A shell game is where people move shells (or cups, or whatever) around on a table, with an object under just one of them – you have to pick the shell that has the pea under it. The key is that “it is almost always a confidence trick used to perpetrate fraud.”  And that is accomplished by having you pay attention to the wrong thing.

Some people take issue with this inflammatory (pun intended) term regarding climate change, but what are the elements of a shell game? There are two keys; one is – ‘look over here (at emissions) while the action is over there (production).’ The other is – it is a fraud.

The production gap is the difference between our emission reduction commitments / actions, and our production of oil and gas. The gap is massive. Take Canada, for instance, where we are finally making more lofty emissions reduction commitments (despite being the worst amongst the G7), but at the same time openly intend to increase oil and gas production by 17 and 18% respectively.

Background

While Canada is planning to reduce emissions by “40 to 45 percent below 2005 levels by 2030,” and then “net-zero emissions by 2050,” we are also planning to increase oil and gas production by 17/18% by 2040. All major oil and gas producing countries are planning to do this – reduce emissions while increasing production.

How can this be?

It is done on the basis that oil produced here (as was a key issue re TMX and other projects) need not be considered because “it will be counted in the jurisdiction where it is burned.” On this basis we (Canada and the world) continue to produce more and more oil and gas while setting and missing targets.

It is impossible for the world to reduce carbon emissions going into the atmosphere if every oil producing nation is saying they’ll reduce emissions but ramping up production.

The TMX Example

The argument here can be summarized as “the emission will be counted in the jurisdiction in which they are burned.” In 2014 in Ruling No. 25 the National Energy Board (NEB) dismissed concerns that TMX would enable an increase in oil and gas production with a number of arguments which were concluded by saying “[t]he Board agrees with Trans Mountain that downstream effects are more effectively assessed and regulated by the jurisdictions where the use occurs” and concluding the ruling with “the end use of oil is managed by the jurisdiction within which that use occurs.”

That decision was relied on throughout all the future challenges to TMX, including NEB Ruling No. 29, Tsleil-Waututh Nation v. Canada (National Energy Board), 2016 FCA 219 (CanLII), (para. 96) and the post-federal purchase NEB Ruling No. 30,  Raincoast Conservation Foundation v. Canada (Attorney General), 2019 FCA 224, and presumably here: Olivier Adkin-Kaya, et al. v. Attorney General of Canada, et al., 2020 CanLII 17606 (SCC).

The critical importance of this became apparent to me in 2019-20, while litigating TMX. This position was repeated and adhered to throughout all subsequent NEB and federal and Supreme Court of Canada litigation, despite the massive changes in our view of climate change and climate science, and despite one instance which was different, Energy East, in 2015, which happened to go through the new PM’s Riding, and where suddenly downstream impacts were considered in a seemingly non-repeatable manner.

This is the hinge – the view which supports all new oil and gas development globally – that we don’t have to assess it in terms of production, because the oil produced will be assessed for its climate impacts where it is burned.

Except – it might not. In fact, many places in the world are not doing a good job of climate accounting for or reducing emissions, Canada included.

The rationale for increasing production while committing to reduce emissions

The USA’s position has been most clearly articulated in a 2020 Brookings Institute article by Samantha Gross, titled “The United States can take climate change seriously while leading the world in oil and gas production.”

Gross starts by pointing out that “U.S. oil and natural gas production has soared in the past decade,” and “[t]he United States is now the world’s leading producer of both oil and natural gas.”

Gross then argues that while “[e]liminating that production seems like a good way to eliminate emissions,” … “cutting back domestic oil and gas production without an equally ambitious focus on demand will just increase U.S. imports, rather than reduce consumption.”

This is a key argument in defence of this policy, as is the notion that the USA (Canada) could lose its economic advantage which could actually cause emissions to go up, because oil would just be imported to meet demand, and that oil may have a bigger upstream footprint.

What Gross doesn’t acknowledge is – it may have a smaller footprint. And that is a variable which can be controlled.

Gross closes by confronting one counter argument, saying “[o]ne could argue that reducing U.S. oil and gas production would increase global oil and gas prices and thus decrease their use globally.” Yes. But Gross then says “[t]his might be true for a while, but the global oil market has a history of strong price swings, as high prices bring out more production that sends prices crashing down again. It’s unlikely that decreased U.S. production would keep prices high enough for long enough to significantly decrease global demand.” But, if we’re actually planning to reduce emissions, in practice, that has to happen.

We have known about this for DECADES

So, okay, we are amping up production of oil and gas while promising to tackle global climate change by reducing our national emissions. And maybe that’s not the right approach. But is there a shell game here, a “confidence trick used to perpetrate fraud”?

We have known about climate change, and the need to reduce GLOBAL emissions, for literally decades. In 1985 Carl Sagan made a presentation to Congress which is as informative and relevant today as it was then. And as ignored.

There has been tons of research on “they knew” by Ben Franta, Phd, and others, as well as early oil industry disinformation on global warming. Our governments have known about climate change for decades. In the 90’s they promised to reduce emissions while they increased production and watched global emissions rise. In the 2000’s they promised to reduce emissions while they increased production and watched global emissions rise. In the 2010’s they promised to reduce emissions while they increased production and watched global emissions rise. In the 2020’s they promise to reduce emissions while they increased production and watched global emissions rise? That’s correct.

The Production Gap

How do we know this? Handily, we have the Production Gap, 2021 Report, Summary of Key Findings which states “As countries set net-zero emission targets, and increase their climate ambitions under the Paris Agreement, they have not explicitly recognized or planned for the rapid reduction in fossil fuel production that these targets will require. Rather, the world’s governments plan to produce more than twice the amount of fossil fuels in 2030 than would be consistent with limiting warming to 1.5°C.”

Conclusion

But we are told to believe that our leaders have good intentions, and are just making an innocent mistake, or are simply unable to get emissions to go down. That is not believable – it is a shell game, a “confidence trick used to perpetrate fraud,” and we are being defrauded of our future, our children’s futures, many people of their lives, and many more to come.

The only way to tame global emissions is to focus on production instead of emissions. Every oil, gas, and coal producing nation must reduce production according to their emissions commitments. For Canada that’s 40% below 2005 by 2030.

(reposted with permission from https://law.lclark.edu/live/blogs/189-climate-justice-desserts-the-unga-is-the-climate, originally posted on April 20, 2022)

Introduction – International justice out of balance

A handful of states have gained incredible wealth and power while causing climate change, and climate change threatens to destroy civilization.[1] The impacts are and will be felt most by the poorer countries which have not contributed as much to causing it,[2] because they are unable to adapt, are in hotter or drier areas, or are less able to buy their way out of problems (like hunger).

The world has set a target to stay below 2 degrees of warming by the end of the century, preferably 1.5.[3] A failure to do so, and to hit 2 instead, will mean an estimated excess 150 million deaths in that time.[4] Our leaders have known about this for years, certainly since the stark warnings delivered by the IPCC in 2018. But they have not changed course. Is knowingly contributing to 150 million deaths not a crime?

Yet there is no viable international mechanism to prosecute heads of state for their climate-destroying actions. The ICC is unlikely or unable to prosecute the top historical emitters, even if inclined to do so.[5] For some, like the UK, France, and Germany, that is simply because of their influence or “realpolitik.”[6] For the top three emitters, the USA, Russia, and China, it is impossible, as they have not subjected themselves to ICC jurisdiction and have vetoes on the UN Security Council. Furthering the unfairness, the ICC may also be more likely to prosecute those less powerful and lower-emitting states, who are also largely non-white, based on historical patterns and structural design, as well as their being seen as “low hanging fruit.”[7] Also, the ICC is sometimes seen as elitist and colonial.[8]

This post is a “Part II” to my post last term. In that post I looked at the potential new crime of “ecocide,” and whether it would be in accord with principles of EJ for it to be prosecuted at the International Criminal Court (“ICC”).[9] I concluded:

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.

A key question which followed from that post was “if not the ICC, then where?” In this post I consider some possibilities and conclude that in fact the UNGA has the potential to meet the above terms.

Climate Justice and the climate divide

The wealth and power of those who created the climate crisis, accumulated at least in part through the burning of fossil fuels, played a significant role in the creation of the United Nations (UN), the UN Security Council (UNSC), and more recently the International Criminal Court (ICC).

In setting up this system of international law, and international criminal law (“ICL”) through the ICC, the most powerful states, those with vetoes on the UNSC, have effectively insulated themselves from ICL consequences. At the same time the least powerful, black African and Arab states, have been the focus of ICC prosecutions.

Professor Nigel South describes this as the “climate divide” and defines it as:

… one in which the conditions producing climate change are contributed to most overwhelmingly by rich consumer societies but which will impose the greatest costs and resultant miseries on the already poor and newly developing nations.[10]

Algonquin Elder Robert Lovelace described this history and relationship, colonialism, as:

… the process by which a group having exhausted its sustainability options dispossesses another group of its. Using seduction or force, a dominant group undermines the power of multiple others. This is the principle mechanism that separates much of humanity from the sacred relationships with the earth and has become normalized in the governance of nations.[11]

Seen in this view, allowing colonial nations to benefit further by escaping justice while innocent and marginalized bystanders are potentially prosecuted offends any notion of justice.

A key feature of environmental and climate justice is “we speak for ourselves.”[12] Environmental and climate justice communities and nations must be given space to do so. Professor Deborah McGregor describes Environmental Justice (EJ) as being;

…about power relationships among people and between people and various institutions of colonization. It concerns issues of cultural dominance, of environmental destruction, and of inequity in terms of how certain groups of people are impacted differently by environmental destruction from others, sometimes by design.[13]

Climate Justice (CJ) has been described as insisting “on a shift from a discourse on greenhouse gases and melting ice caps into a civil rights movement with the people and communities most vulnerable to climate impacts at its heart.”[14] Describing the imbalance caused by climate change, Indian scholar and activist Vandana Shiva said, “the climate crisis is at its roots a consequence of human beings having gone astray from the ecological path of living with justice and sustainability. It is a consequence of forgetting that we are earth citizens.“ She describes the resulting imbalance in the relationship between “the earth and her species” as “adharma.”[15]

As a global society so far out of balance as to be on the brink of self-destruction, we have to look at means of restoring balance. One means of doing that is to hold those who have caused it to account.

Climate change and global peace and security

Climate change not only threatens individuals, but also global peace and security.[16] Patricia Espinosa, executive secretary of the United Nations Framework Convention on Climate Change, said at the first-ever Middle East and North Africa (MENA) Climate Week on March 25, 2022, that:

Climate change is a destabilising phenomenon that can impact food security, water security, energy security and human security. The severity of impacts and potential for social disruption make climate change more than a security threat. Climate change is a grave threat to life as we know it.[17]

And:

The recent IPCC Sixth Assessment report clearly shows that all nations need to take the climate change threat more seriously. We are pushing our planetary boundaries at our own peril, and some of those boundaries are at a breaking point. It’s time for every person, government and business to make decisions that reflect and respect those boundaries.[18]

While UN Secretary-General António Guterres, said that climate change “has a multiplier effect and is an aggravating factor for instability, conflict and terrorism.”[19] With that background in mind, we will turn to the law and assessment of options.

ICL-Climate law as an evolving area

Climate law is a steeply evolving area, and this is just the beginning of thinking in this area. Professor Patrick Keenan noted that “[i]f even the relatively conservative estimates of the effects of climate change come true, there will be enough legal issues for a generation of lawyers and scholars to address.”[20]

This could also be said of international criminal law (ICL) as it relates to climate change. There is an entire generation of world leaders under whose watch the destruction of civilization has begun. Young people are out in the streets and in the courts, challenging their governments climate failures. When they take power – it is easy to imagine that they will be looking for accountability.

Some Options

With EJ and CJ focusing on institutions of colonization, inequity (by design), “a civil rights movement with the people and communities most vulnerable to climate impacts at its heart,”[21] and seeking to rebalance, instead of further unbalance – any solution must be driven and supported by the world’s poor, people of colour, and Indigenous peoples.

Specialized and Regional Tribunals

Many of the specialized tribunals of recent history, such as the International Criminal Tribunal for Yugoslavia,[22] and Lebanon,[23] were created pursuant to UNSC authority. Clearly, this will not do here, as discussed elsewhere. That would lead to the same set of issues that arise with the ICC. The ICJ, the International Court of Justice, is not helpful here because it is for states only, not individuals.

German lawyer and judge Roda Verheyen has proposed a new tribunal to adjudicate claims against major carbon polluting states;[24] however, it is not clear that any such criminal tribunal has been proposed thus far. As noted above, this body of law is in its infancy.

Regional tribunals are also a relatively new and evolving phenomenon. Professor Miles Jackson wrote, in imagining alternative international criminal tribunals “[t]hese may be continent wide, as with the African Court, or multilateral, or even bilateral, where two states establish a criminal tribunal to prosecute crimes in a specific conflict.” [25]

While it was previously accepted that the ICC could not assert jurisdiction over nationals of states that had not acceded to the jurisdiction of the ICC, and had a veto on the UNSC, the world is currently in the midst of a discussion about whether Vladimir Putin, the Russian president, could be prosecuted abroad for the crime of aggression and war crimes for the invasion of Ukraine.[26] The ICC is proceeding with an investigation, although the basis of its jurisdiction is uncertain.[27]

Another option could be a subject matter tribunal, although that would essentially be the same as the next option – a new treaty.

A New Treaty of the Willing?

Another option could be for the Beyond Oil and Gas Alliance,[28] or any group of states taking meaningful action on climate change, to form a new treaty, whereby they grant themselves “universal jurisdiction” over all accused climate criminals. While they could certainly do so, unless they had enough members to say their assertion of jurisdiction was jus cogens – it would be globally divisive to say the least.

Role of the    UN General Assembly – Uniting for Peace

The UN General Assembly (UNGA) is arguably the most equitable forum in the world, as almost all states are members, and it follows the one-member-one-vote principle. The problem is that the current perception seems to be that the UNGA has no power to create a forum with jurisdiction over all states, including those with vetoes on the UNSC.

The UNGA can exercise its power for peace where the UNSC fails to act on critical matters. This was done in regard to the Korean conflict in 1950 when the former USSR blocked all resolutions that would lead to action. In response to this inability to act the UNGA passed Resolution 377 (V), on “uniting for peace” which stated that “where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter.”[29]

Resolution 377 (V), on “Uniting for Peace” opened with a reminder of the two main purposes of the United Nations, “[t]o maintain international peace and security,” and “[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”[30] In doing so the UNGA grounded this action in article one of the UN Charter.[31]

These purposes fit precisely the challenge of climate change – the UNSC has effectively blocked prosecution of the veto-holding nations heads of state through the design of the ICC, both regarding the USA / Russia, and China, which have not made themselves subject to ICC jurisdiction, and the UK and France, which have, but will likely never be prosecuted because the ICC would defer to the state due to its “gap-filling” jurisdiction where it was only intended to prosecute where the home state is unwilling or unable to do so.[32]

The preamble of Resolution 377 (V) continues to repeat the UNSC’s failure, and then states:

Recognising in particular that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security,[33]

The UNGA then resolved that:

… if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.[34]

While this was clearly made in the context of war, “international peace and security” could easily be argued to apply to climate change as well. The failure of the UNSC to take action by prosecuting the heads of state who have caused climate change can be addressed by the UNGA.

Conclusion

If the UN has evolved into an entity where the UNSC makes most of the meaningful decisions, including convening courts to resolve matters of international peace and security, it is not because it was designed that way – it wasn’t. The UNSC is not the brain of the UN, it is simply a hand. In its original conception and early actions the UNGA had backstop authority where the UNSC failed to act.

The biggest emitters have vetoes on the UNSC, so the world should assume those members will not convene a criminal tribunal to hold themselves to account. The UNGA is a one-nation-one-vote system, with no vetoes, and so is more fair and in keeping with EJ and CJ. In the face of a lack of action by the UNSC the world can act through the UNGA to create an international climate crime tribunal, or take other steps, as guided by the majority votes of the poor and post-colonial nations and peoples of the Earth.

---

[1] David Spratt & Ian Dunlop, MAY 2019, “Existential climate-related security risk: A scenario approach,” BT Policy Paper, Breakthrough – National Centre for Climate Restoration Melbourne, Australia, online: https://docs.wixstatic.com/ugd/148cb0_b2c0c79dc4344b279bcf2365336ff23b.pdf; Enno Schröder & Servaas Storm (2020) Economic Growth and Carbon Emissions: The Road to “Hothouse Earth” is Paved with Good Intentions, INTERNATIONAL JOURNAL OF POLITICAL ECONOMY, 49:2, 153-173, DOI: 10.1080/08911916.2020.1778866, at 168; Will Steffen, Johan Rockström, Katherine Richardson, Timothy M. Lenton, Carl Folke, Diana Liverman, Colin P. Summerhayes, Anthony D. Barnosky, Sarah E. Cornell, Michel Crucifix, Jonathan F. Donges, Ingo Fetzer, Steven J. Lade, Marten Scheffer, Ricarda Winkelmann, and Hans Joachim Schellnhuber, Trajectories of the Earth System in the Anthropocene, PNASAugust 14, 2018 115 (33) 8252-8259.

[2] Rob White, (2018). “Ecocide and the Carbon Crimes of the Powerful UNIVERSITY OF TASMANIA LAW REVIEW, 37(2), 95-115.

[3] United Nations Climate Change, The Paris Agreement, online: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement

[4] David Wallace-Wells, The Uninhabitable Earth, Crown Publishing, New York, 2019, at 28.

[5] Patrick Canning, January 13, 2022, Climate Crime at the ICC – Environmental Justice through the Looking Glass, LEWIS & CLARK LAW SCHOOL ENVIRONMENTAL, NATURAL RESOURCES, & ENERGY LAW BLOG, https://law.lclark.edu/live/blogs/177-climate-crime-at-the-icc-environmental-justice.

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

[7] 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): https://library.lcproxy.org/login?url=https://www.proquest.com/newspapers/international-courts-new-paternalism-african/docview/1698490328/se-2?accountid=25203.

[8] Helyeh Doutaghi and Jay Ramasubramanyam, 15 April, 2019, “By not investigating the U.S. for war crimes, the International Criminal Court shows colonialism still thrives in international law,” Carleton Newsroom, online: https://newsroom.carleton.ca/story/icc-colonialism-thrives/

[9] Supra note 5.

[10] Nigel South, ‘Climate Change, Environmental (In)security, Conflict and Crime’ in Stephen Farrell, Tawhida Ahmed and Duncan French (eds), Criminological and Legal Consequences of Climate Change (Hart Publishing, 2012 109, 109.

[11] Robert Lovelace, Notes From Prison, in Speaking for Ourselves: Environmental Justice in Canada, UBC Press, 2009, p. ix.

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

[13] Deborah McGregor, Honouring Our Relations: An Anishnaabe Perspective on Environmental Justice, in Speaking for Ourselves: Environmental Justice in Canada, UBC Press, 2009, p. 27.

[14] Mary Robinson, quoted in UN, “UN Sustainable development goals: Climate Justice,” online: https://www.un.org/sustainabledevelopment/blog/2019/05/climate-justice/.

[15] Vandana Shiva, Soil Not Oil: Environmental Justice in an Age of Climate Crisis (South End Press, 2008) 130.

[16] UN Security Council, 23 February, 2021, Press Release, SC/14445, “Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation” online: https://www.un.org/press/en/2021/sc14445.doc.htm.

[17]Robert Kennedy, 26 March 2022, ‘Grave threat to life’: UN climate chief issues warning for MENA, Al Jazeera, online: https://www.aljazeera.com/news/2022/3/26/climate-change-is-a-grave-threat-to-life-un-climate-chief.

[18] Ibid.

[19] Ibid.

[20] Patrick J. Keenan International Criminal Law and Climate Change, 37 B.U. Int’l L.J. 89.

[21] Mary Robinson, supra note 14.

[22] International Criminal Tribunal for Yugoslavia, online: https://www.icty.org/en/about.

[23]Special Tribunal for Lebanon, online: https://www.stl-tsl.org/en/about-the-stl/oversight.

[24] Roda Verheyen, Climate Change Damage & International Law: Prevention Duties & State Responsibility (Brill: Martinus Nijhoff, 2005) at ch. V1.

[25] Jackson, Miles, Regional Complementarity: The Rome Statute and Public International Law (July 3, 2016). (2016) 14(5) Journal of International Criminal Justice 1061, Available at SSRN: https://ssrn.com/abstract=2774338 or http://dx.doi.org/10.2139/ssrn.2774338

[26]Zachary B. Wolf, March 10, 2022, “Everything you need to know about war crimes and how Putin could be prosecuted,” CNN, online; https://www.cnn.com/2022/03/03/politics/putin-war-crimes-russia-ukraine-us-what-matters/index.html; Zoha Siddiqui, Nathaniel Liu, Daniel Posthumus, and Kelebogile Zvobgo, March 4, 2022, Could Putin Actually Face Accountability at the ICC? Foreign Policy, online: https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/

[27]Jaime Lopez, Brady Worthington, March 10, 2022, The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications, Lawfare blog, online: https://www.lawfareblog.com/icc-investigates-situation-ukraine-jurisdiction-and-potential-implications

[28] Beyond Oil and Gas Alliance, online: https://beyondoilandgasalliance.com/.

[29]Christian Tomuschat, Uniting for Peace, General Assembly resolution 377 (V), New York, 3 November 1950, Introductory Note, online: https://legal.un.org/avl/ha/ufp/ufp.html

[30] General Assembly-Fifth Session, General Assembly resolution 377 (V), online: https://www.un.org/ga/search/view_doc.asp?symbol=A/RES/377(V). While the preamble is not binding, the resolution repeats similar wording, seen below.

[31] Charter of the United Nations and Statute of the International Court of Justice, Art. 1, online: Charter of the United Nations.pdf (undp.org).

[32] Rome Statute of the International Criminal Court art. 66 ¶ 3, July 17, 1998, 2187 U.N.T.S. 90., Article 17; Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 MICH. J. INT’L L. 195 (2020), p. 195.

[33] Ibid.

[34] Ibid.

(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 5^th, France 7^th and Canada is 9^th (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, 3^rd 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, 3^rd 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.

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.

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.

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 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.

 

 

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?

 

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.

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.