The Enormous Significance For Climate Law and Ethics Of a Dutch Court’s Order Requiring the Netherlands To Reduce Its GHG Emissions by 25% by 2020

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I-Introduction

In June, a Dutch court in the landmark Urgenda decision concluded that the Netherlands must reduce its ghg emissions by 25% below 1990 levels by 2020.  This is the first case in the world where a national government has been ordered by a court to reduce its greenhouse gas (ghg) emissions commitments by a specific amount on the basis that its current commitments and polices are not legally sufficient. This case had enormous potential significance not only for climate change law but also for ethical arguments made about what a nation should do to reduce its ghg emissions if the case for one reason or another is not directly applicable to legal responsibilities of nations other than the Netherlands.

Although the court’s decision on the Netherlands’ emissions reductions has been widely publicized around the world, the logic that the court used to conclude that the Dutch government had a duty to reduce its ghg emissions by 25% below 1990 by 2025 has received little media attention despite the fact that much of the court’s reasoning is potentially legally applicable to the responsibility of all other developed nations. And so, the reasoning in the Urgenda case could be used by proponents of stronger responses to climate change in other countries. Yet, as we will explain in this post, despite the fact if other courts apply the reasoning in the Urgenda to other developed nations, many developed nations including the United States, Australia, Canada, and New Zealand would be required to increase their national ghg emissions commitments or INDCs, recent science on how much ghg concentrations in the atmosphere can rise without causing dangerous climate change supports the conclusion that the Dutch court mandated ghg emissions reductions target of -25% below 1990 levels by 2020 is  still not stringent enough.

Much of the Court’s logic in its decision is relevant to the ethical issues that nations must face in developing climate change policy, even if the court’s reasoning in the Urgenda case is not directly legally applicable in other countries, After identifying the court’s legal reasoning in the bulleted paragraphs below, the significance of the legal reasoning for climate change ethics is identified in italics.

This post first reviews the Dutch Court’s logic that is relevant to how other nations should determine their ghg emissions reduction commitments under the UNFCCC, or INDCs. This is followed by a brief comment on the significance of the legal reasoning for climate change ethics.

II. The Urgenda court’s logic and its ethical significance.

Although the Dutch court relied in part on Dutch law to reach its decision which is not likely relevant to other developed nations, In reaching its decision that the Netherlands must reduce its ghg emissions by 25% below 1990 levels by 2020 and 40% below 1990 levels by 2030, the court relied upon the following legal reasoning which could be followed by other developed nations:

  • ALL developed parties agreed at the Cancun COP in 2010 to act with a view to reducing global greenhouse gas emissions so as to hold the increase in global average temperature below 2°C above pre-industrial levels, and that Parties should take urgent action to meet this long-term goal on the basis of equity.

This is grounds for the conclusion that nations have an ethical duty, even if the legal promise cannot be enforced, to adopt policies that will reduce their ghg  emissions to the nation’s fair share of global emissions that at a minimum are sufficient to limit warming to 2°C. Yet, because temperature increases below 2°C will impose harsh impacts on vulnerable people and nations, an ethical argument can be made that nations have an ethical duty to do whatever they can to limit any further warming. Particularly because there is scientific concern that warming of less than 2°C may trigger the catastrophic warming that the 2°C warming limit was designed to protect against, there is a strong ethical argument that nations need to do more than adopt policies that would allow warming to 2°C. 

  • The court relied upon the 2007 IPCC’s 4th Assessment report including conclusions to achieve a goal of limiting warming limit of 2 °C, ghg atmospheric concentrations stabilized at 450 ppm CO2 would create a  50% chance of preventing warming greater than the 2 °C warming limit.

As above, nations have a clear ethical duty, at the very minimum, to adopt policies that, working with other nations, will limit atmospheric concentrations of 450 ppm. Yet, as we will see below, stabilizing atmospheric ghg concentration at 450 ppm is likely not stringent enough to keep warming within 2°C not to mention that a more protective warming limit of perhaps 1.5 °C may be s needed to prevent catastrophic warming. Every national INDC is implicitly a position on what level of atmospheric ghg concentrations the nation is seeking to achieve in establishing an INDC and its fair share of global emissions the nation has committed to in selecting the INDC. 

  • The IPCC concluded to stabilize ghg emissions at 450 ppm, Annex 1 countries must reduce ghg emissions by -25% to -40% below 1990 levels by 2020 and -80% to 95% below 1990 levels by 2050.

All developed nations have both a legal and ethical duty to reduce their ghg emissions by a minimum of 25% by 2020 below 1990 levels but because the 450 ppm atmospheric concentration goal is not likely protective enough, the national commitments of developed countries must be greater than -25% below 1990 by 2020.   .

  • In identifying the -25% to -40% reduction range by 2020, the IPCC relied upon a study which examined different approaches to apportioning emissions between regions.

One way of resolving conflicts between equity frameworks is to deduce emissions reduction target levels by considering multiple equity frameworks that pass ethical scrutiny and averaging them. 

  • Several provisions of the UNFCCC have been agreed to by all nations including provisions in which nations agreed to: (a) under art. 2 of the UNFCCC  to adopt policies and measures that will lead to “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system,” (b) under art. 3 of the UNFCCC to protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities and accordingly, the developed country parties should take the lead in combating climate change and the adverse effects thereof,  (c ) to take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects and where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures.

Although it is not news to either lawyers or ethicists that nations have duties to adopt policies that will prevent dangerous climate change, to protect the climate for the benefit of future generations, to apply precautionary measures in developing climate policies, and that developed countries should take the lead in reducing the threat of climate change, this decision is the first legal decision to apply these principles to a national ghg emissions target. A strong argument can be made that nations have ethical duties to abide by these provisions in the UNFCCC on the basis of many ethical arguments including that nations have agreed to be bound by these provisions and nations should not break their promises..

  • Climate science leads to the conclusion that national climate strategies that achieve ghg reductions sooner rather than later are preferable because later-action scenarios pose greater risks of harsh climate impacts for four reasons:
    • First delaying action allows more greenhouse gases to build-up in the atmosphere in the near term, thereby increasing the risk that later emission reductions will be unable to compensate for this build up.
    • Second, the risk of overshooting climate targets for both atmospheric concentrations of greenhouse gases and global temperature increase is higher with later-action scenarios.
    • Third, the near-term rate of temperature is higher, which implies greater near-term climate impacts.
    • Lastly, when action is delayed, options to achieve stringent levels of climate protection are increasingly lost.”

This part of the decision is of great ethical importance because it interpreted various provisions of the UNFCCC to require nations to adopt climate policies that achieve ghg emissions sooner  rather than later. In doing this the court relied in part on an interpretation of the precautionary principle which has been rarely used for requiring nations to act quickly. Most commentators on the precautionary principle have used it to support arguments that nations may not use scientific uncertainty as an excuse for insufficient action. Yet the Urgenda court used the precautionary principle to conclude that this principle required action sooner rather than later because delay increased the risk of catastrophic climate impacts. 

  • The Dutch government’s argument that it should not be required to make major reductions because the Netherlands is only 0.5 % of global reductions and therefore its reductions will not affect global emissions because all nations have a global responsibility and a responsibility to take precautionary measures, nations have both an individual and joint responsibility.

This part of the decision is consistent with the ethical conclusion that all nations have ethical and moral duties to reduce their emissions to their fair share of safe global emissions without regard to the size of the nation. 

  • Article 21 of the Dutch Constitution requires Dutch authorities to keep the country habitable and to protect and improve the environment and imposes a duty of care on the State relating to the livability of the country and the protection and improvement of the living environment.

Although this conclusion is based on a provision of Dutch law, the legal reasoning supports the ethical conclusion that nations have a moral duty to protect the environment for the benefit of the nation’s citizens.

  • The Parties agree that due to the current climate change and the threat of further change with irreversible and serious consequences for man and the environment, the State should take precautionary measures for its citizens.

Although the precautionary principle is derivable from ethical reasoning, the decision supports the conclusion that the precautionary principle is binding on nations because they have promised to apply it. 

  • Since it is an established fact that the current global emissions and reduction targets of the signatories to the UN Climate Change Convention are insufficient to achieve the 2° warming limit and thus the chances of dangerous climate change should be considered as very high – and this with serious consequences for man and the environment, both in the Netherlands and abroad – the State is obliged to take measures in its own territory to prevent dangerous climate change (mitigation measures). Since it is also an established fact that without far reaching reduction measures, the global greenhouse gas emissions will have reached a level in several years, around 2030, that achieving  the 2°C warming limit will have become impossible, these mitigation measures should be taken expeditiously.

This legal reasoning also supports the ethical conclusion that nations must not only act ambitiously to reduce the threat of climate change but must also act quickly and rapidly. 

  • The State has argued that allowing Urgenda’s claim, which is aimed at a higher reduction of greenhouse gas emission in the Netherlands, would not be effective on a global scale, as such a target would result in a very minor, if not negligible, reduction of global greenhouse gas emissions. After all, whether or not the 2°C target is achieved will mainly depend on the reduction targets of other countries with high emissions. More specifically, the States relies on the fact that the Dutch contribution to worldwide emissions is currently only 0.5%. If the reduction target of -25% to -40% from Urgenda’s claim were met the State argues that this would result in an additional reduction of 23.75 to 49.32 Mt CO2-eq (up to 2020), representing only 0.04-0.09% of global emissions. Starting from theidea that this additional reduction would hardly affect global emissions, the State argues that Urgenda has no interest in an allowance of its claim for additional reduction. This argument does not succeed. It is an established fact that climate change is a global problem and therefore requires global accountability. The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor. The court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionte contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.

This is a very significant conclusion for climate ethics because many opponents of climate change polices have successfully argued that nations have no duty to act until large emitters like China and India act. The decision is very clear in explaining why such an argument is legally indefensible and also ethically unsupportable in light of the fact that climate change is a global problem and requires global responsibility, any anthropogenic ghg emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change, and emission reductions entail both a joint and individual responsibility of nations to act.

  • Urgenda is correct in arguing that the postponement of mitigation efforts, as currently supported by the State (less strict reduction between the present day and 2030 and a significant reduction as of 2030), will cause a cumulation effect, which will result in higher levels of CO2 in the atmosphere in comparison to a more even procentual or linear decrease of emissions starting today. A higher reduction target for 2020 (40%, 30% or 25%) will cause lower total, cumulated greenhouse gas emissions across a longer period of time in comparison with the target of less than 20% chosen by theState. The court agrees with Urgenda that by choosing this reduction path, even though it is also aimed at realising the 2°C target, will in fact make significant contributions to the risk of hazardous climate change and can therefore not be deemed as a sufficient and acceptable alternative to the scientifically proven and acknowledged higher reduction path of -25% to -40% in 2020.

This part of the opinion also confirms the ethical conclusion that higher and quicker ghg emissions reduction targets are ethically required  because slower, less ambitious targets will make the problem worse. 

  • In the opinion of the court, the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the State must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.

This part of the decision reiterates the conclusion that nations have an ethical duty to its citizens to prevent dangerous climate change. The court in another part of the decision also concluded that nations have a clear legal duty to not harm people outside of its jurisdiction under the “no harm” rule which is both expressly referenced in the UNFCCC and is customary international law but decided this clear duty was not relevant to the Urgenda case because the Urgenda plaintiffs were Danish nationals. 

III. Recent Scientific Conclusions in Regard to the Adequacy of the 450 ppm atmospheric Goal  

As we have seen, the Urgenda decision relied on the 2007 IPCC report on what emissions reductions would be required to limit warming to tolerable limits which assumed that 2°C2 was a reasonable warming limit for the world and that a 450 ppm CO2 atmospheric concentration was a reasonable atmospheric concentration target to give reasonable chance of keeping warming from exceeding the 2 degree C warming limit that has been agreed to by the international community.  Since then several scientific reports have  been published that claim : (1) the -25%  to -45% reduction levels identified in the 2007 IPCC report are not stringent enough to live within a carbon budget that will protect the world from warming greater than 2°C, and (2) that the 2°C warming limit and the 450 ppm CO2 concentration goal are not stringent enough to prevent dangerous warming .

Climate Tracker Global Emissions Reduction Pathway Needed to Limit Warming to 2°C

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A recent report by Climate Tracker summarized the most recent science on needed ghg reduction pathways to stay within the 2 degree C warming budget as follows:

Limiting warming below 2 degrees with a high chance means that total GHG emissions would need to be zero between 2060 and 2080 and likely negative thereafter CO2 emissions from fossil fuel combustion and industry would need to be zero by as early as 2045 and no later than 2065 and be negative thereafter.

Because total global emissions must be zero between 2060 and 2080, developed nations need to be zero before 2060. Since the 2007 IPCC on which the Urgenda decision was based called for developed nations to reduce their ghg emissions by -80% to -95% below 1990 by 2080, it is clear that emissions reductions called for in the Urgenda decision are now not sufficient to achieve the  2°C warming limit.

James Hansen recently issued an affidavit in support of litigation that has been intiated against the US state of Oregon which summarizes recent scientific views of many scientists in which he concluded that to protect against dangerous climate change, atmospheric CO2 must be brought down to 350 ppm and to achieve this the world needs to reduce ghg emissions by 6% per annum coupled with reforestation and improved forest and agricultural practices.

In this report, Dr. Hansen also claims that the required rate of emissions reduction would have been about 3.5% per year if reductions had started in 2005 and continued annually thereafter, while the required rate of reduction, if commenced in 2020, will be approximately 15% per year.

Applying these conclusions to the Urgenda decision leads to the conclusion that the Dutch court’s order requiring the Netherlands to reduce its emissions  by -25% below 1990 levels is not stringent enough to meet the Netherlands legal and ethical responsibilities to act to prevent dangerous climate change.

By 

Donald A. Brown

Scholar In Residence and Professor

Sustainability Ethics and Law

Widener University Commonwealth Law School

dabrown@gmail.com

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10 Reasons Why “Contraction and Convergence” Is Still The Most Preferable Equity Framework for Allocating National GHG Targets .

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(The Contraction and Convergence Equity Framework)

I. Introduction

Perhaps the most challenging policy issue raised by climate change is how to fairly allocate responsibility among nations, regions, states, organizations, and individuals to reduce global greenhouse gas (ghg) emissions to non-dangerous levels. This problem is generally referred to as the problem of “equity” in the climate change regime. It a central issue in climate change policy formation because each government policy on reducing the threat of  climate change is implicitly a position on that government’s fair share of safe global emissions. In addition, climate change will continue to get worse unless each country reduces its emissions to its fair share of safe global emissions.  Therefore, “equity” is not only a challenging issue in forming climate policies, it is perhaps the most critical policy question facing the international community.

This article identifies 10 reasons why the equity framework known as “contraction and convergence” (C&C) is the most preferable of all the equity frameworks under serious discussion around the world.  The end of this paper will acknowledge some alleged limitations of C&C yet explain why these limitations should be dealt with in one of several possible ways while adopting the C&C framework internationally.

C&C was first proposed in 1990 by the London-based non-governmental Global new book description for website-1_01Commons Institute. (Meyer, 2000) ( GCI, 2009) Basically, C&C is not a prescription per se, but rather a way of demonstrating how a global prescription could be negotiated and organized. (Meyer, 1999:305) Implementing C&C requires two main steps. As a first step, countries must to agree on a long-term global stabilization level for atmospheric ghg concentrations. Although a warming limit of 2 degrees C has been preliminarily agreed to in international negotiations, subject to the acknowledged need to examine whether the limit should be reduced to 1.5 degrees C in studies that are underway, once a warming limit is finalized it must be translated into a ghg atmospheric concentration goal and then a global ghg emissions budget can be calculated. As a second step, countries need to negotiate a convergence date, that is a date at which time the emissions allocated to each country should converge on equal per-capita entitlements (“convergence”) while staying within the carbon budget. During the transition period, a yearly global limitation is devised which contracts over time as the per-capita entitlements of developed countries decrease while those of most developing countries increase. C&C would allow nations to achieve their per capita based targets through trading from countries that have excess allotments.

And so the heart of C&C is the idea that justice requires that rights to use the atmosphere as a carbon sink must be based upon the idea that all human beings have an equal right to use the global commons, the Earth’s atmosphere. Because it would be impossible to achieve equal per capita emissions allocations in the short-term, C&C allows higher emitting nations to converge on a equal per capita target at some future date thus giving these nations some time to achieve an equal per capita target goal.

II. 10 Reasons To Support C&C

C&C is the most preferable equity framework  for the following reasons:

1.  Climate change is a classic problem of distributive justice. Distributive justice holds that all people should be treated as equals in any allocation of public goods unless some other distribution can be justified on morally supportable grounds. And so distributive justice entails the idea that at all allocations of public goods should start with a with a presumption of equal rights to public goods. Yet, distributive justice does not require that all shares of public goods be equal but put puts the burden on those who want to move away from equal shares to demonstrate that their justification for their requested entitlement to non-equal shares is based upon morally relevant grounds. Therefore someone cannot justify his or her desire to use a greater share of public resources on the fact that he or she has blue eyes or that he or she will maximize his or her economic self-interest through greater shares of public goods because such justifications fail to pass the test of morally supportable justifications for being treated differently. Because C&C ends up at some time in the future with equal rights for all individuals to use the atmosphere as a sink, it is strongly consistent with theories of distributive justice. Although distributive justice would also allow for other morally relevant considerations to be considered in allocating ghg emissions that diverge from strict equality, including such considerations as historical ghg emissions levels, these other considerations can be built into a C&C framework either by negotiating the convergence dates in a C&C regime or in side-agreements on such issues as financing technologies for low-emitting nations at levels that would allow them to achieve per capita emissions limitations.  C&C therefore is strongly consistent with theories of distributive justice because equal per capita emissions is the ultimate outcome of C&C even if that outcome is modified to take into account other legitimate equitable issues in negotiations by changing the convergence date or in side-agreements that finance compliance for poor nations that need assistance in achieving equal per capita emissions limitations.

2.  Allocating ghg emissions on an equal per capita emissions basis is consistent with the virtually universally recognized ethical idea that all people should treat others as they wish to be treated. And so basing allocations on equal rights is  the least contentious of all ethical theories of how to allocate public goods. Although there are are other ethically relevant facts that arguably should be considered in an allocation of ghg emissions such as economic capability to reduce emissions  or historical emissions levels, these considerations are more controversial ethically particularly in  regard to how they are operationalized in setting a numeric targets and therefore are more amenable to negotiated settlements on issues such as when convergence on equal per capita levels will  be achieved rather than in setting basic allocation target levels.

3. Equal per capita emissions levels are also consistent with human rights theories about the duty to prevent climate change. That is, human rights are based upon the uncontroversial ethical theory that humans should treat each other as they would like to be treated because all people, regardless of where they are,  should be treated with respect. Since the outcome of C&C is equal per capita rights, it is completely consistent with the idea of treating all people with equal respect, the foundation of human rights obligations. Because climate change undeniably violates several non-controversial human rights including the right to life, security, and food among other rights, climate change is widely acknowledged as a human rights problem. If climate change allocations are considered to be in fulfillment of human rights duties, then arguments based upon economic self-interest in setting ghg emissions targets are not an acceptable justification for avoiding human rights obligations. This is so because human rights obligations are viewed to ethically trump other values such as economic self interest or utility maximization as has been explained in significant detail in recent entries on this website. If human rights are violated by climate change, costs to those causing climate change entailed by policies to reduce the threat of climate change are not relevant for policy. That is if a person is violating human rights, he or she should desist even if it is costly to them. Therefore because a C&C framework has the strongest obvious link to human rights, if it were agreed to by the international community it would provide a strong argument against those who refuse to limit their emissions to an equal per capita level on the bases of cost to them.

4. Setting a ghg emissions target based upon distributive justice requires consideration of facts determined by looking backward, such as levels of historical ghg emissions, and issues determined by looking forward, such as what amount of the global commons should each individual be entitled to for personal use. Only equal per capita entitlements to the use a global commons satisfies future focused allocations issues without ethical controversy.  And so an allocation that converges on equal per capita emissions allocations sometime in the future is more than any other allocation framework likely to be seen as universally just as far as future entitlements issues are concerned. And so, the C&C should be supported because it is most consistent with equal entitlements to use global commons resources.

5, The C&C framework is the simplest of the dozen or so equity allocation frameworks which have been seriously considered in international climate change negotiations. Because it is simpler, it will likely be easier to negotiate than the other equity frameworks which have received serious consideration. Its simplicity is derived from the fact that its focus is narrowly on climate change justice issues. Thus it is not complicated by other global injustice issues which are not climate change related yet which are considerations in some other equity frameworks . For instance, other proposed ghg allocation formula try and remedy economic injustice among nations, issues which are worthy of international attention yet greatly complicate the ethical issues which need to be considered in setting ghg targets. Because C&C is simple, it is very pragmatic.

6. Objections to equal per capita allocations have sometimes been made by representatives from high emitting nations such as the United States because of the enormous ghg emissions reductions which would be required of it to reach equal per capita emissions levels of diminishing allowable safe global emissions.  Yet emissions reductions that would be required of high emitting nations under other proposed equity frameworks would be even steeper because they take into considerations issues such as, for example, historical emissions, economic wealth of nations, and ability of nations to pay. For this reason C&C holds the best chance of being accepted by the international community compared to other equity frameworks provided other issues that raise legitimate equity concerns including historical emissions levels are taken into account in some way in climate negotiations. These other justice concerns should be understood to be refinements of C&C rather than replacements of C&C because the C&C framework was always flexible enough to take into account additional issues relevant to distributive justice.

7. Many observers of international global efforts to achieve a solution to climate change argue that there has been too much emphasis on the obligations of nations while obligations of individuals and regional governments have largely been ignored. These observers argue that this focus on nations has helped high-emitting individuals and regional governments to largely escape public scrutiny. Because C&C obligations are premised on determining the obligations of nations based upon equal per capita shares, C&C can be seamlessly applied to state and regional governments and individuals around the world. If, for instance, a C&C framework determines that the world should converge on a per capita emissions target of 2 tons per person by 2025, it is therefore a straightforward deduction to argue that all individuals around the world  should limit their emissions to be below 2 tons per person by 2025 at a minimum.

8. Some of the issues that proponents of other equity frameworks have argued  should be considered in allocating national emissions targets such as historical emissions or the level of economic development in poor countries are already in serious consideration in international climate change negotiation agenda focused  on such matters as: (a) financial responsibility for adaptation, (b) responsibility for loses and damages for climate change, and (c) financing of climate friendly technologies for developing countries. Because of this the ethical issues raised by historical emissions or economic ability of nations to achieve a per capita allocation could be relegated to other issues already being negotiated in international climate change negotiations while emissions allocations targets are allocated on the basis of C&C.

9. Establishing a norm that each person is only entitled to emit ghgs on an equal per capita basis would also help to draw lines about other contentious ethical issues raised by climate change such as how to count responsibility for historical emissions. Determining how to translate historical emissions into legal obligations raises a host of contentious issues including when to start counting historical emissions. This question could be simplified by first determining reasonable per capita emissions at various moments in history. In addition, determining  liability for future excess emissions could be simplified if there was an agreement on acceptable per capita emissions. And so looking at the problem of climate change through a per capita lens helps draw lines about other climate change policy matters which will need to be faced. Therefore the  establishment of a C&C framework would help with other policy questions that must be faced in the future.

10. Many have argued that responsibility for reducing ghg emissions should not only be based upon production of ghgs within a nation, the current presumption of international negotiations, but on products consumed  in a nation but produced in another nations in processes which emitted ghgs.  Although this shift from production ghg to consumption related ghg as a way of establishing national responsibility to achieve ghg emissions reduction targets is not likely to happen in the short-term, those who desire to assign liability on the basis of consumption could also use the C&C framework more easier than other proposed equity frameworks.

III. Limitations of C&C

Other proposed equity frameworks were developed to deal with a few alleged  limitations of C&C. (As we have explained, C&C was always flexible enough to deal with additional issues relevant to distributive justice and therefore these alleged criticisms did not take into considerations the inherent flexibility of C&C.)

For instance, a second allocation formula which has received serious attention by the international community is the Greenhouse Development Rights Framework ( GDR) (Baer et al., 2008). GDR was developed, according to its proponents, because C&C does not leave adequate ghg emissions to allow developing nations to develop to levels that would allow them to escape grinding poverty. And so, proponents of GDR argue that any targets developed under a C&C framework will not be fair to poor nations and therefore will not be accepted by developing nations. We agree that several additional equitable issues  including the justice dimensions of historical emissions levels must be dealt with for a C&C approach to be fair to low-emitting poor countries because emissions targets simply based upon equal per capita emissions to allocate the extraordinarily small carbon budget that is left to avoid dangerous climate change will leave almost nothing for low emitting nations to grow economically. The questions is not whether these issues need to be considered in setting targets, but rather how they are considered while maintaining the moral force of equal per capita rights to use the atmosphere as a carbon sink.

The Brazilian government has also developed a proposed equity framework based upon the need to take historical emissions levels seriously. Both the proposed GDR framework and the proposed Brazilian framework more directly deal with legitimate justice issues which are not expressly initially dealt with under C&C.  Yet C&C can be adopted in combination with other agreements and adjustments to C&C assumptions that deal directly with the equitable issues more directly considered by the other proposed equity frameworks. For instance, the convergence dates in the C&C framework can be modified to take into consideration s0me historical emissions issues. In addition, separate agreements on such matters  as financing carbon friendly technologies in poor, low emitting nations can deal with issues of need to assist developing nations achieve otherwise just ghg emissions targets.

In summary, some of the alleged limitations of  C&C can be dealt in other agreements while retaining the basic structure of C&C.  And so, for the 10 reasons above, the C&C should be adopted by the international community not withstanding the legitimate need to consider other issues relevant to distributive justice in setting ghg emissions reduction targets including levels of historical emissions and financial ability of poor nations to comply with per capita emissions limitations. For this reason, C&C is the most preferable and practical equitable framework for allocating climate change obligations among governments.

References:

Baer, P., Athanasiou, T., Kartha, S., and Kemp-Benedict, E., (2008). The Greenhouse Development Rights Framework, Second Edition, November 2008. http://www.ecoequity.org/docs/TheGDRsFramework.pdf

Global Commons Institute, (GCI), ) 2010. http://www.gci.org.uk/

Meyer, A., (2000, Contraction and Convergence, The Global Solution to Climate Change, Ttones, UK: Green Books,

By:

Donald A. Brown

Scholar in Residence and Professor, Sustainability Ethics and Law and Professor, Widener University School of LawPart-time Professor, Nanjing University of Science Information and Technology, Nanjing, China

dabrown57@gmail.com

 

 

Ethical and Justice Issues At the Center of the Warsaw Climate Negotiations-Issue 1, Equity and National GHG Emissions Reductions Commitments in the Short-Term

equity and ambitionThis is the second in a series of papers which will examine the ethical and justice issues that are at the center of the Warsaw climate negotiations, often referred to as the 19th Conference of the Parties (COP-19). The first in the series can be found on Ethicsandclimate.org. This paper looks at the ethical issues entailed by the need for nations to dramatically increase their ghg emissions reductions commitments immediately, that is in the short-term, to levels that equity and justice would require of them.

Each year in international negotiations, pleas of vulnerable developing nations have become louder calling for developed nations to respond to climate change in ways that are consistent with their ethical obligations. For the most part, this had utterly failed to happen. Yet, up until a few years ago, nations could ignore their ethical responsibilities provided they made any commitments at all to reduce their ghg emissions. As a result, nations have failed to adopt climate change policies consistent with their equitable obligations despite the fact that all nations who are parties to the UNFCCC agreed, when they became parties, to reduce their emissions to levels required of them based upon “equity” to prevent dangerous anthropogenic interference with the climate system.

Although most nations have now made some commitments that have included ghg emissions reductions targets starting in the Copenhagen COP in 2009, almost all nations appear to be basing their national targets not on what equity would require of them but at levels determined by their economic and national interests. In fact, in many cases when governments have been asked why they have not made more ambitious commitments, they have cited national economic justifications or their unwillingness to make more stringent commitments until other nations do so, excuses which are also based upon national interest rather than national global obligations. And so, for the most part, nations have entered the international climate negotiations as if their commitments to an urgently needed climate change global solution can be based on national interest rather than global responsibilities.

However the longer nations have waited to respond adequately to climate change, the more difficult it has becomes to ignore what ethics and justice requires of them because climate science is telling the international community that it must immediately adopt a global approach to climate change which is much more ambitious than current national commitments will provide. And so despite the fact that some vulnerable nations have been screaming for climate justice for at least two decades, in the last few COPs equity and justice has moved to the center of the most contentious issues in dispute. Now there is no escaping the international community from reviewing   national commitments through a justice lens. The smaller the available budget becomes to avoid dangerous climate change, the more obvious the justice issues become.

Nations must both increase emissions reductions commitments immediately to give the world any hope of avoiding dangerous climate change while also agreeing to an international framework on future ghg emissions which will limit global ghg emissions in the medium- and long-term. And so, some aspects of the Warsaw agenda are focused both on increasing ghg emissions commitments in the short-term while at the same time working toward a new climate change treaty which will include a framework for national ghg emissions reductions after 2020. This paper looks at the equitable aspects of the need for more ambition in national ghg emissions commitments in the short-term while the next entry will look at ethics and justice issues entailed by the need for a new climate change treaty that was agreed to in prior COPs and that is scheduled to come into effect in 2020.

An adequate global climate change solution will need to limit total global ghg emissions to levels which will prevent atmospheric concentrations of ghgs from accumulating to dangerous levels and to do this any solution will also need to allocate total global emissions levels among all nations. Therefore each nation must agree to limit is emissions to its fair share of safe global emissions both in the short- and longer-term. There is now no way of escaping this urgent reality.

Up until now, nations could pretend that baby steps toward a global solution were acceptable progress. The urgency of finding a global climate change solution now makes it clear that such pretense is foolish self-deception.

Since the last COP in Qatar last year, there have been two prestigious scientific reports that have made it even more abundantly clear that much greater ambition from nations on their previous ghg emissions reduction commitments based upon equity are urgently needed. In 2013, IPCC in its recent Working Group I Report on the Physical Basis of Climate Change  and UNEP in its just released the Emissions Gap Report are advising the international community that the world is quickly running out of time to prevent dangerous climate change.

The UNEP report is particularly relevant to the short-term situation given that the international community has agreed to limit future warming to prevent catastrophic warming to  2° C or perhaps 1.5° C if later studies demonstrate that a 1.5° C warming limit is necessary to prevent catastrophic harms.

The UNEP report found that even if nations meet their current climate pledges, ghg emissions in 2020 are likely to be 8 to 12 gigatonnes of CO2 equivalent (GtCO2e) above the level that would provide a likely chance of remaining on the least-cost pathway.

To be on track to stay within the 2° C target and head off very dangerous climate change, the report says that emissions should be a maximum of 44 GtCO2e by 2020 to set the stage for further cuts needed keep warming from exceeding the 2° C target.

Since total global ghg emissions in 2010 already stood at 50.1 GtCO2e, and are increasing every year, reaching a 44 GtCO2e target by 2020 is extraordinarily daunting and much greater ambition is needed from the global community than can be seen in existing national ghg emissions reduction commitments.

UNEP pointed out in its report that the 44 GtCO2e target by 2020 is necessary to have any hope of achieving even greater cuts needed after 2020 when total emissions must be limited to sharply declining total emissions limitations. Moreover if the world continues under a business-as-usual scenario, which does not include pledges, 2020 emissions are predicted to reach 59 GtCO2e, which is 1 GtCO2e higher than was estimated in a UNEP report issued in 2012. Without doubt increasing the ambition of national ghg commitments is urgently needed to provide any reasonable hope of limiting warming to non-catastrophic levels.

The September, 2013, IPCC issued a report which contained a budget on total carbon emissions that the world needs to stay within to give a 66% chance of preventing more than the 2° C  warming that attracted world attention despite the fact that it has been widely criticized as being overly optimistic. This budget is an upper limit on total human CO2 equivalent emissions from the beginning of the industrial revolution until the day we stop burning carbon. The IPCC said that for warming to remain below last 2° C warming limit, the total amount of CO2 must be less than 1000 billion tons.

The IPCC report estimated that we’ve already used 531 billion tons of that budget as of 2011 by burning fossil fuels for energy as well as by clearing forests for farming and myriad other uses. That means would mean that there is 469 tons left in the emissions budget. This further means that the budget would be completely used up by current emissions by around 2044, just over 30 years from now.

Yet, the IPCC budget is likely significantly overly optimistic because ghg emissions other than CO2 are being emitted which the IPCC recent budget did not take into account. Factoring in the other ghgs brings the overall cumulative budget down from 1 trillion tons of carbon to 800 billion tons.

With that in mind, the remaining budget is even smaller, leaving just 269 billion tons of carbon left. This figure screams for a radical increase in short-term and long-term ghg emissions national ghg emissions commitments. For this reason, climate change is a civilization challenging problem of distributive justice.

The IPCC report also said that a possible release of ghg thawing permafrost and methane hydrates — which are “not accounted for in current models” — would shrink the remaining budget even further.

So why is equity and justice considerations so vital to increasing national ambitions? There are several reasons for this. First some countries much more than others are contributing to global atmospheric ghg concentrations on a per capita and total tons basis. Other countries more than others have contributed much more historically to existing elevated ghg atmospneric concentrations as they pursued higher levels of economic growth. And some countries more than others should be allowed to increase energy use to emerge from grinding poverty especially since they have done almost nothing to cause the existing crisis. And so, climate change is a civilization challenging problem of distributive justice and no matter what ethical considerations are taken into account to define an arguably distributively just allocation of ghg emissions targets among nations, many national commitments utterly and obviously flunk any ethical test. Yet the international press is not covering this aspect of this civilization challenging problem.

Ethics and justice demand that high-emitting nations and individuals reduce their emissions to their fair share of safe global emissions. Furthermore, it is already a settled principle in international law that polluters should pay for their pollution, that nations should reduce their emissions to prevent dangerous climate change on the basis of ‘equity,’ not national interest, and that nations should prevent their citizens from doing harm to people outside their national jurisdictional boundaries. These rules collectively mean that nations may not base their climate change national strategies on national interest because they they have duties, obligations, and responsibilities to others that they must take into account when setting national climate change policy. Yet hardly any nations are explaining their national ghg emissions reductions commitments on the basis of how they are congruent with their equitable obligations and the international media for the most part is ignoring this vital part of this civilization challenging drama unfolding in Warsaw.

 

equity and climate change

In addition, every national ghg emissions target is already implicitly a position on the nation’s appropriate fair share of safe global emissions because it is a global problem about which each nation must do its fair share. Any national ghg emissions reduction target is a statement about the nation’s commitment to solve a global problem which is putting hundreds of millions of existing people at risk and countless members of future generations.

nw book advFurthermore, practically the nations of the world are not likely to increase ghg emissions targets unless those nations who are already exceeding their global fair share agree to reduce their ghg emissions. And so national ghg emissions reductions based on ethics and justice are both required on the basis of morality and are urgently practically needed. The obvious place to look for increases in ambition in national commitments is from nations that are obviously above emissions reduction levels that equity would require of them.

As we shall see in the next paper on a longer-term framework for national emissions, there are several competing ethical frameworks for what constitutes any nations fair share of safe global emissions. However, that does not mean that any position on “equity”  passes minimum ethical scrutiny. And without any doubt, national ghg emissions targets based upon national economic interest alone flunks any ethical analysis because climate change requires nations to take into account how their ghg emissions are gravely harming the hundreds of millions of people around the world who are vulnerable to climate change in setting national climate change policies. That is under any conceivable ethical theory, nations must set ghg targets based upon their duties to not harm others, not self-interest alone. High-emitting nations are therefore obviously failing to set ghg emissions targets based upon their ethical obligations. In fact, as we have seen, nations often have admitted that their targets have been based upon self-interest not global duties.

Slide3For this reason, a key issue on the Warsaw agenda is the ethical dimensions of short-term ghg emissions targets and the need for high-emitting nations in particular to increase their commitments.

However, unfortunately at this moment, it is unlikely that countries will increase their emission reduction proposals in Warsaw. In fact, in some countries recent national policy changes call into question their capability to reach even their inadequate 2020 targets. Along this line, for instance, a recent backwards step of Australia was announced that it intends to abolish its newly established carbon pricing mechanism.

This series will report on what happened in Warsaw on short-term ghg targets and equity at the conclusion of the Warsaw conference

By:

Donald A. Brown

Scholar In Residence and Professor,

Windener University School of Law

Harrisburg, Pa.

Visting Professor, Nagoya University

Nagoya, Japan

Part-Time Professor

Nanjing University of Science Information and Technology

Nanjing, China

dabrown57@gmail.com

Introduction To The Ethics of Climate Change -Video Part One

Video

EthicsandClimate.org will be publishing videos that explain basic climate change ethical issues starting with this post.

This first video is about 14 minutes long and  introduces basic climate change ethics issues, explains why climate change must be understood as a civilization challenging ethical question, identifies some important practical consequences of framing climate issues as ethical questions, and introduces very briefly a few of the many civilization challenging ethical questions raised by climate change.

Part 2 in this series will introduce specific ethical issues entailed by climate change

By

Donald A. Brown, Scholar In Residence, Sustainability Ethics and Law, Widener University School of Law

dabrown@widener.mail.edu