David Hunter on CPRBlog {Bio}

Making private companies pay their share for climate change: a new study could revive climate change litigation

Efforts to hold private companies responsible for their contribution to climate change just took a big step forward, thanks to researcher Rick Heede.  For the past eight years, Heede has painstakingly compiled the historical contribution of fossil fuel companies to today’s concentrations of greenhouse gases.  According to Heede’s study ”Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010,” which was published in Climatic Change, just 90 enterprises have accounted for over sixty percent of total industrial carbon dioxide and methane emissions.  And just five private oil companies-- ChevronTexaco, ExxonMobil, BP, Shell and ConocoPhillips—have accounted for more than 12 percent of such emissions.

This data is a potential game-changer in how we think of responsibility for climate change.  The fossil fuel industry would like us to believe that we are all equally culpable every time we turn on an ignition or a light bulb.  But we are not all equally responsible for decisions that have led to climate change—and we certainly have not all benefited from climate change the same way that the five oil companies have.  In addition, several of the top emissions contributors actively promoted climate change denial campaigns.

This data is legally significant as well because it gives courts a fair and defensible way for allocating responsibility for damages caused by climate change.  Courts need no longer fear that it would be impossible to untangle the private sector’s historical contributions to climate change or unfair to make oil companies, for example, pay for all climate-related damages.  A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most from the public nuisance created by their emissions. Take, for example, the costs of moving the Inuit village of Kivalina, which attempted to sue several of the top polluters for the anticipated costs of relocating their village as a result of climate change.  Those costs could now be allocated to the major fossil fuel companies based on their historical contributions to the problem.   

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World Bank Risks Weakening Environmental and Social Standards

The World Bank has started a process that appears likely to weaken its environmental and social safeguard policies.  Although the Bank has repeatedly stated there will be no “dilution” of the policies, the Bank’s scoping paper released in October and its ongoing consultations clearly reveal a desire to replace clear standards with discretion and deference to its developing country borrowers.  The Bank, whose environmental and social safeguard policies have long provided important minimum standards for protecting communities affected by international development projects, now runs the risk of sacrificing its leadership role, disempowering affected communities, and forfeiting development effectiveness by once again financing projects that are human rights and environmental disasters. 

Of course the Bank doesn’t say in so many words that it wants to deregulate, but the goals of the policy review is now clear from their scoping paper.  It speaks of the desire to take a less “prescriptive” approach and one that will be more “supportive” of its developing country borrowers.  Nothing in the paper speaks to protecting minimum rights or interests of affected people.  The Bank anticipates that one of the risks is they will be “perceived to weaken their standards,” implicitly dismissing the likelihood they will actually weaken their standards and rejecting those who want clear standards as just fighting over words. The Bank fails to recognize that a change in words from “must” to “may” disempowers communities affected by their projects when it sacrifices rights as requirements to the discretion of the Bank staff. 

The Bank’s strategy is to follow their sister organization, the International Finance Corporation (IFC), in replacing clear environmental standards with a more “integrated approach” that relies on environmental management systems. The IFC’s Environmental and Social Performance Standards apply to private sector lending.  The Bank views the IFC standards as a success, in part because they have been widely followed by commercial banks conducting private finance in developing countries.  Although accepted by industry, there is no evidence the IFC’s discretion-laden approach has contributed to development effectiveness or protected vulnerable communities.  The World Bank is also mistaken if it thinks the same discretion-laden approach will work better in the public sector.

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Meeting Low Expectations at Rio+20

This is not your father’s Earth Summit.  This week’s UN Conference on Sustainable Development is meant to assess how far we’ve come from the 1992 UN Conference on Environment and Development (ambitiously named the Earth Summit).  And the 1992 Earth Summit was ambitious, featuring the largest gathering of world leaders in history as well as thousands of civil society and private sector participants whose presence heralded the emergence of a global environmental movement.  The original Earth Summit endorsed sustainable development as the conceptual framework for the future balancing of environment and development.  It also reshaped international environmental governance, completing binding treaties on climate change and the conservation of biodiversity; the Rio Declaration, with its overarching principles of sustainable development; a set of non-binding forest management principles; Agenda 21, a five-hundred page blueprint for achieving sustainable development; and establishing the UN Commission on Sustainable Development to monitor progress. By any measure the Earth Summit was a major milestone in global environmental diplomacy. 

This week’s Rio+20 Conference arrives with much less ambition and even less optimism.  The Conference is highlighting two areas of general importance to sustainable development:  the institutional framework for sustainable development (governance) and promoting the green economy.  To these, in recent months delegates have added a call for sustainable development goals.  Broad enough to encompass virtually any subject, these three general areas have left governments struggling to focus on outcomes that are both feasible and worthwhile. 

The negotiations have thus far suffered from a desire to say something about everything, while at the same time saying nothing specific about anything.  Before arriving at Rio this week, negotiators had agreed to approximately 70 paragraphs, while nearly 300 more remained bracketed.  Compromise over the most political issues could not be reached until higher-ups arrived together in Rio.  Reports now suggest some progress is being made, and some outcome document will likely emerge.  There is no chance for any binding law to come from the Rio+20 negotiations, but the outcome could still signal important political commitments and establish a framework within the UN for addressing sustainability issues. 

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Executive Order Embraces International Regulatory Race to the Bottom as Official Administration Policy

On one level, President Obama’s Executive Order issued Tuesday, “Promoting International Regulatory Cooperation,” seems benign enough.  After all, who would be against international cooperation and a desire to “reduce, eliminate or prevent unnecessary differences in regulatory requirements”?  Moreover, the Order on its face does little more than set out priorities and procedures for enhancing international regulatory cooperation.

Unfortunately, this Order is a one-way regulatory ratchet that leads only to deregulatory changes in the United States that at best will provide no new protection to U.S. citizens or the environment.  The Order is motivated solely to eliminate “unnecessary” differences in regulatory requirements that “might impair the ability of American businesses to export and compete internationally.” 

The priority for regulators is clear. Scour our regulations and compare them to those of our trading partners—or better yet simply let the U.S. Chamber of Commerce lead you—to identify those areas of “unnecessary” differences.  What then?  Eliminate the differences by rewriting U.S. regulations to those of our trading partners, so many of whom have terrible worker safety and environmental policies (hint: China).   Nothing in the Order asks the agencies to conduct the hard negotiations or cooperation to change, let alone increase, the protections of our trading partners.  The clear expectation is that “unnecessary” differences will lead to the United States conforming our standards to those of the foreign regulators.   If “unnecessary” is read narrowly enough, the order could do little damage to our environmental and public health protections—but the pressures and signals in this Order all point toward an expansive witch hunt for “unnecessary” regulatory differences.   The Chamber of Commerce’s unusually zealous approval of this Order is not to be overlooked.

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Extending Protection to Wildlife: Why the United States Should Ratify the Agreement on the Conservation of Albatrosses and Petrels

a(broad) perspective

Today’s post is first in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties. 

Agreement on the Conservation of Albatrosses and Petrels
Adopted and Opened for Signature on June 19, 2001
Entered into Force on February 1, 2004
Number of Parties: 13
Signed by the United States, June 19, 2001
Sent to the Senate on September 26, 2008, and January 16, 2009

Albatrosses and petrels are oceanic birds with a unique natural history:  they typically breed on remote, barren islands and spend most of their time flying long distances over the ocean.  Some species may not return to land for many years after birth and then only briefly to reproduce.  This highly migratory natural history means that these birds spend little time in any single country’s territory; most of their life is spent in international waters, where they are threatened by industrial fishing practices and marine pollution.  For example, an estimated 300,000 seabirds are killed each year as by-catch in the long-line fishing industry.   

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Cap, But no Trade for Bella Center Passes; Meanwhile, Conference's Legacy of Transparency in Danger

Environmental negotiations have long set the standard for transparency and participation. The relationship between environmental organizations (of all kinds) and the negotiators has always been one tempered by a shared vision that the negotiations would succeed (in contrast to negotiations at the WTO or World Bank where “success” for many activists was often defined as the failure of the negotiations). The history of transparency and participation in environmental negotiations is taking a huge hit this week in Copenhagen—not because of a loss of a shared vision of success—but because the sheer scale of these negotiations has led to increasing security and a tightening noose around non-governmental participation.

It started on Monday morning. Literally thousands of participants arrived to pick up their registration badges and found instead large, slow-moving lines. In the end, some people stood in the cold for 10 hours and never got into the Bella Center, the enormous complex holding the negotiations. Even participants who had received their credentials earlier in the week had to stand in the line for an hour or so. Greenpeace, in what has to be one of their most appreciated actions of all time, served free coffee to the cold people standing in line—until the police cordoned them off saying “we’ll now decide who gets coffee here.” Some advocates for veganism passed out material while dressed in warm-looking chicken suits. At least the restrictions were democratic; the head of the Natural Resources Defense Council stood next to a law student from American University Washington College of Law, and both waited in vain.

By Tuesday, the United Nations had instituted their “secondary badge” system. Seven thousand badges were released to non-governmental organizations. Most organizations received passes for about one-third of their delegations. Despite the Secretariat’s presumed love of cap-and-trade for emissions, the badges are not transferable between organizations. The Secretariat was apparently concerned that compliance would be more difficult if they allowed trading, and organizations would sneak more than one person in with each badge. Apparently, monitoring against leakage is harder for secondary passes than it is with the offset emissions market. If you have too many passes, said the Secretariat, you can turn them back and they will reallocate them. The plan was to tighten participation further over the week as only 1,000 passes would be allowed on Thursday and only 90 observers on Friday, though that number was apparently raised to 500. No one knows how these later passes will be allocated. (Perhaps they should try an auction).

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In Copenhagen, Progress on Financial Pledges Limited; Draft Document Punts Details to COP-16

Although virtually all of the attention regarding Copenhagen in the United States focuses on mitigation targets, in the developing world a primary focus of any environmental agreement is on the scale, sources and governance of any financial resources being made available. This is particularly true in Copenhagen, where the Global South has demanded upwards of a trillion dollars in development assistance over the next decades. That number is almost certainly out of reach, but with only a few days left of the negotiations none of the numbers are adding up, and there is little clarity over the scale, structure, or sources of climate financing.

Monday's distribution here of a new “facilitators draft” on financial resources (not publicly online, at least at the moment) did little to clarify the situation, punting most of the details to next year’s COP-16. The draft contemplates a new (as of yet unnamed) mechanism to coordinate all funding arrangements under the COP. In addition to that coordinating mechanism, a new fund would be created to provide support for both mitigation and adaptation efforts.

More generally, discussion of financial resources has been split into both short-term finances (meaning between now and the end of the Kyoto Protocol) and medium or long-term commitments. The final amount in either category is not easy to predict, particularly because the United States has yet to table any specific overall number for increased climate-related financial support. Yesterday, Secretary of Energy Stephen Chu announced a $350 million, five-year plan to support the deployment of renewable energy technologies in developing countries. Welcome news, but rather oddly timed given that delegates are waiting for more clarity on the overall assistance package the United States is expected to announce later in the week. The Europeans have announced $3.4 billion a year financing for the short-term (between 2010-2012), but they have not promised that this will all be additional funding. Japan, reportedly, will offer $10 billion over the course of three years. Under the UNFCCC and Kyoto Protocol, financial support is supposed to come from new and additional resources, which is short hand for ensuring that any promised climate-related support is not merely a shift in development assistance from support for the Millennium Development Goals or related poverty alleviation goals.

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(Re)Defining Success at Copenhagen: Here's What I'll be Looking For

As the first week of formal negotiations at the Copenhagen Climate Summit comes to a close, the United States and China are exchanging barbs and little progress is being made … but behind the scene many negotiators remain confident that at least some form of a political agreement can be reached that will move global climate governance significantly forward.

Beginning on Sunday I will join fellow CPR Member Victor Flatt (see his preview on offsets and adaptation) as a credentialed non-governmental observer at the Copenhagen negotiations. I and six of my students from the American University Washington College of Law will be supporting the work of the Center for International Environmental Law and the Climate Law Policy Project, as well as other organizations. We will be looking at issues relating to the future financial architecture for responding to climate change; the reduction of emissions from deforestation and forest degradation (REDD); measurement, reporting and verification requirements; and implications of the climate regime on other sustainable development goals such as human rights and the conservation of biological diversity.

The general framework of a likely “political” agreement emerging from Copenhagen began to take shape in the days leading up to the negotiations, and has been largely reflected in the so-called “Danish” draft released on the second day of the negotiations.

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