For instructors who include a module on climate litigation, it’s been a watershed summer, with two cases presenting excellent opportunities to discuss the potential role of such actions in inducing more substantive actions by government. In July, in a suit brought by a Dutch NGO, (Urgenda v. Netherlands) a District court in the Hague held in that the State was in breach of its duty of care to Dutch society by failing to take sufficient mitigation measures to prevent dangerous climate change. The court ordered the Dutch government to “limit or have limited” national greenhouse gas emissions by at least 25% by 2020 vs. the government’s current mitigation path of 17%.

Following closely on the heels of this case is a September decision by the Lahore High Court Green Bench (Ashgar Leghari v. Federation of Pakistan). The petitioner in this case was a farmer who challenged the government of Pakistan’s implementation of the National Climate Change Policy (NCCP) and Framework for Implementation of Climate Change Policy on human rights grounds. More specifically, petitioner alleged that the failure of the federal government to implement climate measures “offends the fundamental right to life under article 9 of the Constitution” by threatening posing a serious threat to water, food and energy security of Pakistan. Moreover, petitioner contended that government inaction, and consequent climatic threats, undermined protection of his right to a healthy and clean environment and human dignity under article 14 of the Pakistani constitution, as well as constitutional principles of social and economic justice. He also alleged that certain international environmental principles, which constituted “fundamental rights” were apposite, including the doctrine of public trust, sustainable development, the precautionary principle and intergenerational equity.

In finding for the petitioner, the court held that:

1. The primary cause of climate change is anthropogenic and its manifestations, including flooding, have already begun affecting Pakistan “with far reaching consequences and real economic cost;”
2. The focal point of the Framework for Implementation of Climate Change Policy are adaptation efforts; however, to date “no material exercise has been done on the ground to implement the Framework” by relevant Ministries and Provincial Departments;”

In order to “expedite” protection of “the fundamental rights of the people of Punjab,” the court established a Climate Change Commission, comprised of pertinent government officials, with the powers to effectuate effective implementation of the NCCP and Framework and to compel cooperation by Ministries and Departments. Moreover, the court directed responsible ministries and departments to appoint a focal person on climate change to prepare a list of adaption measures to be completed by the end of 2015. The Green Bench also retained jurisdiction (continuing mandamus) to hear reports from the Commission concerning their progress in carrying out these orders.

It’s been my experience that both law and non-law students are very interested in climate litigation. Some of the questions that might grow out of discussion of these cases are the following:

1. Should non-elected judiciaries be permitted to impose mandates with substantial fiscal and social implications on society?
2. Are decisions of this nature likely to have substantive impacts in terms of climate change policy? Is there any empirical evidence to date?
3. What are the implications of decisions of this nature for international climate policymaking?

In recent years, there has been increasing discussion by both academics and policymakers of the nexus between human rights and climate change. This included the previous passage of three resolutions by the UN’s Human Right Council. This past week, the Council passed its fourth resolution on the topic, likely seeking to send a signal to the Parties to the UNFCCC in advance of the COP21 meeting in Paris. The resolution comes in the immediate wake of a call last month by the Climate Vulnerable Forum (a collaborative forum of climate-vulnerable States) for the Parties to the UNFCCC to agree to aggressive reductions in emissions at Paris to help ensure protection of critical human rights threatened by climatic impacts.

The latest Human Rights Council resolution, which was championed by the Philippines and Bangladesh, and co-sponsored by more than 100 countries, includes the following provisions:

1. It emphasizes, as had the Parties to the UNFCCC at their 16th Meeting of the Parties, that States should respect human rights “in all climate-related actions,” which would presumably include response measures, including mitigation and adaptation initiatives, as well as climate geoengineering;
2. It reaffirms the link between climate change (including both sudden-onset natural disasters and slow-onset events)  and the threat to the enjoyment of an array of human rights, including the right to life, food, water and development;
3. It calls for a panel discussion as part of its work program for its 31st Session “on the adverse impact of climate change on States’ efforts to progressively realize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and related policies, lessons learned and good practices.”
   1. The Resolution all calls for the Office of the United Nations High Commissioner for Human Rights to conduct a study on the nexus of climate change impacts and human to inform the panel discussion. The OHCHR was also encouraged to consult with and solicit the view of States, pertinent international organizations and intergovernmental bodies, including the IPCC, the UNFCCC, the World Health Organization, and other stakeholders.

Among the class discussion questions that this resolution could generate include the following:

• Do you believe that there is any value in subjecting climate change to a human rights lens given the fact that human rights are regularly flouted in many contexts?
• Given the fact that the human rights violations associated with climate change in the world’s most vulnerable States will be the consequence of emissions by other countries is there a role for human rights given the anathema of many States to apply human rights provisions extraterritorially?
• What might be some of the practical problems of applying a human-rights based approach in terms of legal issues e.g. causality, joint-responsibility, etc.

Instructors who include a lesson on climate geoengineering now have a luxury of riches in terms of student readings. However, one I’d highly recommend is an article by Michael Zürn of the Wissenschaftszentrum Berlin für Sozialforschung and Stefan Schäfer of the Berlin Graduate School for Transnational Studies in the journal Global Policy.

Zürn and Schäfer argue that the panoply of climate geoengineering options pose a “paradox,” in that “those few technologies that promise to act fast at a low price (identified by the authors as stratospheric particle injection and marine cloud brightening) would also bear the greatest risk of creating political and social resistance and conflict.” The authors conclude that the implications of such conflict could include international conflict, efforts at “counter-climate engineering” by States seeking to offset cooling effects of geoengineering, as well as potentially “permanent damage” to the UNFCCC process.

The authors cite four potential side effects of climate geoengineering that must be addressed to avoid the “paradox.” These included engendering widespread social and political acceptance, avoidance of potential moral hazards (possibility that climate geoengineering might denude the commitment to greenhouse gas emissions reductions), avoidance of a slippery slope from research to deployment without a compelling rationale; and avoidance of the termination problem, potentially “catastrophic” climatic effects should the use of technologies cease.

To address these potential side effects, the authors proposed three institutional principles, including transparency in research to ensure social and political acceptance, institutional integration with existing climate policies to avoid moral hazard, and a clear distinction between research and deployment to avoid both slippery slope and termination issues. Zürn and Schäfer also developed six components to implement these principles, including establishment of a coalition of States to engage in transparent research, assessment of research b the IPCC, decision making by the  UNFCCC in terms of governance protocols, establishment of uniform metrics for comparison of geoengineering and mitigation options, establishment of a time-limited moratorium on implementation and field-testing of climate geoengineering technologies, with subsequent implementation subject to the UNFCCC, and obligations on States to increase emissions reductions if they choose to deploy geoengineering technologies, in order to ameliorate potential termination effects.

This article should be a good jumping off point for class discussion on this controversial topic. Some potential discussion questions include the following;

1. Would the proposals of the authors likely help to ameliorate concerns of States that might otherwise oppose climate geoengineering research and/or deployment?;
2. Is quick deployment of climate geoengineering solutions an important criteria in determining potentially optimal geoengineering approaches?;
3. Do you believe that climate geoengineering poses a moral hazard? How would we empirically test this proposition?

The Association of Environmental Studies and Sciences (AESS) is hosting a webinar on climate geoengineering on Friday, March 25 from 12.00-1.30pm EDT. The webinar will be presented by Dr. Wil Burns, Co-Director of the Forum for Climate Engineering Assessment.

For further details about the webinar, and to register, visit the AESS site.

The third Global Energy and Environmental Law Podcast is ready and available here. Listen to Professor Mary Wood of the University of Oregon School of Law discuss her take on how governments around the world hold the climate in trust for the general public and might they may be held legally accountable for their failure to protect it.

For instructors looking to expand the ambit of their discussion of cap and trade systems beyond the EU-ETS, the centerpiece of Australia’s Clean Energy Future Package, its carbon pricing mechanism, is poised to begin operation on July 1, 2012. The legislation, passed in 2011, will establish a carbon price for approximately 60% of Australia’s emissions, including fuel use associated with electricity generation and industry, fugitive emissions from mines and waste, and household emissions via upstream liability for fuel distributors. The scheme will initially launch with a de facto carbon tax of AID $23. with a transition in three years to an emissions trading system.

The next few entries of this blog will summarize some good potential readings for students in this context, beginning with a two-page article (open access) in the most recent issue of Nature Climate Change. Among the take-aways from this article:

1. Efforts to compensate households for price increases associated with the scheme include income-tax cuts for lower income groups, an approach that hasn’t been implemented often in carbon pricing schemes; however, the government has struggled to effectively communicate the impacts of this approach;
2. While emissions-intensive industries will receive free permits valued at over AUD $3 billion, there’s very little evidence to justify shield trade-exposed companies from competition; there’s no real economic justification for payments to emissions-intensive coal-fired power plants These payments smack of the fruits of lobbying by industry;
3. The Liberal opposition party has expressed a desire to repeal the carbon pricing scheme, and while this would likely prove to be a daunting political task, it could transpire after the next election in 2013.

The piece also includes a concise history of the development of the carbon pricing mechanism, as well as excellent discussion of the difficult politics in Australia that may imperil the scheme’s future.