Plan B is supporting the emergence of a networked, international movement of legal action to prevent catastrophic climate change.
What was Plan A?
Plan A was an international agreement to establish:
- A global ‘carbon budget’, consistent with avoiding the worst effects of climate change; and
- Principles for a fair division of that budget between countries.
Few would disagree that, in a logical world, that is how this critical situation would be managed (indeed this was the approach used to avert fatal depletion to the ozone layer).
Political obstacles (including entrenched opposition from fossil-fuel backed US Republicans) derailed Plan A.
The Paris Agreement was a diplomatic success, and brings substantial progress, but it does not deliver Plan A. In particular:
- A global carbon-budget is not mentioned, let alone quantified;
- So the Agreement provides no clear foundation even for a discussion of international budget-sharing arrangements;
- Collectively the Nationally Determined Commitments (NDCs) declared are too little too late to achieve the objective of limiting warming to 1.5 or ‘well below’ 2 degrees Celsius, leaving the world on course to a catastrophic 3-4 degrees warming.
This ’emissions gap’ (i.e. the difference between action and goal) is not just a technical issue. The difference between 1.5 and 4 degrees warming is the difference between:
- life and death on a grand scale;
- existence and non-existence of islands states and coastal populations (from Tuvalu to Bangladesh and New York);
- peace and war;
- prosperity and poverty.
WHAT IS THE PLAN TO CLOSE THIS GAP?
Time to act
Marches and protests only go so far: the issue is not lack of awareness of the problem; it is what to do about it. Recognition of the limitations of the UN inter-governmental process (and the Paris Agreement) is not an admission of defeat; it is the prompt for development of an alternative and complementary strategy. The divestment movement is already underway. It is symbolically powerful and capable of delivering substantial outcomes but, in isolation, insufficient to ensure a science-led process of decarbonisation.
The Paris Agreement is misleading in its call to decarbonise in the second half of this century. That implies the world has up to 80 years to wean itself off fossil fuels. Unfortunately UNFCCC’s own assessment of Paris commitments shows that that is delusional. Without urgent and immediate action, the carbon budget for limiting warming to 2 degrees Celsius is likely to have been exhausted by 2035. A plan is needed now.
Role of Legal Action
When a child is seriously ill the parents call the doctor. A pharmaceutical company is responsible for ensuring its vaccines are reasonably safe. A local government would not commission a road bridge across a ravine without plans from a structural engineer. If parents, company or government failed to take and act on appropriate expert advice they would be in breach of their duties of care and held morally and legally negligent. Our civilisation is founded on respect for technical and scientific expertise.
Yet when it comes to humanity’s gravest crisis, a threat to the habitability of our planet, many of those shaping international energy policy are trusting the child will get better without a doctor, even as the fever rises; they are putting vaccines on the market, knowing their adverse health affects outweigh the benefits; and they continue to build the bridge across the ravine even as they hear the cracks.
The law is society’s fundamental safety mechanism. Wherever a duty of care exists, failing to take reasonable steps to prevent harm to others is illegal negligence (whether under private or public international law). Deliberate non-enforcement of that law is to be complicit in that negligence. Contrary to what many were implying in the run up to Paris, a legally binding frame-work for the control of greenhouse gas emissions is already in existence (which Paris has helped to advance in significant ways). The time is ripe for a determined and strategic application of the law.
Rising tide of litigation
Climate change has gone unchecked for so long largely because available legal principles have been either overlooked or perceived to face insurmountable impediments in practice. Those primarily responsible for GHG emissions have been operating on the assumption of ‘plausible deniability’: ‘if everyone is responsible then no-one is responsible‘. That assumption, however, is now being challenged. Since 2015 successful legal actions have been brought in Holland, the US and Pakistan, with others commenced in Belgium and New Zealand. ExxonMobil is currently under investigation on suspicion of fraudulent misrepresentation over climate change (in a case similar to the successful prosecution of Philip Morris under RICO, for, inter alia, misleading the public regarding the risks of smoking); and 47 Carbon Majors (including ExxonMobil) face an investigation before the Philippines Human Rights Commission for violations of fundamental human rights.
Plan B is to build on these successes, and to support the emergence of a networked, international movement of legal action to prevent catastrophic climate change. It will achieve this end by securing:
- Equitable distribution of a carbon budget;
- Polluter liability for climate change loss and damage;
- Massive investment in adaptation and mitigation technologies; and
- Effective remedies and protections for the victims of climate change.
It has a number of tactical advantages, such as:
- the range and distribution of potential claimants (since everyone is affected by climate change);
- the variety of potential legal actions;
- the existence of well-established legal principles such as the precautionary principle, equity and ‘the polluter pays’; and
- the requirement for courts to reach their decisions on the basis of the best available evidence.
How will Plan B be implemented?
- Building an alliance of civil society, academia, governments, businesses and others committed to the long-term climate goal;
- Developing and sharing tools to address the technical aspects of legal action (such as causation and attribution), improving access to justice
- Identifying all potential forms of legal action and associated fora;
- Strengthening domestic and regional policy, law and regulation; and
- Adoption of a networked, strategic plan of legal action.
Range of legal actions
Potential actions include:
- An action by climate vulnerable countries before the International Court of Justice, based on breach of the duty to prevent harm (ICJ);
- A request by a relevant agency for an advisory opinion from the ICJ on the scope of the duty to take preventative action;
- An action by climate vulnerable countries for breach of the United Nations Convention on the Law of the Sea (UNCLOS) concerning pollution;
- Domestic actions by citizens or NGOs where governments are failing to take sufficient action against climate change;
- Private law actions against fossil fuel companies for tort or delict;
- Actions against fossil fuel companies for breach of statutory obligations of disclosure;
- Actions against those financing fossil fuel projects for breach of relevant obligations;
- Actions by citizens or NGOs before international or regional courts of human rights.
A single action before the ICJ might deliver what a quarter of a century of intergovernmental negotiations has failed to achieve: a globally applicable, legally binding framework for distributing equitable shares of the carbon budget.
A single civil action against a fossil fuel company for climate change loss and damage would send shock-waves through the markets, harnessing market forces to the energy transition, ensuring the requisite flow of investment into clean technologies.
The clock is ticking: now is the time for Plan B.