled by the Depression. With the creation of the federal Rural Electrification Administration (REA), $2.7 billion was funneled to coops (most in distribution, but some in transmission). A decade later, the US had achieved 90% electrification. These coops were fit for purpose in the 1930s, when relatively little was known about fossil fuels and climate change, and the goal was to bring electricity to the rural poor as inexpensively as possible. But now, in our carbon-constrained world, their origins in 90% coal-fired electricity generation make transitioning to renewables a challenge.

Melissa provided case studies from Spain, which per EU legislation, achieved 29% of electric generation from renewable sources by 2010 with a combination of generous subsidies and legal reforms. Those reforms opened electricity generation, transmission, and distribution to new entities and established national laws for certifying electricity origins, which fostered growth and commercialization. (STAY TUNED for the publication of her book in progress.) Both subsidies and policy support created the conditions for coops to act on their values to fuel the renewable energy transition.

But her case study from Georgia, Cobb EMC, merits more attention. Cobb EMC is the third largest electricity coop in the US with 200,000 members. It installed one of first utility scale solar installation in eastern US and produces the most megawatts of any energy coop – all within a state that has taken no policy and legal steps to incentivize green energy. It provokes the question: Can coop values alone propel this renewable transition?

Gabe would say no. Coops comprise a limited proportion of the current RE market, with for-profit energy companies dominating this sector. He sees power coops struggling to shift from their coal-fired roots, in part because they cannot take advantage of federal tax incentives. He also points to light federal oversight and exemption from clean energy regulations (like state Renewable Portfolio Standards) having led to relatively unrigorous resource planning. Potential solutions are policy support for stranded assets (to retire those old coal-fired plants), more oversight of coop planning, and new wholesale rate models akin to those happening in the private sector.

For renewable energy coops to have a larger scale impact in the US, both panelists see the need for a modern new deal to fuel energy coops. The potential for post-pandemic infrastructure investments by the US government seems high, and harkens back to the Depression era solutions that created electricity coops in the first place. These case studies provide timely, persuasive examples of the kinds of policies needed to promote the economic, environmental, and social benefits of RE coops.

SLCPs: A potent link between air pollution and climate change

What are short-lived climate pollutants (SLCPs) and how do they affect climate change? Panelists on this webinar from WRI, Enhancing NDCs: Short-lived Climate Pollutants, make the case for why reducing SLCPs can give an immediate boost to lowering the global temperature while also decreasing local air pollution and improving human health.

Black carbon aka soot.

The main SLCPs are black carbon, methane, hydrofluorocarbons, and tropospheric ozone. Black carbon is a leftover of incomplete combustion of fossil (oil, coal, natural gas) and wood fuels. Because air pollution standards in North America and Europe have decreased these emissions significantly, the majority of black carbon currently comes from Asia, Africa, and Latin America, mostly from household cooking and heating and transportation. Black carbon lives in the atmosphere for less than 12 days (vs. CO2 lingering for a century), but has a high global warming potential. Methane comes primarily from agriculture (livestock and rice cultivation), coal mining and oil and gas production (gas flaring), and waste management (landfills). Methane lives in the atmosphere for only 12 years, but is more than 80x more powerful at warming the atmosphere than CO2. Hydrofluorocarbons (HFCs) are industrial chemicals used in air conditioning and refrigeration that remain in the atmosphere for 15-29 years and are more than 1000x more powerful than CO2. They are quickly increasing, having been created to take the place of other cooling chemicals that were banned because they deplete the stratospheric ozone layer. Tropospheric (ground level) ozone, a secondary gas that results when sunlight interacts with hydrocarbons (like methane) and nitrogen oxide (NOx), lives in the atmosphere for just a few weeks.

Taken together, eliminating these SLCPs has the potential to reduce warming by .6 degrees in a short period of time. Given that these pollutants also foul local air quality and cause lung and heart disease, they have the potential to build local and immediate political will that can produce global and longer term benefits. Hence the strategy of specifically including actions to reduce and eliminate SLCPs in the Nationally Determined Contributions (NDCs) required under the Paris Agreement. The first round of NDCs submitted in 2015 and 2016 did little on SLCP mitigation. With revised NDCs expected this year and the focus on closing the emissions gap by 2030, there is a full court press to include SLCPs this time around.

The Climate and Clean Air Coalition (CCIC) is an alliance of 69 countries, 18 IGOs, and 60 NGOs focused on how SLCPs contribute to both global warming and air pollution. Its work with developing countries in particular highlights the opportunity for short-term reductions to have immediate impact on atmospheric warming and local air-borne illnesses. CCIC also stresses the impact on local food security because of SLCPs’ impact on agriculture production. The bottom line, says CCIC, is that

there is no way to the Paris goal without addressing SLCPs.

The webinar panelists describe several approaches to revising NDCs that include SLCP mitigation with other greenhouse gas emission targets. They include:

  • incorporating analysis of local air pollution into national climate change analysis, using the data collection and analytical methodology and tools developed under the UNFCCC;
  • approaching emission reductions by sector, because high CO2 producing sectors usually align with high SLCP production;
  • focusing on key high emission sectors, like energy and transport; and
  • aligning NDC targets with other environmental and sustainability goals, like decreased air pollution under national laws and HFC reductions under the Kigali Amendment to the ozone treaty

Ongoing NDC revision in Mongolia, Nigeria, and Cote d’Ivoire were featured in the webinar. Mongolia’s Prime Minister declared the country’s air pollution an economic development challenge in its Sustainable Development Goal review. The eight sectoral mitigation contributions in its revised NDC targets an overall 23% GHG reduction and is built on the country’s current air pollution reduction strategy. Nigeria’s NDC revision focuses on the priority sectors of energy (oil and gas), agriculture, industry, and transport, and is linking some 35 donors to support individual targets. Cote d’Ivoire has worked five years to integrate SLCPs into national planning, mapping key sectors where they are produced (household energy, transport, waste, agriculture, oil and gas production), and now establishing baselines and reduction measures for inclusion in their 2020 NDC revision.

NEWSFLASH: COP26 postponed due to COVID-19

While thinking and writing more broadly about the pandemic and its implications for climate change, I pause to share this news just announced by the COP26 presidency. The UK says that COP26 will be delayed until sometime in 2021, still taking place in Glasgow, Scotland and with the pre-COP still being held in Milan, Italy. The mid-year “intersessional” meeting, called SB52, scheduled for Bonn in early June, has been tentatively rescheduled for October 4-13, 2020.

UN Climate Change Executive Secretary Patricia Espinosa said:

COVID-19 is the most urgent threat facing humanity today, but we cannot forget that climate change is the biggest threat facing humanity over the long term. Soon, economies will restart. This is a chance for nations to recover better, to include the most vulnerable in those plans, and a chance to shape the 21st century economy in ways that are clean, green, healthy, just, safe and more resilient.

The Guardian reports that COP26 President elect, Alok Sharma, “held crunch talks” with the key COP players, including the COP Bureau, the UNFCCC Secretariat, and UK and Italy representatives. While all recognize the extraordinary conditions of the pandemic, many climate change leaders opposed rescheduling, especially this far in advance.

Nicholas Stern had urged Boris Johnson to keep the negotiations on track. “At the moment we must just get on with the preparation. This is such an urgent challenge and there is so much to do, and so much valuable work that is being done, that we can’t afford to lose the momentum.” Yvo de Boer, COP15 president, agreed, observing that “if it is going to be cancelled, that should only be done at the last possible minute – in October.” Christiana Figueres, former UNFCCC Executive Secretary, had lobbied for keeping COP26 on track, given the need to peak emissions this year to stay within the 1.5C goal and to maintain pressure on member countries to “ramp up their targets in line with the steep emissions decline we need to see in this decisive next decade.”

But several climate change insiders see a silver lining. Some had observed the late start of the UK presidency – long before the pandemic – on the diplomatic push needed to succeed at COP26. Others pointed to the cancellation or shifting on-line of COP sub-body meetings in March and April and its knock-on effect of slowing down technical work. Giving the UK and Italy time to cope with COVID-19 and reset diplomatic and logistical preparations into 2021 could only help. (Of note: the COP26 venue, the Scottish Events Campus, is currently set up to serve as a temporary hospital for pandemic patients.)

Several point specifically to opportunities coming down the pike between now and a 2021 COP26. John Sauven of Greenpeace UK underscores the potential for government stimulus packages enacted between now and COP26 to “advance progress on tackling the climate emergency.” Many unnamed activists see the potential for a new US president elected on November 3, 2020 to bring the US back into the Paris Agreement. New scientific data will also be available in early 2021. Working Group I’s contribution to the IPCC’s new assessment report, AR6, is due to be published in April 2021.

The power in, and of, NDCs

The Paris Agreement is built on Nationally Determined Contributions or NDCs. In them, country parties pledge what they will do within their borders to help keep global temperature rise “well below” 2C. Most developed country NDCs are based on economy-wide mitigation targets, like the EU’s 40% reduction in GHG emissions by 2030 from a 1990 baseline. Most developing countries seek mitigation through sectoral pledges, like conserving additional forest acreage and increasing the share of renewable energy (RE) used to make electricity. The World Resources Institute (WRI)’s recent webinar, Enhancing NDCs in 2020: Opportunities in the Power Sector, spotlighted opportunities for revising NDC energy sector targets. Importantly, it emphasized moving beyond simply increasing RE targets to swiftly decrease emissions during the next decade.

Globally, the energy sector still produces the majority of GHG emissions, even though some countries have moved almost completely off fossil fuels. UNEP underscores, in its 2019 annual gap report, that this sector has the highest potential for making big impact reductions by 2030. It outlines five energy transition options, including expanding RE for electrification and phasing out coal, decarbonizing transport (via electric mobility) and energy-intensive industries (like steel and iron production), and avoiding future emissions while improving energy access.

This webinar’s experts — from the International Energy Agency (IEA), National Renewable Energy Laboratory (NREL) of the US Department of Energy, and, of course, WRI — emphasized the importance of NDCs addressing grid flexibility, existing coal assets, “institutional changes,” and synergies between power generators and end users. They gave specific examples of how countries can revise in 2020 to connect these energy sector strategies with specific NDC targets, like:

  • increasing energy storage and smart meter deployment by specific amounts;
  • referencing strategies for addressing stranded coal assets;
  • restructuring power institutions and markets; and
  • doing cross sectoral planning, e.g. between electricity production, efficiency, and end users.

WRI has recently issued this working paper that captures recommendations for specific NDC enhancements for the power sector (as well as for transport, agriculture, and forestry.)

IEA, which produces the World Energy Outlook each year to help policymakers make informed national policies over a 20-year horizon, points out that RE represents the vast majority in new construction.

But legacy coal-fired plants, predominantly in SE Asia, are relatively young (average age of 14 years old) and contribute to 1/3 of global GHG emissions.

According to IEA, getting to net zero by 2050, will require tackling these legacy coal-fired plants byretrofitting the with CCS, transitioning their production use, and retirements.

NREL gave specific examples of its capacity building work in Mexico (long range planning, RE integration, aggregating large industrial demand) and in Vietnam (data sets, grid modeling, private sector investment, bulk power purchase plans, and apparel manufacturers to aggregate demand for retrofits of major industrial parks with RE and EE). Through this work, NREL is building regional and professional networks for sharing best practices.

The Grid RE Community of Practice (CoP) targets knowledge sharing and technical assistance in Asia and Africa.

The New Global Power System Transformation consortium brings together power system operators from around the world, because they are the ones implementing these changes, especially integrating large amount of RE into their grids.

Tort law in US climate litigation

Webinars can provide a high impact/low carbon footprint way of learning. The current pandemic makes them all the more useful. I will regularly feature a few that I attend, highlighting organizers who pack the most learning per hour for me.

This week the Center for Progressive Reform spotlighted US state tort law’s role in holding the fossil fuel industry accountable for climate change harms. Panelists included Noah Oppenheim of the Pacific Coast Federation of Fishermen’s Associations, Karen Sokol of Loyola University New Orleans College of Law, and Alexandra Klass of the University of Minnesota Law School (my alma mater: Go Golden Gophers). Collectively they describe how this kind of climate change litigation uses run-of-the-mill tort law to hold people responsible for behavior that breaches social norms and harms others. In this way, it can be seen as but one kind of climate change policy tool, along with legislated carbon taxes, tax departments’ renewable energy credit incentives, and international cooperation.

Noah highlighted the latest research on climate change impacts on fisheries and how it both compels and supports the lawsuit brought by members of the Pacific fishing industry. Karen described recent developments in state climate tort actions more broadly and put them in the context of other domestic and international climate litigation. Noting the current prevalence of coastal US lawsuits, Alexandra analyzed the potential for climate lawsuits in midwestern states. You can watch the webinar here.

A few of my takeaways:

  • As recounted by Noah, the logic of Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp follows the traditional 4-part path of a negligence suit: a defendant (actually a boat load of large petroleum companies – bad pun intended) alleged to have breached a duty of care (knowingly creating products that produced GHGs and led to ocean warming) to commercial fishers who have experienced financial harm (closing of Dungeness crab fisheries) caused by this breach (warm oceans produce a toxin that ends up in crab tissues that keep people from eating them and fishers not being able to catch and sell them).
    • Interestingly, the case’s five causes of action extend beyond a general claim of negligence to strict liability for failure to warn and for design defect, negligent failure to warn, and nuisance. 
    • In addition to compensatory damages (the most typical relief sought in tort suits), the Federation seeks equitable relief like abatement of the nuisance (meaning GHG mitigation), and punitive damages and disgorgement of profits.
    • The case was filed in California state court in 2018, but defendants are seeking removal to federal court. These preliminary motions are pending.
  • Karen pointed out that all other state torts suits in the US have been brought by state and local governments. They too allege beyond negligence to strict liability forms and nuisance, and point to specific climate change harms that can be monetized.
    • Plaintiffs include counties (San Mateo, CA; Boulder, CO; King, WA; and Santa Cruz, CA), cities (Baltimore, NYC, Oakland), and states (Rhode Island, Hawaii).
    • The Baltimore case made headlines on March 6 when the Fourth Circuit Court of Appeals ruled unanimously that it belongs in state, not federal court. The decision permits the state tort actions to go forward to trial, most importantly to discovery. While not binding on the other federal circuits with removal motions pending, it is anticipated to be influential.
    • Per the Baltimore City Solicitor: “We look forward to having a jury hear the facts about the fossil fuel companies’ decades-long campaign of deception and their attempt to make Baltimore’s residents, workers, and businesses pay for all the climate damage they’ve knowingly caused.”
  • Alexandra opined that the nature of climate change impacts and local politics may have delayed midwestern state and local governments from bringing state tort actions.
    • The damages are different than in coastal areas, e.g. arising from river flooding, affecting wastewater treatment, agriculture, as well as real and personal property.
    • Although the midwest is viewed as more conservative politically, midwestern attorneys general have signed on to climate change suits as amici.
    • Minnesota has a very strong consumer protection laws and brought its own tobacco suit in the 1990s, going to trial and settling during jury deliberation for $6.6 billion.
    • Parallels for these climate change tort actions can be drawn from the tobacco litigation based on public nuisance, and the recent opioid cases brought in Ohio and Oklahoma.

All three expect more cases to be filed in state courts, as decisions on procedural questions like removal are decided in this first wave. While most plaintiffs will be cities and counties due to their more like-minded views on climate change, Virginia was predicted as the next state plaintiff. Several referred to CPR’s State Courts and the Fight for Equity and Grantham’s 2019 snapshot of Global Trends in Climate Change Litigation.

Either explicitly or implicitly, all three speakers relied on two key databases for tracking climate change litigation in the US and globally. I do to too and encourage you to explore them.

  1. the “climate case chart,” originally created by Arnold & Porter and now jointly maintained with the Sabin Center for Climate Change Law at Columbia University (the common denominator being Michael Gerrard)
  2. the “climate change laws of the world,” published by the Grantham Research Institute on Climate Change and the Environment originally in partnership with GLOBE (the common denominator being Sir Nicholas Stern).

Survey says? Add your voice on how to shape a “2020s Green Breakthrough”

Dual Citizen, a consulting firm based in the US, invites you to take this short survey polling specific ways governments, investors, businesses, and individuals can reduce GHG emissions quickly in the next decade. I found the questions thought provoking because the provided answers were quirky at times, at various levels of altitude – and since you can only choose one, forced me to prioritize for the short term. (The survey designers also offer an Other ______, where you can go more free form.) Dual Citizen publishes an annual GGEI or Global Green Economy Index that seeks to measure both performance and perception of countries’ “green economies.” This Green Breakthrough survey will be reported separately.

Give it a go. Soon. This survey closes on April 1. No fooling.

Putting Climate Change (and COP26) in Context

Our friends at IISD – those indefatigable PhDs who sleep little and write lots at MEA meetings around the world – have produced a report that captures their take on where global environment governance is at the start of 2020. Just as the ENBs produced by these deeply informed chroniclers diplomatically yet accurately recount the daily essence of a given COP, The State of Global Environmental Governance 2019 provides a balanced view of the highs and lows of last year’s developments across the full panoply of multilateral environmental governance.

A common starting point for both: “In 2019 scientists were truth-tellers.” The report notes how many scientific reports were produced in 2019, providing data on which policymakers could act. The handful highlighted by IISD:

“Scientific bodies successfully produced a series of reports, each drawing stark conclusions for the fate of the planet. For many, this led to the question of whether the multilateral system is able to mount an effective response.”

With that jumping off point, the glass half full moments include:

On the half empty side, the report starts with another general premise:

“2019 unfolded amid rising nationalism and weakening multilateralism,” citing Japan’s departure from the International Whaling Commission, US withdrawal from the Paris Agreement, and the UNEA’s inability to agree just to discuss the need for global governance of emerging technologies for CO2 removal and solar geoengineering.

With that starting point, the empty glass is unsurprisingly brimming with global environmental governance “misses” for 2019, including:

“Observers across processes increasingly note a lack of good faith in negotiations. A few countries seem increasingly willing to block progress, leading some to worry that progress might only be achievable in the context of ‘coalitions of the willing’ or ‘club diplomacy’ rather than in more inclusive forums such as UNEA and MEAs.”

One hopeful sign in the evolution of governance of global environmental problems is increasing understanding of the linkages between specific treaties.

“While 2019 showed just how difficult it can be to manage issues across agreements, many view focusing on interlinkages across issue areas as a way to raise the ambition of the system as a whole.”

This report highlights six linkages with potential to make global environmental governance more effective:

  • the Global Pact for the Environment, introduced by the French government just after adoption of the Paris Agreement, is intended to address gaps in existing global environmental governance by establishing formal linkages between MEAs through a legally binding third international covenant that codifies the principles expressed in the Rio Declaration. The report applauds focused discussion on “the need to promote policy coherence across environmental instruments, enhance collaboration and cooperation among governing bodies and secretariats of MEAs, and strengthen system-wide inter-agency cooperation on the environment.” It also points out that a legally binding outcome is no longer on the negotiation table.
  • the linkages between the ocean and climate change noted in the first “Blue Paper” produced by the High-Level Panel for a Sustainable Ocean Economy, including oceanic renewable energy, emissions from shipping, climate change impacts on coastal and marine ecosystems and fisheries, and carbon sequestration in the seabed. While Chile took this up when framing COP25 as a “Blue COP,” the outcome was tepid (a 2020 dialogue in the COP decision, not the start of a focused work programme that was sought).
  • the BBNJ is intended to comprehensively protect marine life by tending to the gaps and overlaps in governance contained in the Convention on the Law of the Sea and the International Seabed Authority, the Convention on Biological Diversity, regional fisheries management organizations, the Food and Agriculture Organization, and the International Maritime Organization. But negotiations thus far have shown a lack of consensus on whether the BBNJ should be a higher level governance tool or one that complements the current array.
  • while the climate and biodiversity conventions both emerged from Rio in 1992, they have done their work on distinct tracks since then. The IPCC’s SRCCL underscored the need for more coherent policy making between the two. The IPBES agreed and formally requested in 2019 joint research projects with the IPCC, but the IPCC, citing workload, demurred.
  • discussion about linking trade and the environment has increased post-Paris Agreement, as have those about climate change and human rights.
  • the Sustainable Development Goals (SDGs), at five years old, are seen as “bringing environmental aspirations together with the social and economic aspects of development” and, in 2019, “a rallying point for emerging global issues.” While all but SDG 8 (decent work and economic growth) are not on track to make their 2030 targets, the SDGs overall are seen as a “useful framework to reveal the linkages among environmental, social, and economic sustainability. Such awareness reveals the need to address MEA targets in a way that also consider economic and social realities.”

“It’s perhaps predictable that science would identify the interconnections of the natural world while political responses would struggle to keep pace. As the past year showed, drawing the (scientific) connections was not entirely sufficient for political progress. However, recognition of these connections, as well as progress to address them, constitutes at least small steps toward improving the system as a whole.”

2020 is expected to be a big year for global environmental governance. Not only will the SDGs mark their fifth anniversary having fully reviewed actions taken on all 17, but the UN will kick off the Decade of Action for SDG implementation. The Paris Agreement on climate change officially begins operation, with revised NDCs showing increased ambition due in. And the post 2020 biodiversity framework under the CBD should be completed. This IISD report helps us step back from our individual MEA silos to see the big and sobering landscape of 2019 hits and misses, to see what can be achieved in this year and the decade to come.

Climate litigation updates: Oh Canada!

Closer to my Green Mountain home, three appellate courts in Canada have now ruled on the constitutionality of the country’s Greenhouse Gas (GHG) Pollution Pricing Act. The Courts of Appeal for Ontario and Saskatchewan have held it constitutional while the Court of Appeal for Alberta has held the opposite. The Canadian Supreme Court will hear argument on this split at the end of March.

While the three decisions together reference the Paris Agreement almost 90 times, they do not significantly rely on it when determining whether Parliament’s legislative act violates Canada’s constitutional separation of powers between federal and provincial governments.

All three cases, brought by a combination of provincial and subregional governments, First Nations, and NGOs, rest on a similar view of the Act’s legislative history that references the importance of the Paris Agreement. As the Ontario appellate court writes, “Canada’s commitments under the Paris Agreement were part of the impetus for the Act.” The historical timeline for the Act’s genesis generally goes like this:

  • Canada adopted the Paris Agreement in 2015 and made its NDC pledge to reduce GHG emissions by 30% below 2005 by 2030.
  • The Vancouver Declaration on Clean Growth and Climate Change expressed this international engagement, and connected the need to mitigate climate change with implementing GHG mitigation policies domestically to achieve the 30% target.
  • This declaration then led to the formation of a Federal-Provincial-Territorial Working Group on Carbon Pricing Mechanisms, which produced a report concluding that economy-wide carbon pricing is the most efficient way to reduce emissions.
  • This report in turn supported creation of the Pan-Canadian Approach to Pricing Carbon Pollution, which set a national benchmark for carbon pricing aimed at “ensur[ing] that carbon pricing mechanisms of gradually increasing stringency apply in all Canadian jurisdictions by 2018, either in the form of an explicit price-based system (i.e. a carbon tax) or a “cap-and-trade” system.”
  • In December 2016, eight provinces and the three territories adopted the Pan-Canadian Framework on Clean Growth and Climate Change, which explicitly included the benchmark.
    • British Columbia, Alberta, and Québec already had carbon pricing mechanisms.
    • Ontario intended to join the Québec/California cap-and-trade system.
    • Manitoba adopted it in February 2018.
    • Saskatchewan did not adopt it.
  • In March 2018, the Act was introduced in Parliament as part of the Budget Implementation Act, 2018, No. 1 It received Royal Assent three months later.

The Courts of Appeal for Ontario and Saskatchewan ruled the Act constitutional in 2019, grounding their conclusion on Parliament’s jurisdiction to legislate on matters of “national concern” under the “Peace, Order, and good Government” (“POGG”) clause of s. 91 of the Constitution Act, 1867. Why? Because Parliament had established that atmospheric accumulation of GHGs “poses an existential threat to human civilization and the global ecosystem” and the impact on Canada is “particularly acute.” The need for a collective approach to this threat presents “a matter of national concern, and the risk of non-participation by one or more provinces, permits Canada to adopt minimum national standards to reduce GHG emissions.” The charges imposed by the Act are also constitutional because they are “regulatory in nature and connected to the purposes of the Act. They are not taxes.” The Alberta court of appeal roundly refuted this constitutional analysis in its February 2020 decision. Each of these courts analyzed the “pith and substance” of the Act to determine how it fits within the Constitution’s definitions of federal power.

The Court of Appeal for Ontario concluded that:

“The purpose of the Act, as reflected in its Preamble and in Canada’s international commitments and domestic initiatives, discussed earlier, is to reduce GHG emissions on a nation-wide basis. It does so by establishing national minimum prices for GHG emissions, through both the fuel charge and the OBPS excess emissions charge. Its effect is to put a price on carbon pollution, thereby limiting access to a scarce resource: the atmosphere’s capacity to absorb GHGs. The pricing mechanisms also incentivize behavioural changes.”

“A harmonious reading of the Act, which itself confines its operation to the creation of a national minimum pricing scheme to address a national and international concern, permits it to operate concurrently with provincial laws applicable to the environment in general, and to the reduction of GHG emissions in particular.”

In sum: The Act establishes “minimum national standards to reduce greenhouse gas emissions” and uses “a minimum national standard of stringency for the pricing of GHG emissions.”

The Court of Appeal for Saskatchewan drew the same conclusion on the same constitutional grounds, but grounded the national act more specifically in Canada’s international treaty obligations.

“In very general terms, the Act is self-evidently aimed at GHG pricing. This is revealed by several considerations. The first is the broad context in which it was enacted. That context can be traced directly back to the Framework Convention ratified by Canada in 1992 and the Kyoto Protocol, the Copenhagen Accord and the Paris Agreement, which followed. All had the same central objective, i.e., the limitation of global GHG emissions. The Act is the product of Canada’s efforts to meet its commitments under the Paris Agreement.”

The Court of Appeal for Alberta did not find any constitutional basis for the federal act, noting how rarely Parliament’s peace, order and good government power has been used. (Only 6 uses of it, with 3 during the temperance period!). This February 2020 ruling recognized the urgency expressed in the international climate regime, and carefully analyzed the legal architecture and impact of the Paris Agreement. But it viewed the federal Act as a “constitutional Trojan horse.”

“Assigning this Act or a class of laws of this nature to Parliament would forever alter the constitutional balance that exists between the heads of power allotted to Parliament and the provincial Legislatures in the federal Canadian state. None of the cases in which the national concern doctrine has been successfully invoked contemplates a wholesale takeover of a collection of clear provincial jurisdictions and rights. But this Act does. There is no principled basis to judicially expand the heads of federal powers to concentrate such extensive law-making powers in Parliament. We take no issue with the federal government’s virtuous motives for the Act; we are assessing only its constitutionality under division of powers. … Buried within it are wide ranging discretionary powers the federal government has reserved unto itself. Their final shape, substance and outer limits have not yet been revealed. But that in no way diminishes the true substance of what this Act would effectively accomplish were its validity upheld. Almost every aspect of the provinces’ development and management of their natural resources, all provincial industries and every action of citizens in a province would be subject to federal regulation to reduce GHG emissions.”

Noting Alberta’s contribution to Canada’s GHG emissions (1/3 of Canada’s total, with tar sands emissions accounting for 1/4 of Alberta’s GHG ouput), the court of appeal opined in dicta that Parliament action – “this assault on provincial jurisdiction” – “could only be justified if Parliament validly claimed an environmental emergency that threatened life as we know it on planet earth and required an immediate and comprehensive response to dangerously high levels of greenhouse gas emissions.”

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