Climate Crime at the ICC – Environmental Justice through the Looking Glass

(reposted with permission from https://law.lclark.edu/live/blogs/177-climate-crime-at-the-icc-environmental-justice, originally posted on January 13, 2022)

It is a fact, as well as a universally accepted view, that climate change has been caused primarily by western nations while poor and already disadvantaged nations have suffered disproportionately and will be more impacted in the future.[1] Climate burdens “fall disproportionately on individuals and populations least responsible for causing them and raise serious concerns about justice.”[2]

To make matters worse, the more affluent nations who have largely caused climate change often take an “after you” approach to the global south, a position where they assert they will not make meaningful emissions reductions unless poor countries do so first.[3]

The world has known since the 2018 IPCC report Global Warming of 1.5°C that the difference between 1.5°C and 2°C is equivalent to “hundreds of millions” of deaths.[4] Therefore it is important to have a public discussion regarding criminal accountability. But in doing so it is critical that questions of who has caused the problem, and who will bear the brunt of the impact, be kept at the fore of any such analysis.

While there are various definitions of Environmental Justice (“EJ”), it may be more helpful to look at what are widely accepted concepts, or elements of EJ. Four have long been accepted: 1. distributive justice, 2. procedural justice, 3. corrective justice and 4. social justice.[5] A fifth factor has recently been accepted – recognitional justice.[6]

Recognitional justice requires recognizing differences “between society’s dominant and subordinate groups” and to “acknowledge the institutionalization of unconscious biases, exclusionary processes, and normative judgments” that work through social structures to “manifest [in] racially disparate outcomes.”

Distributive justice is about the fair and equal distribution of both costs and benefits, while procedural justice is about how you get there.[7]

Finally, a concept which is fundamental to EJ is “we speak for ourselves.”[8] This is also connected to recognitional justice.

The crime of ecocide should not be taken up by the ICC as is because it would violate these EJ principles and exacerbate the wrongs and imbalances which have driven climate change. While the application of criminal law to climate change is a worthy endeavor, other solutions should be found which are in keeping with principles of EJ.

This post will focus on an EJ critique of ecocide at the ICC, in the context of climate change. It will end with brief preliminary suggestions for other tools, but not go in depth on that. EJ is used instead of Climate Justice (“CJ”), because there may be less certainty regarding the newer evolving term CJ.

Back story

A potential new crime at the International Criminal Court (“ICC”), “ecocide,” is the topic of much discussion lately, as the ICC was presented with a definition for adoption in June of this year.[9] However, questions have arisen about whether that is a wise course of action, especially in relation to climate change.[10] Despite widespread support among the environmental movement, a number of issues have been raised with the crime of ecocide. The key critique here is the racial and economic imbalance in ICC prosecutions. All 42 of the indictments issued by the ICC have been against Black and/or Arab Africans.[11]

The main explanation for this is that the Rome Statute was designed to be a court of last resort, and so is functioning as it should.[12] Implicit in that is that the crimes the ICC was created to address – mass atrocity violence[13] are not being committed in the western states due to the rule of law. While this may be debatable from an Indigenous or Black perspective, it is likely a widely accepted view.

Regarding climate change, however – that view is turned on its head.

Recognitional justice demands that our history be acknowledged

Professor James Thuo Gathii has pointed out that Third World Approaches to International Law (TWAIL) scholarship “contests the idea that international law is applicable everywhere and that we should therefore regard it as a view from nowhere” and challenges international law’s failure “to engage in its complicity in histories of colonization, plunder, and enslavement—whose legacies continue to date.”[14]

This engages recognitional justice, and the issue of race must be confronted openly.[15] In contemplating a crime of ecocide at the ICC, as it relates to climate change, the historical and present role of international law in creating imbalances of wealth and power must be frankly considered.[16]

Procedural unfairness

There are limits on ICC jurisdiction which create unfairness as they relate to climate change and ecocide. One is temporal – crimes cannot be retroactive, and so prosecutions for ecocide can only occur for actions after it is listed as a crime in the Rome Statute.[17] Western nations have had more capacity to slow GHG production[18] and while not all of them have, such as Canada, the UK has made significant progress.[19] Poorer countries will take longer to bring emissions down as they need energy to develop.[20] This leaves them potentially more vulnerable to a new crime of ecocide at the ICC as it relates to climate change, and therefore exacerbates unfairness and is contrary to corrective justice.

A further limitation is capacity/ willingness to prosecute, addressed in Article 17 of the Rome Statute, which says that a case is only admissible where, “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”[21]

This means that the ICC will only prosecute where it determines that there is a lack of capacity or willingness to do so. It has been described as requiring the “admission of state incapacity and dependence.”[22] In the context of climate change this is another barrier against any prosecution of Western nations and violates the principle of procedural justice.

A corrective INjustice if the biggest emitters walk

Regarding climate change would the ICC be likely to prosecute on the basis of having caused the most harm, and what would that look like? Or would the complicity of international law, mentioned above, be repeated by the ICC in pursuing justice for climate change impacts, by “picking the lowest hanging fruit”?[23]

There are two ways to be prosecuted by the ICC, one is to be a signatory to the Rome Statute (to have surrendered to the jurisdiction of the court), and the other is to have a case forwarded by the UN Security Council (UNSC).[24]

The top three historical emitters, who have contributed the most to global climate change, are the USA, China, and Russia. [25] None are signatories to the Rome Statute, [26] and all three are permanent members of the UNSC, and consequently have a veto.[27] Therefore the only way for persons from those three nations to be prosecuted by the ICC for ecocide as it relates to climate change is if the UNSC forwards the case, and they do not block it by veto.

This is also where “realpolitik” comes into play.[28] Germany is the 4th largest emitter historically, UK is 5th, France 7th and Canada is 9th (as of 2011).[29] Does anyone really think the ICC will prosecute their leaders?

An answer to that can be predicted by looking at the past. In asking if the Prime Minister of the UK is likely to be prosecuted, one can simply ask, was Tony Blair prosecuted for the illegal invasion of Iraq? The ICC, and the UK’s highest court, have decided that he will not.[30] While the exact figure is unknown, it is clear that hundreds of thousands of civilians died in that war.[31] The UK is subject to ICC jurisdiction, but as EJ advocates may point out, Tony Blair is white, and comes from a Western European nation.

As further evidence of this divide, when the ICC hinted at investigating the USA for crimes in Afghanistan then-president Trump issued sanctions against the two black African members of the ICC Office of the Prosecutor. While Biden has withdrawn them, he has otherwise remained in lockstep with Trump and former administrations in saying that US nationals will not be subject to the ICC because the US is not a party (even though the US supports ICC jurisdiction against other non-parties).[32]

Prosecution for ecocide as it relates to climate change is virtually impossible against the three largest historical emitters, and hard to imagine for the top ten, other than, perhaps – India.

It would be the opposite of corrective justice to prosecute leaders or citizens of poorer countries, who have contributed the least, and already pay the most, while those who have done the most harm escape justice.

“We speak for ourselves” – a just process must be driven by developing nations

EJ nations and people must be allowed to speak for themselves. While it is true that African nations were drivers of the creation of the ICC,[33] there is now widespread and justified dissatisfaction.

The right international / UN body to address this could be the UN General Assembly, where there is “one nation one vote,” or a forum convened by those nations most impacted by climate change.[34]

If justice were the only concern, and the realities of global power were not, perhaps the most equitable solution would be a new tribunal similar to the International Criminal Tribunal for Yugoslavia, or that model, but brought and governed by the world’s poor, and with jurisdiction over the Western nations who have created the problem.

To be in keeping with basic principles of EJ, any international crimes or processes created to address climate change must recognize our structural differences and shared history. It must recognize the massive wealth created by and for the Western world in the course of creating the climate problem, the massive suffering of the world’s poor and people and nations of color as a result of it, and the social injustice of climate change. Most importantly it must be corrective – aimed at addressing that imbalance, not worsening it.


[1] Henry Shue, Climate Justice: Vulnerability and Protection, Oxford University Press, Oxford, UK, (2014) p. 4; Fiona Harvey, July 15, 2021, Move faster to cut emissions, developing world tells rich nations, The Guardian, online: https://www.theguardian.com/environment/2021/jul/15/move-faster-to-cut-emissions-developing-world-tells-rich-nations.

[2] Christopher Preston & Wylie Carr (2018) Recognitional Justice, Climate Engineering, and the Care Approach, Ethics, Policy & Environment, 21:3, 308-323, DOI: 10.1080/21550085.2018.1562527.

[3] Shue, H. (2014) Climate justice: vulnerability and protection (1st ed.). Oxford, UK: Oxford University Press, pp. 63-70.

[4] David Wallace-Wells, The Uninhabitable Earth, Crown Publishing, New York, 2019, p. 28; Global Warming of 1.5°C: IPCC, 2018: Global Warming of 1.5°C.An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. In Press, online: https://www.ipcc.ch/site/assets/uploads/sites/2/2019/06/SR15_Full_Report_Low_Res.pdf, pages 157 and 464.

[5] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), pp. 9-18, 22; Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envtl. L. Rep. 10,681 (2000).

[6] Candice Youngblood, Put Your Money Where Their Mouth Is: Actualizing Environmental Justice by Amplifying Community Voices, 46 Ecology L. Q. 455 (2019).

[7] Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ENVTL. L. REP. News &

Analysis 10681 (2000), p. 10683 – 10684.

[8] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), p. 25.

[9] Ian Profiri, June 23, 2021, “Legal experts present definition of ecocide for adoption by ICC,” Jurist, online: https://www.jurist.org/news/2021/06/legal-experts-present-definition-of-ecocide-for-adoption-by-icc/ .

[10] Sara K. Phillips, 9 July 2021, Unpacking “ecocide”: a note of caution for international criminalization, Stockholm Environment Institute, Perspectives, online: https://www.sei.org/perspectives/unpacking-ecocide-international-law/ .

[11] Ibid, also see Kamari Maxine Clarke, July 24, 2020, Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequality, Just Security, online: https://www.justsecurity.org/71614/negotiating-racial-injustice-how-international-criminal-law-helps-entrench-structural-inequality/; Randle C DeFalco, Frédéric Mégret, 10 June 2019, The invisibility of race at the ICC: lessons from the US criminal justice system, London Review of International Law, Volume 7, Issue 1, March 2019, Pages 55–87, https://doi.org/10.1093/lril/lrz002; Also see the full list of indictees here: https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court#Vincent_Otti

[12] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) – Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 56.

[13] Clarke, supra note 11; Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 MICH. J. INT’L L. 195 (2020), p. 211.

[14] Gathii, J. (2020). Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix). Proceedings of the ASIL Annual Meeting, 114, 165-187. doi:10.1017/amp.2021.87, p. 2.

[15] Owiso Owiso, 19 April, 2021, ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court, Opinio Juris, online: http://opiniojuris.org/2021/04/19/icc-sanctions-symposium-the-united-states-of-america-racism-and-sanctions-meet-at-the-international-criminal-court/; Kerr, supra note 13, page 213.

[16] John Reynolds & Sujith Xavier, The Dark Corners of the World, 14 J. INT’l CRIM. Just.

959 (2016), pp. 982-983.

[17] Rome Statute Article 24; although there may be more flexibility to this than first meets the eye, see Gerhard Kemp, “Climate Change, Global Governance and International Criminal Justice” published in Climate Change: International Law and Global Governance Volume I: Legal Responses and Global Responsibility, eds. Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting, Nomos Verlagsgesellschaft mbH, (2013) pp. 717-718, online: https://www.jstor.org/stable/j.ctv941w8s.

[18] Shue, supra note 1, p. 5.

[19] Climate Action Tracker: Canada, online: https://climateactiontracker.org/countries/canada/ ; Climate Action Tracker: UK, online: https://climateactiontracker.org/countries/uk/.

[20] Shue, supra note 1, p. 27-36.

[21] Rome Statute of the International Criminal Court art. 66 ¶ 3, July 17, 1998, 2187 U.N.T.S. 90., Article 17; Kerr, supra note 13, p. 195.

[22] Clarke, supra note 11.

[23] Frazer, J. (2015, Jul 24). International courts and the new paternalism; African leaders are the targets because ambitious jurists consider them to be ‘low-hanging fruit.’ Wall Street Journal (Online) Retrieved from https://library.lcproxy.org/login?url=https://www.proquest.com/newspapers/international-courts-new-paternalism-african/docview/1698490328/se-2?accountid=25203.

[24] Clarke, supra note 11.

[25] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[26] International Criminal Court, Signatories to the Rome Statute, online: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[27] United Nations Security Council, Current Members, online: https://www.un.org/securitycouncil/content/current-members.

[28] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) – Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 57.

[29] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[30] International Criminal Court, 4 July 2016, “Statement of the Prosecutor correcting assertions contained in article published by The Telegraph,” online: https://www.icc-cpi.int/pages/item.aspx?name=160704-otp-stat; International Criminal Court, 9 December, 2020, “Preliminary examination, Iraq/UK, (Closed – decision not to proceed),” online: https://www.icc-cpi.int/iraq; Owen Bowcott, July 31, 2017, “Tony Blair prosecution over Iraq war blocked by judges,” The Guardian, online: https://www.theguardian.com/politics/2017/jul/31/tony-blair-prosecution-over-iraq-war-blocked-by-judges.

[31] Wikipedia, Casualties of the Iraq War, online: https://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War#PLOS_Medicine_(2013).

[32] Owiso Owiso, 19 April, 2021, ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court, Opinio Juris, online: http://opiniojuris.org/2021/04/19/icc-sanctions-symposium-the-united-states-of-america-racism-and-sanctions-meet-at-the-international-criminal-court/.

[33] Kerr, supra note 13, p. 198.

[34] A modification to the Rome Statute has been suggested where the UNGA could refer cases directly, see Alexandra Zavis and Robyn Dixon, Q&A: Only Africans have been tried at the court for the worst crimes on Earth, LA Times, online: https://www.latimes.com/world/africa/la-fg-icc-africa-snap-story.html.

IPCC AR6 WGII – the good news? Pushing for justice works.

Many people saw the February 28, 2022, IPCC report, IPCC AR6 WGII, Climate Change 2022: Impacts, Adaptation, and Vulnerability (IPCC AR6 WGII), as bad news, but in my view the bad news already happened. The bad news is – we are almost out of time, and we are already feeling impacts which will only get worse over time. We knew that.

This post is about the good news from the IPCC AR6 WGII. It’s good when the IPCC talks about the really bad news, and embraces civil society course adjustments. In these comments I’m relying on the Summary for Policy Makers.

1) Mental health is mentioned twelve times, and defined as “’Mental health’ includes impacts from extreme weather events, cumulative events, and vicarious or anticipatory events.” And saying “Climate change has adversely affected physical health of people globally (very high confidence) and mental health of people in the assessed regions (very high confidence).” (p. SPM 35)

This is big for climate litigators, who have been mentioning this issue for a while to courts, with little positive response. Now they can say that even the IPCC, a fairly conservative global scientific body, agrees that this is an issue worthy of consideration. And this report is signed by virtually all the nations of the world.

The definition is helpful because this is how climate mental health issues happen – people are worried about, or effected by, “vicarious or anticipatory events” and now you can litigate it and be taken a little more seriously.

2) Indigenous people had more of a role in making this report, and impacts to Indigenous people are highlighted throughout, noting that Indigenous people can be more seriously and frequently affected.

Again, this is stuff we’ve been screaming into the climate litigation void for years – now it can be said that the IPCC also thinks this is important.

It can also be argued that a consultative role regarding climate is supported by the way the IPCC did this, because the IPCC did consult Indigenous peoples, and because the impacts are so strongly highlighted.

3) Climate justice issues are also brought to the fore, with such recommendations as “Inclusive governance that prioritises equity and justice in adaptation planning and implementation leads to more effective and sustainable adaptation outcomes (high confidence).” (p. SPM 30)

In this sense, combined with the above, this report tackles the root of the issues much more than before – governance, and how we make decisions together, and who has a right to be consulted, and tied into that – how it benefits everyone if we follow inclusionary processes at the earliest stages of decision making.

For instance: “SPM.D.2 Climate resilient development is enabled when governments, civil society and the private sector make inclusive development choices that prioritise risk reduction, equity and justice, and when decision-making processes, finance and actions are integrated across governance levels, sectors and timeframes (very high confidence).” (p. SPM 32)

Climate change is a justice problem, and we finally have the IPCC openly acknowledging that. Again, this makes it easier to litigate these issues.

Which all equals – all of the above, (the inclusion of mental health,  vicarious or anticipatory human concern, Indigenous and climate justice voices, both in decision making and in considering impacts) – this is what we (climate lawyers, scientists, civil society) have been pushing for. Now the IPCC has taken it up, leading to a much more just process, with better chances of positive outcomes, regardless of the other bad news. People may say it’s too little too late, but all we have is now, and if justice becomes the issue we are getting close to real change.

So, there’s actually a lot you can do. Pushing for justice works. Don’t stop.

European climate litigation successes: France (x2) and Ireland

There have been three major climate litigation victories in Europe in the last few months – two in France and one in Ireland. The cases are important nationally, but also internationally, as they set another example of nation-states being held accountable for a failure to meet climate targets.

What is the impact for Canada? Canadian courts are out of touch with climate change – there have been a few positive rulings on narrow cases, but all the big cases that are tackling the real global issue have been rebuffed (post coming on that next).

Most importantly – each case that is won (or even brought) in other states increases the pressure on courts at home to do the right thing. When you reference cases abroad in climate litigation the other side will invariably say, and the court may adopt, “that is not binding here (or even relevant)” but the truth is that we live in an international community, tied together by millions of legal agreements, economic, social, and political connections, and such rulings do have moral force. As they stack up they create pressure through embarrassment. And so, they are always worth referencing, and always worth bringing.

Regarding the two French cases, Louise Fournier, Climate justice lawyer at Greenpeace international, said “[w]hile the two legal actions are based on different laws, brought in different jurisdictions by different entities, in both instances it is about demonstrating that the State is not meeting its general and specific obligations to mitigate and adapt to climate change and that it does not respect its own climate targets.” (pers. comm.) It’s impressive to see two successful cases in one nation state in the same year, and an inspiration to climate advocates and litigators.

Case 1 – Commune de Grande Synthe v France

The first case in France came down last November, brought by the community of Grande-Synthe against the government of France for exceeding climate targets. The case is brought under the European Convention on Human Rights and EU Law. The court, the Conseil d’Etat, said in its statement :

On the merits of the case, the Conseil d’Etat has noted that while France has committed itself to reducing its emissions by 40% in 2030 compared to 1990 levels, it has, in recent years, regularly exceeded the “carbon budgets” it had set itself. Moreover, a decree of 21 April 2020 postponed most of the reduction efforts after 2020. Before final ruling on the request, the Conseil d’Etat is requesting the French Government to justify, within three months, how its refusal to take additional measures is compatible with the respect of the reduction path chosen in order to achieve the targets set for 2030.

The case was referred to the Conseil d’Etat after the community of Grande-Synthe received a refusal from the Government to take additional measures in order to meet the objectives of the Paris Agreement. The French government’s response is due sometime in March.

Case 2 – Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme v. France

The second case was brought by major ENGO’s Oxfam France, Greenpeace France et Notre Affaire A Tous, and la Fondation pour la Nature et l’Homme, and was driven by a petition which garnered 2.3 million signatures, the most ever in France’s history. This reflects the value of climate litigation which is citizen-driven. You can read the case in French here.

The Plaintiffs were also challenging the government’s failure to meet climate targets, and addressed them sector by sector, on the basis of civil responsibility. Paris’ administrative court, in finding a failure to meet targets which constituted a breach of French law, ordered the government to pay one euro to each of the ENGO’s, ruling that government failures “undermined the collective interests defended by each of the applicant associations.”

This is a nominal award, but the victory is a legal and ethical one, not a monetary one.

The Court’s statement said “[t]he judges examined whether there was a causal link between this ecological damage and the various breaches alleged against the state in the fight against climate change. They held that the state should be held responsible for part of this damage if it failed to meet its commitments to reduce greenhouse gas emissions.”

The connection between failure to meet targets (including ongoing ones) and responsibility, with financial and monetary implications, is an important one.

A lawyer on the case said “[t]his is the first recognition by the courts of the responsibility of the French State for its climate inaction.” Greenpeace summarized the importance of the case as:

It’s a victory of truth over the denial of the State, who has relentlessly claimed its actions are sufficient, despite evidence (GHG emissions consistently over carbon ceilings, reports from the High Council for the Climate, etc.). Today justice sides with all those who have been warning about the climate crisis for decades.

And;

The recognition of the State’s fault and responsibility is a crucial step to obtain a court order forcing the State to act.

The plaintiffs here Oxfam France, Greenpeace France et Notre Affaire A Tous, la Fondation pour la Nature et l’Homme) have also been accepted as intervenors (intervention volontaire) in the first case, Commune de Grande Synthe v France, before the Conseil D’État.

Case 3 – Friends of the Irish Environment v. Ireland

This case was first brought by Friends of the Irish Environment (FIE) in 2017 challenging the National Mitigation Plan as violating Ireland’s Climate Action and Low Carbon Development Act 2015 (“the Act”), the Constitution of Ireland, and obligations under the European Convention on Human Rights, particularly the right to life and the right to private and family life.

FIE lost at the first instance, and then on appeal asked the Supreme Court to skip the regular appeal steps due to the emergency nature of the case.

The Supreme Court granted appeal and allowed FIE to come straight to the Supreme Court. The Court then ruled in FIE’s favour, quashing the  National Mitigation Plan for lack of specificity, saying “a compliant plan must be sufficiently specific as to policy over the whole period to 2050.”

On the negative, the Court found that FIE lacked standing to bring claims under the Constitution or ECHR, and that FIE had not made a strong enough case for a right to a healthy environment.

To reflect that these climate cases are influential on other state courts, even if not binding (which they clearly are not) – the Irish Supreme Court here quoted and relied on the Urgenda case (The State of the Netherlands v. Urgenda Foundation (C/09/456689/ZA)), at para 5, to say;

this does not release the State from its obligations to take measures in its territory within its capabilities which in concert with the efforts of other states provide protection from the hazards of dangerous climate change.

Climate change litigation is unique, as David Hunter, Professor of international and comparative environmental law at American University’s Washington College of Law, aptly described it, “[t]he entire world is at once simultaneously both a potential plaintiff and defendant.” In Hunter’s view climate litigation is “mutually reinforcing” and this is how the international community is enforcing human rights under the Paris Agreement, informally, case by case. He also said that;

the debate over whether specific theories will prevail or what remedies can be fashioned in a specific case misses much of the significance of these litigation strategies. Just the acts of preparing, announcing, filing, advocating and forcing a response have significant impacts—and of course some will prevail.

Indeed – these three European cases will have an impact on climate litigation here in Canada, whether “the other side” admits it or not. This is how we – climate advocates – are enforcing our respective nation’s climate targets under Paris.

A final note – FIE are also bringing a case challenging an LNG terminal on the basis of climate change. This is another case to watch, as well as Torres Straight Islanders v Australia, Sacchi v Argentina, and others in Brazil, France, and elsewhere.

“Keep it in the ground” in a global international agreement (Part III)

The question from my last post, which was a while ago (I started an LLM, which has kept me busier than expected) – was how to write “keep it in the ground” into international agreements.

The notion of keeping it in the ground is simple;  if a nation commits to reduce GHGs by 5% per year, they reduce their fossil fuel production by that amount. There are no loopholes, no trade-offs, no caveats – just results. The result of such a policy is GHG production declines, and we have a chance.

Every other “solution” – carbon taxes, cap and trade, market mechanisms of every kind, involve trade-offs and inevitable loopholes. The difficulty with “keeping it in the ground” is political, because of its lack of loopholes it confronts the will to actually change. At the international level that challenge is only multiplied, as every nation will look to the other’s refusal to comply.

Today, for instance – both Canada and the USA have made some measures towards curbing GHG’s, and some limited progress. Yet, since 1996, Canada’s crude oil production has only gone up (until the last few months due to covid). USA oil production did decline from 1985-2005, but has since gone up to an unprecedented high. Neither of these count LNG, which has also increased massively in the USA, where it has literally doubled since the year 2000 (along with the concomitant methane from drilling).

While Canada and the USA are claiming small climate gains, where did all this extra oil and gas (and GHGs) go? To other countries, where they will burn it and theoretically “account for it themselves.” This 2018 article gives a good description of the challenges of international carbon accounting, and reminds us of a chilling truth – “the contradiction between reports that anthropogenic emissions have stopped rising and atmospheric measurements showing that annual increases in CO2 levels have reached record levels.”

So, if we were to switch to all nations cutting oil and gas production in accordance with their national GHG reduction commitment – how do we enforce that internationally?

Joe Biden has an idea in his Plan for a Clean Energy Revolution and Environmental Justice, although I don’t think he intended it to be applied this way – “Biden will also condition future trade agreements on partners’ commitments to meet their enhanced Paris climate targets.” Great idea.

Here is the proposal:

  • All nations agree to cut oil and gas production in accordance with their national GHG reduction commitment
  • Those who do not agree are excluded from new international trade agreements and face other trade penalties
  • The agreement includes a “non-enforcement” clause for all past trade agreements the signatory is part of – agreeing not to enforce the old agreement against any other signatory for a failure to meet the terms of it, in the course of meeting this new agreement
  • For instance, if the USA, in cutting oil production in accord with its national GHG commitment, breaches NAFTA – Canada will have waived its right to enforce against the USA in that matter
  • That leaves, as potential challengers, private investors through investor-state dispute settlement (ISDS) mechanisms. These are described well here. It basically means that when two states have signed a trade agreement that has an ISDS, and a corporation in one state feels the other state has breached or infringed it’s rights – it can sue in international tribunals for damages or other remedies. Nations live in fear of ISDS and many new environmental laws since the development of ISDSs, have been tailored to ensure they do not lead to ISDS conflicts. So how do we get around ISDSs in already-existing trade agreements?
  • All signatories of this new agreement would agree to mutually revisit and revise their existing trade agreements to edit their ISDSs to remove the ability to sue for breach of this new agreement. It would take time, as the revision mechanisms in some international agreements are complex and have fixed timelines
  • In the meantime – a global fund could be set up to pay any losses incurred through ISDSs in existing trade agreements

Is it easy? No. Is it likely to happen, politically? No, not anytime soon. Is it completely possible and manageable? Yes.

The benefits:

1 – emissions actually will go down, not just pretend.

2 – this is completely traceable – there are no shell games, no loopholes. Countries that produce extra oil and gas will not be able to export it, and will be easy to trace.

3 – this will create scarcity in the oil and gas market, driving prices up, making oil and gas less competitive with renewables, and hastening its decline, and their concomitant rise.

We are not on a path toward meeting our climate targets, we are on a path to tipping points, storms, heatwaves fires, famines, and destruction. The loophole-rich solutions, the comfortable change – have not helped.

This may be tough, but it’s better than the other option.

Part II – keep it in the ground (why market based solutions can’t save us)

Part I discussed Vista Coal in Alberta, and the federal refusal to conduct an EA. Like TMX, this is presumably based on the notion that the emissions will be regulated in the jurisdiction where the fossil fuels are burned.

This supports an endless shell game that allows the world to keep producing fossil fuels, blaming each other, and emissions continue to rise. In reality what it means for this coal is that it could end up being burned in many nations, some of which have a carbon tax or other policies in place, most of which do not.

Let’s first be clear – carbon taxes / cap and trade / market mechanisms, are better than nothing, and have generated some good results in some jurisdictions. I would argue that one of their key benefits in federal-state systems, like Canada, is that they are an opportunity to establish that the federal government has authority to regulate emissions (yet to be determined in Canada by the carbon tax reference cases (see my reflections on those here)).

Some of the issues with a carbon tax, and reasons that it has not realised hoped for results, are found here, where the authors point out that they are seen as the most “efficient” mechanism (I am about to argue otherwise, but it doesn’t change this point);

We question whether efficiency should be an overriding priority of climate policy. If we are to limit global warming to less than 1.5 °C, there is little time remaining to reach carbon neutrality (9). The negative impacts of climate change are already undermining human prosperity and the cost of inaction will escalate the longer we wait (10). Despite the urgency of the problem, carbon pricing places considerable weight on seeking low-hanging fruit and, according to Patt and Lilliestam, fails to appreciate that “we must eventually pick all of the apples on the tree” (11). Furthermore, as of 2019, existing carbon pricing schemes only cover about 20% of global emissions and more than two-thirds of these have prices below $20 United States dollars (USD) per ton of CO2 equivalent.* This is far too low to be effective and increasing coverage and prices presents serious challenges, which we return to below.

They also point out the drawback of this universalist approach;

Carbon pricing strategies tend to be predicated on the notion that, eventually, all emissions are covered so that all prices will be corrected such that no economic decision would escape carbon pricing’s regulatory impact (2). This means that all jurisdictions and economic sectors should be included, ideally with uniform price signals (6). In the absence of uniform pricing, there is a risk that some nations will free-ride on the efforts of others and that firms will relocate to places with lower or no carbon prices (i.e., “carbon leakage”).

Three issues confront this universal approach. First, the required levels of coordination and cooperation are unrealistic, as carbon pricing encounters a fragmented international climate policy landscape (20). In the absence of a global sovereign and considering the great diversity of national circumstances (where countries have different responsibilities for generating the problem, vulnerabilities, and resources to adapt and support mitigation), cooperation or convergence among emission pricing frameworks remain elusive. Second, a universal approach will require well-functioning institutional structures and high levels of regulatory competences and monitoring systems, which do not exist everywhere. Third, carbon pricing strategies tend to ignore that policies need to be tailored to local and/or sectoral contexts in order to address specific sources of lock-in and opportunities for innovation.

The authors go on to propose a wise and well thought out program, “sustainability transition policy” (STP), which “is predicated on the notion that a low-carbon transition will involve multiple and co-evolving social and technological changes” and is described as “STP emphasizes the rapid and effective reduction of emissions, system transformation and radical innovation, the development of context-sensitive responses, and the inherent political nature of decarbonization.”

STP is promising, but there is an even simpler answer: keep it in the ground. If a nation commits to reduce GHGs by 5% per year, they reduce their fossil fuel production by that amount. There are no loopholes, no trade-offs, no caveats – just results. The result of such a policy is GHG production declines.

There is a market element to it in that as supply diminishes the price of fossil fuels may rise – that’s great – then renewables become more competitive, eventually being the obvious choice, and their scale up will take on a life of it’s own.

This may seem simplistic, but you would think the problem that “we are putting too much carbon into the atmosphere” would have a simple solution: make less.

The next post will deal with how to write this into international agreements.

 

 

Vista Coal – another federal betrayal of present and future generations (Part I)

On December 3rd, 2019, Canada opened their factum to the SCC in the Saskatchewan carbon tax reference appeal with;

1. Global climate change is an urgent threat to humanity. Greenhouse gases (GHGs) in the atmosphere enable global warming, causing climate change and creating national and international risks to human health and well-being. GHG emissions cannot be contained within geographic boundaries. Their deep and urgent reduction requires an integrated pan-Canadian and international approach to prevent significantly worsening consequences of climate change.

In October, 2019, the same federal government declined a federal review of the proposed expansion of the Vista Coal Mine in Alberta. According to Global news the Minister of environment and climate change, Jonathan Wilkinson, said;

… the Coalspur Vista Coal Mine project just east of Hinton in western Alberta doesn’t need to be designated for federal review because it is subject to the provincial environmental assessment process.

He adds issues of federal jurisdiction will be covered through other regulatory processes and, if the project proceeds, it will be subject to federal regulation

Ecojustice called it hypocrisy, and that is exactly what it is. What can be done? Well, litigation, of course. And Ecojustice is doing that too.

This is the same argument that was used regarding TMX – that the fossil fuel will be burned elsewhere, and they can count and deal with the emissions. As Clark Williams-Derry, a Seattle-based energy finance analyst with the Institute for Energy Economics and Financial Analysis was quoted in the Narwhal, “It’s like getting a temperance lecture from the bartender,” “As he’s pouring the drink, he’s saying ‘you really shouldn’t be drinking so much.’ ”

Is there a better solution?

 

Carbon tax cases – timing and importance

The Canadian carbon tax cases are important because they are fundamentally about the federal government’s power to regulate climate change on a national scale. The Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (GGPPA), the subject of dispute, sets up a federal carbon tax, and (this is the disputed part) imposes a carbon tax on provinces which are not taking sufficient measures of their own.

Let’s be realistic, a carbon tax is not going to save the world, or save us from climate destruction. It’s a step. It is also not going to bankrupt Alberta, ruin the oil and gas economy, or cause the sky to fall. The oil and gas economy is already effectively on life support and the question of its resuscitation, or not, is addressed elsewhere. So why is it such a focus of ideological dispute between some provinces and the feds?

This case will determine whether the federal government can take national action to mitigate climate change, most importantly whether the feds can impose measures on the provinces. Without being able to do so, and with the provinces having jurisdiction over many heads of power which are critical to dealing with climate change (such as the management of public lands, timber and wood, and most importantly property and civil rights, it is not clear that the federal government could even reach their Paris commitments if they wanted to (still an open question).

These cases will give us a preview of the extent and depth of the federal legal capacity to regulate climate change and meet present and future international legal commitments.

The CASES

Saskatchewan: The Saskatchewan Reference was heard in February 2019, and the Saskatchewan Court of Appeal issued its decision on May 3, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 (CanLII)). The Attorney General of Saskatchewan filed a Notice of Appeal at the Supreme Court of Canada on May 31, 2019.

The SKCA opened its judgement with this, upholding the carbon tax:

4 The factual record presented to the Court confirms that climate change caused by anthropogenic greenhouse gas [GHG] emissions is one of the great existential issues of our time. The pressing importance of limiting such emissions is accepted by all of the participants in these proceedings.

Ontario: The Ontario Reference was heard in April 2019, and the Ontario Court of Appeal issued its decision on June 28, 2019 (Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 (CanLII)). The Attorney General of Ontario (“Ontario“) filed a Notice of Appeal at the Supreme Court of Canada on August 28, 2019. All of the case documents, and video of the proceedings, can be found here.

The ONCA said, also in upholding the carbon tax;

[3]         The Act is within Parliament’s jurisdiction to legislate in relation to matters of “national concern” under the “Peace, Order, and good Government” (“POGG”) clause of s. 91 of the Constitution Act, 1867. Parliament has determined that atmospheric accumulation of greenhouse gases (“GHGs”) causes climate changes that pose an existential threat to human civilization and the global ecosystem. The impact on Canada, especially in coastal regions and in the north, is considered particularly acute.

[4]         The need for a collective approach to 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 Act does this and no more. It leaves ample scope for provincial legislation in relation to the environment, climate change and GHGs, while narrowly constraining federal jurisdiction to address the risk of provincial inaction.

And aptly quoted the Paris Accord to say;

[6]         Climate change was described in the Paris Agreement of 2015 as “an urgent and potentially irreversible threat to human societies and the planet”. It added that this “requires the widest possible cooperation by all countries, and their participation in an effective and appropriate international response”.

Alberta: The Alberta Reference was heard on December 16, 17, and 18, 2019, and the Alberta Court of Appeal issued its decision on February 24, 2019 ( Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII)). British Columbia filed a notice of appeal on March 25, 2020.

The ABCA opened very differently, signalling at the start that they were finding the carbon tax unconstitutional;

[1]               Calls to action to save the planet we all share evoke strong emotions. And properly so. The dangers of climate change are undoubted as are the risks flowing from failure to meet the essential challenge. Equally, it is undisputed that greenhouse gas emissions caused by people (GHG emissions) are a cause of climate change. None of these forces have passed judges by. The question the Lieutenant Governor in Council referred to this Court though – is the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (Act) unconstitutional in whole or in part – is not a referendum on the phenomenon of climate change. Nor is it about the undisputed need for governments throughout the world to move quickly to reduce GHG emissions, including through changes in societal behaviour. The federal government is not the only government in this country committed to immediate action to meet this compelling need. Without exception, every provincial government is too.

University of Ottawa professor Nathalie Chalifour gives an excellent and very in-depth preliminary discussion here and Chalifour wisely notes that “[t]his question has many dimensions, including the scope and applicability of multiple heads of powers, such as the national concern and emergency branches of the residual peace, order, and good government (POGG) power, taxation, criminal law, and the trade and commerce powers.”

Chalifour’s article was before the ABCA case was merged, however, and the ABLawg gives a great analysis of the later Alberta decision here. There are many other excellent analyses of the cases, including from an Indigenous feminist legal perspective, and an argument for climate change as a sui generis area of law.

When will they be heard?

The Saskatchewan and Ontario Appeals were originally tentatively scheduled to be heard in December 2019 and then January 2020. This was adjourned to March 24 and 25, 2020. These dates were in turn adjourned tentatively to unspecified dates in June 2020 because of the Covid-19 pandemic. The cases are now all tentatively scheduled to be heard by the SCC in September via live webcast. Since you’re not in live court, popcorn is welcome in this highly technical, but high-stakes hearing. It will be interesting to watch counsel for each of the 3 AGs – whether they open/close arguments with the big picture, or the technical.

Thoughts on safely letting the oil and gas industry die

As a starting premise is this article title, “The world is on lockdown. So where are all the carbon emissions coming from?” We are flying less, driving less, and yet emissions have barely come down to the point they need to stay at to possibly meet the inadequate Paris targets.

Massive oil and gas bankruptcies were already predicted before Covid-19. This piece back in December, 2019, said a “bankruptcy boom has hit the oil and gas industry, and it’s just getting started.” Then, earlier this month there was an oil price war resulting in an international agreement from a number of OPEC and key oil producing states to cut production. And now, as of April 22nd, there are oil tankers (ships) holding 22 million barrels of stranded crude oil parked all over the world..

So what will become of the oil and gas industry, and what will become of us? Even with all this oil stranded we have not cut emissions enough. Of course governments are tempted to prop them up, and there have been some bail outs already, but they should not do more, they should let them go bankrupt.

People will argue that they shouldn’t because if they do then the government/taxpayer will have to clean up all those abandoned oil wells and toxic sites, but the truth is, they will anyway, as proof – the federal government just committed $1.7 billion to clean up orphan wells.

People will argue that there are too many jobs at stake. But the above orphan well clean up is good job creation, as is renewable energy. There are lots of better ways to create jobs.

People will argue that we still need oil and gas to run many aspects of the economy. This is true. But government can do that to a degree, where industry does not, as we have seen them do with both the TMX purchase, and their management of covid-19.

If oil and gas companies are allowed to fall the assets will still exist (wells, trucks, machinery, etc.) – the crown may as well pick up the positive with the negative (orphan wells / contaminated properties), and anything that doesn’t escheat to them they can buy for a song. Then they can operate it only as long as necessary, and shut it down when the time is right (as soon as possible).

People will argue that there is a danger the government will operate it for too long, and cling to it out of ideology rather than need. This is the biggest danger with such an approach. But is it really that different from the government buying any project they feel is “in the public interest,” like TMX?

Also, letting them die sends a signal to the world – that it’s time to embrace the new.

 

 

 

 

Spring 2020 update on the federal Emergencies Act

We are now living amongst the terror and sadness of a global pandemic – Covid-19. Yesterday, after a phone call between the PM and the Premiers, the federal government officially decided, on pressure from the provinces, not to use the federal Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)). That leaves it as still having never been used since it was passed in 1988, replacing the War Measures Act. 

The War Measures Act was used three times – to intern Canadians in WWI, WWII, and during the October Crisis in 1970. The last use, by Trudeau senior, gave it a bad rap (the first two did as well), and after the Charter was passed it no longer seemed to fit the Canadian legal ecosystem, so it was repealed and the Emergencies Act passed, which is supposed to accord with the Charter.

Regardless – it is clear that its potential use is not popular with the provinces, as it is fairly likely to intrude on provincial jurisdiction. BC Premier John Horgan said yesterday that it was a “distraction” and a waste of time. It was also clear that the Emergencies Act is considered a stop-gap measure, to fill in the blanks when there is a failure of national co-operation, or provinces fail or are unable to do their part, Trudeau said in a briefing afterwards;

“We are seeing that the collaboration, the partnership among provinces and territories and the way we’re moving forward on this means that we might not ever have to use the Emergencies Act and that would be our preference.”

This post, by Adrienne Smith, lays out some of the powers the federal government can access under the Emergencies Act;

… Cabinet has the power to evacuate, remove, requisition, direct and dispose of person and things. It can force the establishment of hospitals and shelters – for 90 days. People can be directed to render essential services. This declaration allows for the payment of benefits and support to people who are affected – through Employment Insurance, the CERB and as transfers to the provinces. Various enforcement tools are created, including fines and imprisonment.

Those are extensive, and if the federal government were to use the Emergencies Act regarding climate change they would have considerable powers to deal with it. This post builds on one from last year – Can governments declare a “Climate Emergency”? – the powers under the Act are listed in s. 8 of the Act, and discussed in last year’s post in more detail.

The Act itself mentions “accident or pollution” (s. 5(c)), under “Public Welfare Emergency,” as one of the bases on which to declare an emergency.  Certainly climate change qualifies as pollution. 

In order to really get the answer regarding the question of whether the federal government will ever use the Emergencies Act regarding climate change we can look at two things; 1) the provincial resistance to it, as an encroachment on their spheres of ppower, 2) it would have to be in a situation of complete provincial failure to deal with the problem (which is arguably the case for most provinces), and 3) look at the resistance to the carbon tax, which is also predicated on a failure of the provinces (in order for it to be applied there (to be discussed in a coming post)).

The result? It will have to be very dire circumstances for the federal government to ever consider invoking the Emergencies Act in relation to climate change, including a complete failure of one or more provinces to deal appropriately with those very dire circumstances. It is unlikely to happen any time soon.

3 climate lessons from Covid-19

  1. Suffering sucks. Every person that dies is someone’s loved one, the loss of whom will leave them grieving, possibly needing counselling, or years to digest and reconcile. Loss, pain, tears. Suffering sucks. The numbers of dead are not numbers – they are permanent and negative changes – losses of resources, knowledge, personal and family history, connection and support.
  2. Listen to the warnings. We were warned. We saw it happening in China, spreading out from there. Governments, and people, were slow to react. Instead of listening to the warnings many people believed when they heard someone mumble that it was really just another flu, or that the warnings were overstated. Some used such talk for political leverage.
    We have been warned on climate change. We have not listened.
  3. We have tools, but they are more effective if used early. There is currently less suffering, and more confidence, in places where tools were deployed quickly. Some of those tools have been quarantining, testing, financial and economic measures to support those who respect the request/order not to go to work, ticketing-fines-jail for those who break the rules, and government money into projects that help.
    On the climate front we are late, very late. But, to quote an old english poem, “time still succeeds the former..”
    There are legal, policy, and cultural tools at our disposal. A previous post covered some of the things the Canadian government can do with the Emergencies Act regarding climate change (and there’s another post to come). But some clear examples of legal tools that could be used now regarding climate change, to reduce the impacts, are; financial and economic measures to support transitioning oil and gas workers, and supporting those who are hurt by a transition to a low-carbon economy, ticketing-fines-jail for those who break the rules, and government money into projects that help – solar and wind farms, tidal, geothermal, planting trees, and research and development.
    Some policy options, of many, are leaving oil and gas in the ground – no new projects, and wind down current ones, and completely change how forestry, agriculture and fisheries are conducted to maximise carbon storage.

    Climate change, on the path we are on, is going to cause far greater human suffering than Covid-19. Once the bad part really starts, there will be no turning back, and it will be too late to effectively wield the tools we have. To reduce human suffering we must listen to the warnings and use the tools we have now.