Doom-laden concerns over recent wildfires, heatwaves and floods contrast with the optimism following the Paris Agreement just three years ago. Global Insight speaks to the leaders of the fight for environmental justice to find out what should happen next.

The world’s getting hotter, and fast. In July 2018, a Canadian heatwave led to 74 deaths in Quebec. Meanwhile, on the other side of the planet, 80 people died and 22,000 were hospitalised when, for the first time, temperatures in Tokyo exceeded 40°C. In July, extreme landslides and flooding claimed 300 lives in Japan’s deadliest natural disaster since the 2011 Tohoku earthquake and tsunami.

These aren’t isolated incidents. In Europe, Greece was ravaged by the worst wildfires the continent has seen in over a century. Kerala, in India, witnessed its worst flooding since 1924, leaving 400 dead and a million evacuated from their homes. California’s no stranger to wildfires, but the Carr Fire in July saw a thousand buildings, many of them residential, burnt to a crisp. The human cost is clearly devastating, and the financial cost continues to rise, too: in California, expenditure on firefighting alone has tripled in five years – to $773m.

It’s just three years since over 190 nations gathered to find common ground on climate change at the December 2015 United Nations Climate Change Conference (COP21). World leaders and civil society groups rejoiced as it seemed a solution had finally been found. Yet, even as the rise in natural disasters suggests the war against global warming is being lost, President Trump threatens to make the United States the first country to renege on the deal. And, in August 2018, French Environment Minister Nicolas Hulot’s shock resignation suggested even the most committed governments may not be doing enough.

Now more than ever

James Thornton is Chief Executive Officer of ClientEarth, the innovative non-governmental organisation (NGO) committed to protecting the global environment by using the law to shift the balance in favour of the public good. ClientEarth holds governments to account in court and forces polluting industries to shut down. Its ultimate aim is to create long-lasting and embedded change. Thornton argues that accords like those negotiated in Paris are needed more now than ever before. ‘These international agreements become more and more important because what we’re seeing is how the rule of law is being challenged in individual countries, even within Europe,’ he tells Global Insight. ‘Environmental issues, more than any other issue, are global issues. They need a global framework where all countries can agree and then undertake change at home.’

Born and raised in the US, Thornton established ClientEarth in London in 2007, hoping Europe would be where he and his colleagues could make the most impact. Increasingly, though, his attention is turning eastwards, to China, where ClientEarth has established an extensive training programme for judges.

‘Working in China is one of the things that gives me the greatest hope in life,’ says Thornton. ‘There are now 3,000 environmental court judges in China. They have put in place a whole series of steps: new legislation and, in terms of the courts, they’ve created an environmental panel on their Supreme Court and then environment courts going all the way down to the local levels, so if you bring a case involving the environment anywhere in China, it will be in an environment court.’

Thornton says the response by the Chinese courts and the Chinese government to tackling environmental issues could act as a blueprint for other countries on how they should approach climate change.

‘Discontent in China is so high because of environmental pollution. There is a cultural issue of needing to be seen to address it, as well as actually addressing it, so that the government is responsive to what the people are clearly articulating that they need,’ he says. ‘And at the moment if a government isn’t thinking long term and taking care of the environment for future generations then they’re not taking care of the present people either. That’s what the Paris Agreement offers.’

The Paris Agreement was the first climate deal to make both developed and developing countries commit to targets for emissions reduction. During the climate talks, governments set out a plan to mitigate the worst effects of global warming and established Nationally Determined Contributions (NDCs) to limit global warming to well below 2°C. Some felt the agreement lacked ambition and rigour. For others, it offered the necessary framework and long-term vision required to salvage our environment for future generations.

Conor Linehan is Vice-Chair of the IBA Presidential Task Force on Climate Change Justice and Human Rights. ‘I’ve always seen it as a real achievement in terms of getting 197 countries to come to a consensus,’ he says. ‘The fact of the matter is that if you look at the UN Environment Programme’s register of environmental treaties, one thing that’s certain is that the more parties there are to an international treaty, the softer law it is. That is the reality of what you’re getting with the Paris Agreement. It’s a global agreement, it’s a major transboundary problem and everybody has to be on board.’

Achala Abeysinghe is Principal Researcher, Climate Change, at the International Institute for Environment and Development. Since 2009, she’s acted as the legal and strategy advisor to the chair of the Least Developed Countries (LDCs) Group during COP21 – a group of 47 nations highly susceptible to global warming. ‘We are one of the very few negotiating groups that pushed for the 1.5°C target in the Paris Agreement,’ she says. ‘We also fought for the agreement to be as participatory as possible with the understanding that the climate change problem can’t be solved by a few countries on their own. Everybody has to work together. So we pushed for the agreement to be applicable to all parties, but at the same time ensure that there was enough support for developing countries who would not otherwise be able to perform under the Paris Agreement.’

Abeysinghe also believes the LDC’s brought an essential ‘moral voice’ to the negotiating table. ‘Studies show that the highest impact related to climate change is in the LDCs. They’re the ones who suffer the most and they bear the brunt of the whole thing. Because of this suffering, they need to be part of this whole conversation,’ she says, but stresses they ‘have to meet their NDCs. Many of them have the most ideas and make the most progress. They don’t spend their time talking about having meetings. They come up with solutions and want to be part of the solution.’

A key part of the success of COP21 was the level of engagement not only from governments, but also business and industry. ‘Our global leaders could see how we were going to achieve this in Paris in terms of the scaling up of clean technologies and a significant reduction in costs,’ says Anthony Hobley, CEO of London-based think tank the Carbon Tracker Initiative. ‘Importantly, it was because the financial markets were engaged.’

Hobley says this engagement has been crucial to maintaining the momentum of the climate change debate in the financial sector. ‘In Paris, for the first time ever at an international climate negotiation – and I’ve been to a lot of them – you had the Governor of a major central bank, the Bank of England, Mark Carney, not only attend, but make a major announcement standing next to one of the world’s most successful billionaires, Michael Bloomberg. They’ve been working together on the G20 Task Force on Climate-related Financial Disclosures. That’s something that Carbon Tracker had been advocating for a long time and we consider that one of our biggest successes.’

Even before Paris, there were indications that financial institutions like the International Monetary Fund (IMF) and the World Bank were starting to take climate change seriously. ‘I think you could say that both the IMF and the World Bank and their lending policies supported, aggressively, fossil fuel development for a long time,’ Mary Robinson, President of the Mary Robinson Foundation – Climate Justice, tells Global Insight. ‘That’s changed completely. The President of the World Bank Group today, Jim Yong Kim, and the President of the IMF, speak out on climate like I do, and with a sense of urgency, and even talk about the injustice of climate, so they’re trying to get their rather large institutions to change tack.’

Robinson, who served as UN High Commissioner for Human Rights from 1997–2002, says even the UN was guilty of not recognising the need to tackle climate change more broadly. ‘Until recently, the UN, under the Secretary-General, didn’t really talk about climate,’ she says. ‘It was for the UN Framework Convention on Climate Change [(UNFCCC)] in a siloed way, for environmentalists and scientists, and that gave us the wrong impression in these conferences of the parties and that nobody knew what was happening.’ The decision by former Secretary-General Ban Ki-moon to host a climate summit in Doha in 2012 was instrumental in bringing the issue ‘right into the mainstream for heads of state and government,’ says Robinson.

Trumping Paris

Scarcely a year after the highs of COP21, the newly elected Trump administration was already moving quickly to dismiss climate change. President Trump announced a series of measures to reverse changes implemented under the Obama administration, including plans to rescind the Clean Power Plan and renege on the Paris deal.

By August 2018, the US Environmental Protection Agency (EPA) had unveiled details of a new Affordable Clean Energy proposal, which would devolve the regulation of coal-fired power plants to states and allow them to set their own carbon emission targets. This was a boost for America’s beleaguered coal industry, but a blow for the fight against climate change.

Obama’s Clean Power Plan set carbon-cutting targets in every state, with projected state-wide reductions in carbon emissions of up to 32 per cent by 2030. The EPA has admitted its proposal will bring a reduction of just 1.5 per cent.

This isn’t the first time the US has reneged on a global climate deal. In March 2001, shortly after taking office, President George W Bush announced he would not implement the 1997 Kyoto Protocol – the first international agreement brokered to keep global warming in check. ‘By 2000 and early 2001, the whole process of developing the implementing rules for the Kyoto Protocol had run into real trouble,’ says Linehan, who is Head of the Environment & Planning Group at William Fry. ‘COP6 in the Hague was a complete failure. There were huge policy differences between blocs of countries. Developing countries resented growing Organisation for Economic Co-operation and Development emissions; developed countries resented developing countries’ reluctance to take on emissions-reduction commitments.’

The 2001 US withdrawal was like ‘shock therapy’ to the climate negotiations, says Linehan, and actually reinvigorated the entire climate justice movement. Seventeen years on, much the same thing is happening after Paris. ‘Many think that actually what Trump has done is galvanise the climate movement in the US like no other,’ says Hobley. ‘What has emerged is America’s pledge, which has been pioneered by the Governor of California, Jerry Brown, alongside Michael Bloomberg, to mobilise all these US cities, states, towns and regions to all make commitments and the objective is that the US still meets its Paris target regardless of what the federal government does.’

Roger Martella is Vice-Chair of the IBA Presidential Task Force on Climate Change Justice and Human Rights and served as General Counsel at the US Environmental Protection Agency from 2006–2008. He agrees that the US’ decision to withdraw from the accord has left a considerable gap for others to fill. ‘Obviously the US has changed its position on Paris, but I think we’ve seen two things as a result,’ he says. ‘Internationally, most countries are staying steadfast to the commitments they made despite the position of the US. And even in the US, we’ve seen other parties stepping up to fill the gap; individual states like California and even cities are working to develop their own commitment to climate change and greenhouse gas (GHG) reduction to demonstrate their support for the Paris Agreement. At the end of the day, it’s not the government’s GHG reductions that matter. It’s the actual reductions. So if you have other parties committing to reduce GHG, you’re effectively getting to the same place.’

In mid-September, business and government leaders gathered in San Francisco for the Global Climate Action Summit. They quickly discovered many challenges facing even the most well-meaning of US states. ‘These states are doing what they can but of course the two biggest sources of GHG emissions in the US are coal-fired power plants and motor vehicles,’ says Michael Gerrard, Faculty Director of the Sabin Center for Climate Change Law. ‘Very few of the coal-fired power plants are located in the states that are stepping up, so those states have very little control over the emissions from their neighbouring states, except they can refuse to buy power. California, for instance, imports a lot of electricity from Arizona, New Mexico and Utah – states that do have a lot of coal – so it can refuse to buy that power, but it can’t do anything about the burning of coal in more remote states.

The states that want to can do a lot, but there are still limits on what they can do and it’s only some states.’

Like many other coastal states, California is most exposed to the ill effects of climate change. It’s been a consistently dissenting voice, regularly going against federal government thinking. In April, the Golden State adopted a new hydrofluorocarbon regulation prohibiting their use in certain refrigerators. The move replicated an EPA regulation that was overturned by a federal court in 2017 and is still under appeal.

Trumping Trump

Although the US federal government sets emission standards for motor vehicles, the state of California brokered an exemption under the Clean Air Act, which enables it to enforce stricter pollution and fuel efficiency standards. A dozen other states followed suit, but as Gerrard notes, this could all be about to change. ‘California would like to keep these strong standards, whereas the federal government wants to weaken them,’ he says. ‘Trump is now threatening to take away the California exemption and that will be challenged in court.’

Such challenges have sparked concern over the potential rolling back of US environmental laws. However, John Cruden, the former Assistant Attorney General for the Environment and Natural Resources Division of the US Department of Justice (DoJ), says court battles on these sorts of issues are just par for the course. ‘The new administration has essentially suspended the Clean Power Plan and said that they intend to relook at it and maybe change it in some ways,’ Cruden tells Global Insight. ‘But I think what’s lost on some people is that it still exists. The Clean Power Plan still exists, it is simply not being implemented right now. In order to change it you have to go through another process just as you did when you created that plan. At different stages, if you make decisions, those decisions can, and I’m sure will, be litigated.’

Like many others, Abeysinghe takes issue with Trump’s assertions that the Paris Agreement isn’t legally binding. ‘While leaders like Trump can come in and say “this is not what we agreed”, if you actually think of climate change as a problem that needs to be addressed by all, you take the agreement in good faith and agree that it does have those obligations and we need to perform better,’ she says. ‘If you’re going to interpret the articles in a legalistic manner, a party that has ratified the Paris Agreement should not say that it doesn’t have any legally binding obligations. It does, very clearly.’

Despite the current administration’s stance, Cruden believes the US will continue to play a crucial role in the climate change debate, even if much of its time is spent in the courtroom. ‘The US has had a significant leadership role – as we saw with Volkswagen. By going first, I think we’ve sent a message,’ he says. ‘My hope is that – if not by leadership then by example – the prosecution cases will continue and what we’re seeing right now is that the Trump administration is trying to second-guess some of those regulations. They’re not going to be able to second-guess all of them. As we’ve seen already in a few cases, I believe the courts will not join with the administration in setting aside some of those regulations.’

‘Everything that Trump is trying to do on climate change will be challenged in court by the environmentalists and by the states that want action,’ agrees Gerrard. ‘Just as everything that Obama did on climate change was challenged in court by industry and the states that did not allow action.’ One significant case, a 2015 climate action filed by children in Oregon known as Juliana v United States, is set to go to trial at the end of October. ‘The Trump administration has tried very hard to get that put off, including a petition to the Supreme Court, but that has all failed, so I think that trial will receive a great deal of attention,’ says Gerrard.

Several states and cities have also got in on the act, but with varying success. In June, a California court dismissed a lawsuit filed by the cities of San Francisco and Oakland to sue Chevron, ExxonMobil, Royal Dutch Shell and BP for damages associated with flooding they alleged was caused by climate change. A federal judge in New York threw out a similar lawsuit brought by New York City in July, saying the ‘problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case’.

A spokesperson for Shell told Global Insight that the challenges posed by climate change required ‘unprecedented collaboration from all segments of society and can only be met with government policy and cultural change to drive low-carbon choices for businesses and consumers’. The spokesperson added that lawsuits, like the New York case, were not the answer and ‘conveniently ignore that access to reliable, affordable energy delivered by fossil fuels is of benefit to all of society, and all of society now has a role to play in tackling climate change’.

New York and Massachusetts are locked in a long-running dispute with ExxonMobil, alleging the company withheld research from investors and the public on the potential impact of climate change on the business. Global Insight approached ExxonMobil for comment, but the company declined, saying it doesn’t ‘have anything to share on this’.

Litigation is also becoming an increasingly important tool in other countries to bring about environmental change (See box: Litigating for change). Martella has seen first hand how litigation can change governmental policy. In 2007, while he was at the EPA, the US Supreme Court handed down a landmark ruling that the EPA was responsible for regulating carbon and GHG as pollutants under the Clean Air Act. The impact of the case, Massachusetts v EPA, reverberated around the world. ‘To me, it was a critical pivot in terms of legitimising what was, even up until 2007, something of a debate about climate change,’ says Martella. ‘It was more a position that, if we can get some climate change benefits from another policy, we’ll recognise those benefits, but the government was not doing anything specific to address climate change. That all changed after Massachusetts v EPA, where you then had permanent policies, particularly under the Obama administration, to address climate change. We saw towards the end of the Bush administration and into the Obama administration a big staffing up on the issue. I don’t think the impact of Massachusetts v EPA was limited to the US. A lot of other NGOs, citizens and governments looked at that decision and said, “OK, we have to start taking this seriously now too.” I really think the ramifications of the case were felt around the world.’

Business stepping up

The Paris Agreement puts an onus on countries, not companies, to meet the NDCs. Yet, as US states step up their efforts to fulfil their country’s commitment, Thornton says businesses must follow suit. ‘If companies don’t become interested and don’t want to take any lead we’re not going to get where we need to be in terms of climate change,’ he says. ‘The good news is that many are interested and many are doing the right thing. Some out of altruistic reasons. Some out of very sound economic reasons. So now, in much of the world, solar panels are cheaper than coal or even oil and gas. Saudi Arabia is going to begin to divest from Saudi Aramco – the national oil company – and it’s preparing to invest an enormous amount in solar energy in a deal that I understand will be with the Chinese. So this opens up a new world of nations and companies working together to do the right thing.’

The International Energy Agency estimates that $1.8tn is invested in the energy sector annually and that clean energy makes up a growing proportion of this figure year-on-year. Thornton believes strongly that companies have a legal responsibility to help countries transition towards a cleaner, greener economy. ‘The climate risk is now clearly understood, whatever some sceptics may say,’ he says. ‘There is universal scientific agreement on it and there are various ways for it to trigger the legal duty that comes from being a fiduciary because climate risk now equals financial risk. That triggers fiduciary duty and then if you are a manager of another person’s money you have the duty to manage financial risk.’

While being encouraged to pursue cleaner energy options, fossil fuel-based companies also face mounting pressure to be more transparent about their contributions to global warming and the potential impact of climate policies on their bottom line. The risks posed by the ‘carbon bubble’ are also prompting companies and governments to divest from carbon-based assets for practical reasons (see box: Energy companies face $25tn risk from carbon bubble). In September, Chevron, Exxon and Occidental Petroleum joined the Oil and Gas Climate Initiative, a group of companies that supports reductions in GHG emissions.

The Initiative already receives the backing of ten other major oil companies, including BP and Shell.

This divestment movement will be vital, but is only part of the solution, says Hobley. ‘This is fantastic, but it needs to be working alongside other tools like engagement. It’s also important that there are significant shareholders not just to divest in – although it might result in a financial sanction if the companies do not change as a result of the engagement – but engage in and put these companies under pressure to change.’

It’s this kind of pressure, says Martella, which, more than anything, will make up for any nations that renege on their commitments made in Paris. ‘The driver for GHG reduction is not going to be whether any one country does or doesn’t set targets,’ Martella. ‘It’s going to be the market and these types of pressures that drive corporations to be cognisant of and reduce their GHG footprints and look towards renewable energy, regardless of any one country’s commitment.’

Opportunity knocks

Under the Kyoto Protocol, only developed countries – as historically the biggest polluters and contributors to GHG – were required to reduce their emissions. This all changed at COP21, when both developing and developed nations committed voluntarily to their own domestic emission targets under the UNFCCC. This created a challenge for the LDCs since many of them are resource-rich but money-poor, lack basic access to water and electricity, and rely heavily on foreign investment in operations that often carry a high carbon footprint.

Yet, where there’s a challenge, there’s usually an opportunity. Abeysinghe, who still advises the LDCs on legal and technical strategy, says foreign investors now have scope to move away from fossil fuels and help developing countries exploit their potential in greener technologies. The right approach is essential, she says: ‘For most of the political leaders in the LDCs, climate change is not the most ideal priority because it has a long-term aspect to it as any changes they make won’t have a tangible impact within their five-year term. Unless somebody else goes in and says: “Here’s an alternative, here’s the technology. I understand your budgetary constraints, therefore here’s a grant to do this, but the condition is that you should not agree to the coal power plant, but you will have the same effect on the ground because you will give energy access to the same number of people through this technology.”’

Several LDCs, including Angola and Myanmar, have already begun drafting policies and laws in this area – a positive sign that Paris is being taken seriously. Abeysinghe hopes this will help encourage foreign investors to look to developing nations as common partners in the global fight against climate change. ‘I think once these countries have these kinds of measures in place then investors will see this as a positive thing,’ she says. ‘And they’ll be thinking of change along the lines of what the country actually needs, in terms of addressing climate change and meeting the Sustainable Development Goals.’

Paris isn’t the end of the story either. Laurent Fabius, former President of the COP21 talks and UN Environment Patron on Environmental Governance, is just one of an eminent panel of judges that has lent their expertise to ClientEarth’s training programme in China. Fabius has also been spearheading a new initiative, the Global Pact for the Environment, which is expected to become the first international treaty covering global environmental governance. Thornton says the treaty – which is hard law insofar as international law is concerned – could mark an exciting new chapter. ‘Each country that is a signatory would agree to certain fundamental environmental standards, basically to try and ensure that people have a safe and healthy environment,’ he says. Thornton believes it would also build on the success of the Aarhus Convention, which was signed in 1998 by predominantly European states and provided a crucial bridge between environmental protection and human rights. ‘What it would also do is bring in Aarhus-type rights for every country globally that’s a signatory, and that would be a greater advancement of the Aarhus Convention itself. I hope the Global Pact becomes the next stage in the global consensus on environmental rights.’

Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org