Climate justice – an increasingly distant goal

Thanks to the generous support of GLOBUS, I spent two weeks  at COP23 in Bonn this November.  At these international negotiations, one could be forgiven for thinking that talking is equivalent to action. There were so many meetings, with so much consensus that I’m wondering sometimes why we were even there. Thousands of delegates filled the cavernous halls of the two conference venues each day attending side events, plenaries or press conferences all timed meticulously to give everyone a decent chance to be heard. NGOs and scientific or policy experts are the most vocal participants, with government delegates conveniently dispatched to the distant ‘Bula’ zone conference centre. All of this amounted to a very green, largely optimistic, echo chamber.

From the events I attended, the opposition to ambitious mitigation is absent or silent. The fossil industry and its army of lobbyists slinked silently around the corridors of the negotiation zone, leaving the rest of us in an artificial state of agreement. The one stand-out controversial event, a side event organised by the US delegation to promote coal, was hijacked by singing US environmentalists. It’s hard to get away with promoting coal at events like the COP, where green lobbies largely outnumber everyone else. The scientific consensus has been pretty much internalised by the NGO community, and increasingly the business community. So who’s left? And where are they?

From what I can tell, after two week of negotiations, there is no significant scientific dispute about the following:

(a) fossil fuels need to be phased out immediately; there is no scope in the Global Carbon Budget for any further extraction or expansion of fossil fuel production, including gas. Some presentations I’ve been to arrive at this conclusion more explicitly than others, but there is little doubt that in the absence of an unprecedented and still speculative roll-out of Negative Emissions Technologies (NETs), there is no room in the global carbon budget for anything anything more than a total of a maximum of about 640 GtC, equivalent to about between 14 years of current emission rates from energy alone, for an “unlikely” chance of 1.5°C, and 18 years, for a “likely” chance of 2°C.

(b) the agricultural sector, and beef production in particular, is having a disastrous climate impact and contributes more than the transport sector to global GHGs; agriculture’s emissions and the associated impacts on diet and nutrition have been neglected in national policies and the UNFCCC process to date. Furthermore there is increasing evidence that while CO2 emissions have levelled off somewhat in recent years, methane emissions from biogenic sources (which include both wetland loss and agriculture) continue to increase. Worryingly, emissions from agriculture are set to rise dramatically, coupled with a shift the world over to Western-style diets. Meat consumption is expected to double globally by 2050.  Beef in particular is the most wasteful and resource-depleting source of protein, and contributes up to 6% of all global GHG emissions. Agricultural experts and even farming lobbies accept that policy change is necessary but dispute the measures (subsidies, tax reforms etc.) required to shift to a more resource efficient and sustainable system of food production.

The new focus on agricultural emissions is interesting, for while there is no mention of agriculture in the Paris Agreement, or indeed any specific sector, the effects of globalisation in trade and dietary patterns is very pronounced in this sector. It is doubtful whether the Paris Agreement itself will ever be renegotiated to accommodate specific policies. However there is no doubt that some international agreements will be necessary to contain the growth of emissions and to consider climate impacts in the context of trade-related agricultural agreements. It is noteworthy that the FAO‘s role for instance appears to be limited to assisting countries in preparing their NDCs and in reporting on forestry related climate initiatives. Sustainable agriculture is not on the international agenda.

(c) The NDCs submitted by countries to date are not consistent with the temperature goals of the Paris Agreement. To be consistent with holding the temperature increase to 2°C (never mind 1.5°C) in an equitable fashion, developed nations will need to commence rapid reductions of about 10% per annum until 2050 to allow non-OECD countries to develop up to a point where emissions can peak and then fall again towards zero by 2050. However, the Paris Agreement process requires a global stocktake or ratcheting up of ambition only in 2023, and a facilitative dialogue beginning in 2018 to review progress in meeting the goal set in the Agreement under Art. 4.1. Many developing countries are arguing for ‘pre 2020’ action from developed countries to enhance ambition and increase the level of mitigation effort. But there is unlikely to be agreement on this since, according to seasoned negotiators, the agenda is already full for the next couple of years.

So where does this leave us? What are the prospects now for achieving the Paris goal of limiting global warming to no more than 2°C? Firstly, it is important to remember that the temperature goal is a political goal, not a scientific one. Dangerous climate change is still possible under a 2° scenario. We should not assume that we can slouch towards any temperature increase with a view to sorting this problem out later on. The atmosphere is responding to cumulative amounts of greenhouse gas emissions, so both ‘flow’ and ‘stock’ emissions need to be reduced. The basic climate science involved is simple: cumulative carbon dioxide (CO2) emissions over time are the key determinant of how much global warming occurs. In other words, reducing emissions under a mitigation strategy is all very well and good, but any absolute emissions still add to the global warming problem, so it continues to get worse even as we tackle it. According to Kevin Anderson and Alice Bows in a paper published in 2011, high rates of emissions growth in China and India, plus continuing growth in emissions from OECD countries, albeit at lower rates, mean that the prospects for remaining within 2°C have now receded dramatically:

“[T]here is now little to no chance of maintaining the global mean surface
temperature at or below 2◦C… [T]he impacts associated with 2◦C have been revised upwards, sufficiently so that 2◦C now more appropriately represents the threshold between ‘dangerous’ and ‘extremely dangerous’ climate change (Anderson & Bows 2011, 20).”

More anon…




Do we have environmental rights in Ireland? – No, we don’t.

Last week I was privileged to attend some of the hearings in one of the most fascinating and important cases to come before the High Court in a long time. Friends of the Irish Environment (FIE), a group of environmental activists working to improve the implementation of environmental law, and residents of St. Margaret’s in north County Dublin had separately initiated an action against Fingal County Council and the State over its decision to grant the Dublin Airport Authority (DAA) an extension of a previously granted planning permission to build a third runway at Dublin Airport.

For  environmentalists, this case is a line in the sand in climate policy: building a piece of infrastructure which will lead to an increase in greenhouse gas emissions is simply not consistent with Ireland’s obligations under the Paris Agreement (2015) or the Climate Action and Low Carbon Development Act of 2015, Ireland’s only dedicated piece of legislation on climate policy.  When all of the evidence is pointing to the particularly serious nature of aviation emissions on the global atmosphere, surely we should be reducing emissions – or at least stabilising them – from this sector. How can the State and its agencies get away with saying one thing, and doing another, we argued? In contrast allowing unfettered growth of any type of emissions means that Ireland is unlikely to meet the transition objective set out in the Climate Act of 2015.

There are many technical legal issues involved in this case, involving the interpretation of a controversial section 42 of the 2010 Planning and Development Act, and the obligations of the State in implementing the EU Birds and Habitats Directives but I won’t go into those aspects of the case here (see What really turned heads was the response of the State, which was adjoined to the action, to the argument made by John Kenny BL on behalf of FIE that increased emissions associated with an extra runway would constitute a breach of an unenumerated right of Irish citizens to an environment.

Now I’m not a legal theorist or an expert in following legal proceedings, but this move on the part of FIE’s lawyers did strike me initially as rather peculiar.  Firstly we don’t have any environmental rights enshrined in our constitution, so any reference to a right would have to rely on interpreting other elements of the constitution and associated case law, which is always a tall order. From what I could glean from the legal argument by the State, Irish citizens have rights to bodily integrity, privacy and various other procedural rights. But no, we are not endowed with explicit rights to an environment. Secondly, shouldn’t it be enough to establish that the increased emissions associated with the runway would be environmentally damaging, and inconsistent with Ireland’s legal obligations: why should we need rights to argue that a proposed development is in contravention with the existing law?

FIE’s  argument was that increased emissions would lead to an increased pace of climate change and associated impacts.  Based on the scientific consensus reports of the IPCC (2014), there is no doubt that increased emissions will lead to greater health risks to human beings, as well as losses and damages associated with climate change. While the issue of attribution is an ongoing project for climate scientists (linking particular weather events such as storms with climate change), there is increasing evidence mounting that recent extreme climatic events are consistent with climate models. In other words, models produce a statistical likelihood of extreme events based on emissions scenarios. If the events, including localised extreme events, are consistent with the model predictions, then it follows that the models themselves are robust and can be utilised reliably in policy development to justify mitigation policies (see Huggel et al, 2015, and Otto, 2015). Indeed, if attribution studies can successfully link individual extreme events with climate change, it increases the chances of legal actions based on loss and damage succeeding. Bodies such as the Irish State, or local authorities or airport authorities can no longer claim ‘excusable ignorance’ by saying that they did not know the effects of certain policies or decisions. Eventually, countries and decision-making bodies will be held legally to account for bad decisions which led to additional greenhouse gas emissions and climate damages.

However, this approach is necessarily backward looking:  it asks, what caused the event, and who’s liable for the damage? Clearly, it’s not possible to use this kind of attribution argument before the runway is actually built. Contrary to the claims by Senior Counsel Ciarán Toland for the State, it is not actually possible to specify in advance how much damage might be caused by the release of an extra tonne of greenhouse gases into the atmosphere. Climate science is not a straightforward deterministic mechanism of ‘A causes B’: it must take account of many interacting variables and feedback processes in a gigantic complex system. The kind of certainty in a statistical measurement of risk associated with jumping off a 10 storey building is not available to us in determining the risks posed by an additional tonne of CO2. We rely on highly sophisticated models that process vast amounts of data on historical climate patterns and emissions to help build robust scenarios of the effects into the future of current policies.

However that doesn’t mean that the relationship between emissions and climate change is merely ‘correlation’ rather than causation.  Nor does it mean that the degrees of certainty and consensus in climate science are not highly robust. What it does mean is that decision-making bodies need to have particular regard to the potential impacts of local emissions on the global atmosphere without having precise information about which damages in particular we are seeking to avoid. It also means that these impacts cannot be minimised or wished away just because they are inconvenient obstacles to economic development.

To successfully argue that the runway ought not to be built requires a different argumentative strategy based on the idea that the risk of increased emissions is likely to be harmful, and interferes with an established right to bodily integrity. According to Professor Alice Larkin, who testified at the Heathrow inquiry in 2016, aviation emissions contribute uniquely to climate change, by virtue of the altitude at which planes fly, and the sensitivity of the atmosphere to chemical input.

“Estimates of the historical warming caused by the aviation industry to date (using radiative forcing) suggest that the total warming impact of aviation has been around twice that than would be caused by the CO2 alone. While there are uncertainties in this value (a two-­‐fold increase), there is consensus that additional warming to that from the CO2 alone has been produced by these other emissions.”

On the basis of Professor Larkin’s evidence, and the IPCC studies, FIE then went on to argue

‘there is and should be recognised by this honourable Court as a constitutional right to an environment which is consistent with the bodily integrity, right to life, water, food, and dignity of the Applicants’ members and the citizens at large’.

In other words, this runway development puts the bodily integrity of the Applicants (FIE) and citizens at risk. Acknowledging that this would represent a ‘jurisprudential leap’ and a novel interpretation of the constitution, FIE argued that key Supreme Court decisions in the McGee and Ryan cases relied upon an interpretation of existing texts to set out new rights under the constitution to bodily integrity and privacy. He pointed to a scientific consensus that climate change was a serious threat to human well-being. Given an emerging jurisprudential, philosophical and theological consensus citing the example of Pope Francis’ Papal Encyclical Laudate Si‘, that climate change represented a serious threat to human well-being, shouldn’t the courts act to protect the right to bodily integrity of Irish citizens? Ireland is one of the few countries in the world, alongside countries such as Zimbabwe and North Korea, that does not recognise a constitutional right to an environment.

At this point you might be thinking, as I did, that the language here is a bit odd. For instance, what does it mean to assert a ‘right to an environment’? Isn’t it self-evident that everyone already enjoys some sort of environment, of however poor quality? Shouldn’t we be seeking a clear statement as to the content and purpose of an environmental right, such as a right to clean air or a safe atmosphere? While this more clear statement of a right makes intuitive sense to a lay-person I think the reason the language is deliberately vague is to give the courts room to interpret the constitution as it is. After all, if it’s an unenumerated right, the content of the right is not spelt out, and any environmental rights will be inferred from and balanced against other rights and from case law. So I’m assuming then, that the best legal strategy for FIE was to make the case that there are rights that are not explicitly set out in constitutional law, and leave it to the courts to determine how they should be defined and when they may be applied.

One would have thought that making the case for a right to an environment in this rather unpromising legal context was a rather modest claim. Surely the state must agree. Not so. Mr. Toland spent the best part of an afternoon obliterating any claim to a constitutional right to an environment or the right of concerned citizens to take proceedings on this basis. This is how he responded to FIE’s argument:

“The third constitutional claim is that of Friends of the Irish Environment. That an unenumerated right to the environment is a personal right, enjoyed by its or its members, under the Constitution and that the Extension Decision infringes that right by reason of the possible omissions [sic]. I say, firstly, that the Applicants’ rights or claimed right is not specific. It doesn’t lead to a remedy and so is not capable of adjudication; secondly, no evidence has been adduced save in the most general terms; third, the case law is clear that a very high threshold must be reached before judicial discernment of further unenumerated rights; fourth, Friends of the Irish Environment have advanced no recognised method of constitutional interpretation suitable to discern this
particular right; and fifth, policy, with respect to the environment, properly falls to the legislature. In respect of the standing of the Friends of the Irish Environment, which was discussed with my Friend, we rely on our written submissions.”

Those of in attendance were surprised by the lengths the State went to take issue with FIE’s claim. It stands to reason that if a right to bodily integrity means anything, even balanced against other rights, that it can be defended and remedied by environmental laws and decisions which keep emissions down in a manner consistent with the Paris Agreement and the Climate Action and Low Carbon Development Act of 2015.  It is the very global nature of the atmospheric commons, and the ubiquitous nature of greenhouse gas emissions, that requires a new way of thinking beyond existing statutory environmental protection – and that was exactly what FIE was asking the court to provide. The State can and could of course acknowledge that the decision to build the runway contravenes the basic natural rights of human persons. Because governments are often the greatest threat to individual rights, the evocation of rights is often used as a means to check the power of the State. Those who wield political power are obliged to do so in a manner which respects people’s natural rights (Jones, 1994). Therefore the right in this instance is being invoked to protect citizens from the state’s actions. And these are not just procedural rights (to information or to public participation): even the Aarhus Convention recognises that those procedural rights are subordinate to the substantive right

‘of every person to live in an environment adequate to his or her health and well-being’ (Art.1).

Counsel for the State concluded by arguing that there is no place for an environmental right in this case because:

‘policy, with respect to the environment, properly falls to the legislature’.

This is quite a bizarre statement since the right that FIE is arguing for is not just a question of policy, but a question of the right to bodily integrity. A right to an environment is not reducible to the realm of socio-economic rights that the courts are so reluctant to recognise. It is an entirely new way of thinking about the duties of the State and its agencies towards its citizens. Rights imply reciprocal obligations.  The obligation here falls on the State to recognise a right that is established both on the basis of natural law, human rights as well as a need – a need for protection from harm, and for this to take effect, it must be judiciable i.e. the state must be subject to some degree of enforcement in order for that right to be realised or defended.

Finally, FIE defended the right of an organisation to take action on the grounds of public interest to defend a natural right to an environment. This might seem like a fairly minor point, but the State also argued that public interest groups such as FIE have no legal standing, and that organisations such as ours are not entitled to take actions on the basis that they represent the views of citizens who might be at risk of climate change. The whole idea behind actions such as this one is that individuals are often not organised or coordinated enough to represent their interests before the courts, and as individuals we do not get any benefit from acting alone –  a classic collective action problem. This is also one of the key reasons for gradual decline in environmental quality (why should I care when no-one else is doing anything?), and for the important role played by citizens’ and environmental organisations in improving and enforcing environmental law. And when you think about it, the interests of future generations and non-human species are even more under-represented. In this context the State’s coordinating role is essential. It is also vital that groups of like-minded concerned citizens are given access to decision-making including the courts to advance views that are in everyone’s interest, but rarely articulated in the public sphere.

Bizarrely, the State took the view that this constitutional principle of access to justice applied only to those with ‘material’ interests in a case – so the St. Margaret’s residents are entitled to claim interference with their (constitutional) rights, but not any other class of applicant. It’s worth thinking about what that means. That my status as a property owner gives me – according to the State (we’ve yet to hear what the courts decide) – more legal standing than my status as a citizen or resident. That my interests in respect of the right to make submissions are only material ones, not any other type, such as my right to bodily integrity or a clean environment or a safe atmosphere. It also pits the commercial interests of powerful commercial entities such as the DAA or Ryanair against the interests of citizens. Again just think about the implications in a situation where individual losses and harms may be small but where aggregate losses may be devastating and irreversible, such as is the case with climate change.

Finally, I want to conclude by considering briefly the benefits of introducing environmental rights into the Irish constitution. In 2014 the Constitutional Convention published its final report, recommending further consideration of including environmental rights into the constitution (which would require a referendum) on the basis of submissions they had received. Needless to say, neither of the two subsequent governments have taken up this issue and progress on legal and political reform has generally stalled in any case. But what the report recommended was very interesting from the perspective of this case:


(52% of Convention members felt that it merited further consideration)
The word ‘environment’ is not mentioned in the Constitution (although Article 10 states that natural resources belong to the State). Indeed, as one submission pointed out, the drafters of 1937 could hardly have foreseen the severity of the threats to Ireland’s environment today. Many submissions were received recommending on or more of the following options:
– Declaring environmental protection or stewardship as a fundamental constitutional principle. At an aspirational level, care-taking Ireland’s environment for future generations is a spiritual and moral duty.
– Declaring that all citizens have fundamental rights to a clean / safe / ecologically sound environment. (These rights could be enforced by the courts.) (emphasis added).
– Enumerating procedural rights: All citizens should have rights to participate in
environmental and planning decisions, and rights to information on the
– Declaring that the State has a duty to maintain / improve the environment. (This
duty could be enforced by the courts.)
– Declaring that all laws must pay due regard to the conservation of our natural
heritage and built environment.
– Declaring that wildlife / biodiversity / ecosystems are entitled to respect and
– Recognising that landscape belongs to all and should be enjoyed by all, by way of
more “open access” to the countryside and public rights of way.

So from the above, it’s clear that environmental rights could operate in a number of different ways, specifying a range of different moral and legal obligations. A number of studies have been carried out into the effect of introducing environmental rights into constitutions, and it has been shown that, despite the variety in language and legal systems, the effects on policy have been largely beneficial. An environmental right is – and to work, must be – principally a legal remedy (or remedies) which applies when either a person suffers harm which originates in the environment or the environment, including non‐human species, is harmed. That doesn’t sound terribly radical. But introducing the ideas of stewardship, responsibility, and environmental quality and a concern for human well-being and future generations have had a dramatic effect on  environmental legislation and litigation outcomes in most of the countries that have introduced them (see Jeffers and Gellers, 2017). All of this leads me to think that there is a powerful instrumental case for enshrining environmental rights into the constitution if it will lead to better legislation and better enforceability.

Finally, though, we need to consider which environmental rights are most suitable and most needed in the context of existing constitutional law in Ireland. This is beyond the scope of this blog post. Personally I’d like to see all of the suggestions in the Constitutional Convention report included, but that might be unwieldy. There are two major strands perhaps – one: a provision to require the state to promote sustainable development and responsible stewardship of the environment in all of its functions and two: the right of all of Irish citizens and residents to enjoy a high standard of environmental quality.

We will see what Judge Barrett makes of our arguments. But either way, this discussion is only beginning and now we know what we are up against in terms of the State’s position.  If we don’t succeed this time, we will most certainly be back!






Emissions trading – the case for an ethical framework


Greenhouse gas emissions and anthropogenic climate change are directly linked to the combustion of fossil fuels for energy, deforestation, and certain agricultural practices. Reducing emissions will thus require major economic changes in production and consumption systems, and in the governance systems which guide individual and corporate behaviour. Yet the economic profiles of nation states vary widely, and current emissions are strongly correlated with wealth, historical circumstances, climate, access to energy resources and population size. These national circumstances, on top of the profound wealth disparity between developed and developing countries, will continue to present obstacles to the negotiation of a fair allocation of a global emissions cap stringent enough to combat climate change. Added to this is the feature of climate problem having all the attributes of a ‘Tragedy of the Commons’ where it is rational for each nation to pollute the global commons to the maximum and free-ride on the mitigation efforts of others (Gardiner 2002; Wagner and Weitzman 2016).

This background partly explains why political disagreement represents a key feasibility constraint that cannot be overlooked in designing climate policies. The climate policy debate (in contrast to the discourse in law and international relations about climate politics) is concerned with designing policy instruments which as a priority, put a price on pollution commensurate with the damage that it causes, or will cause later.  Since the failure to agree on a global carbon tax through the UNFCCC regime and the withdrawal of the US from the Kyoto Protocol[1] (Convery 2009), the policy debate has increasingly shifted towards carbon trading systems which allow for ‘decentralised action’ (Grubb 1990, 81) partly because it was the one pricing instrument that negotiating parties were prepared to agree on.

Emissions trading works by setting a cap on the emissions allowable by certain sectors, and requiring installations to purchase permits to cover emissions over a given time period. The key innovation is the establishment of property rights (or leasing rights) for tradable carbon permits, and then leaving it to market forces to determine the price.  Ideally, by establishing a market to bring an optimum utilisation of such rights, ‘least-cost’ abatement will take place through technological innovation (Calel 2013b). According to advocates of emissions trading, the creation of property rights is a more economically efficient way of pricing carbon than taxation, though both instruments can actually work well together. In theory, by requiring polluters to purchase permits, the market can deliver mitigation more efficiently than taxation by targeting ‘low hanging fruit’ or incentivising technological innovation away from carbon-intensive economic activities (Calel 2013b; Convery 2009; Ellerman et al. 2010).

In principle, any product that has a carbon footprint could be required to purchase emissions credits, and in principle, anyone could get involved in buying and selling emissions credits, and even generating them through mitigation projects.  In fact, the quickest way to decarbonise the EU energy sector would be for every citizen in Europe to purchase, and then put the permits under the mattress for a decade.[2]

In most countries with carbon trading schemes however, markets are designed to cover major emitters first. The key benefit of requiring the market (as is the case in the EU) to major industrial producers of greenhouse gases and the power generation sector is that an effective carbon price should ripple throughout the economy as higher energy costs are reflected in consumer prices. And again, according to the theory, a strong price incentive will have the effect of discouraging emissions and incentivising the transition to low or zero carbon forms of economic activity and energy production.

Given the task that confronts us – that of reducing greenhouse gases by 40% across the EU by 2030 – it might be a good starting point not to rule out any instrument that might be effective at reducing emissions without massive economic disruption. Indeed, effectiveness might arguably be the only relevant criterion here, given the urgency of mitigation. However, is worth considering how we might evaluate the broader ethical implications carbon trading. Markets also have the effect of establishing moral norms: they act as moral templates because they establish and reproduce patterns and regularities that guide interactions and transactions in the marketplace and daily life. The absence of a ‘solidaristic community’ or world government at the global level does not preclude global or transnational institutions from exercising power over any community or country, which in turn begs the question of their political legitimacy if they do not make justice a primary goal (Pogge 2008, 120). The legal power of international financial institutions to confer ownership rights over resources, or to provide or withhold credit, empowers them to engage in resource distribution, however indirectly.  Therefore, such institutions – and indeed markets that are regulated by them – have duties of justice that may be even more pronounced than those of national level institutions, partly because their activities may lack legitimacy and transparency to those people who are affected by their operations.

From an equity point of view, it is the nature of these new property rights that matters: the initial allocation determines who gets the permits, and who will then benefit from trading. If permits are they grandfathered, they are effectively given away to polluters for free. In practice, grandfathering may soften up opposition to the imposition of a cap but at an opportunity cost to society as a whole in rewarding incumbent polluters. Nor does grandfathering resolve the question of historical emissions. Recall the case of Tata Steel in the UK, which though facing bankruptcy in 2016 had claimed more than £700m in windfall profits, offsets and free allowances from the ETS over a 6 year period.[3]  In this case, a greener method of steel production may be incentivised by the cost of purchasing credits, but at the cost of some job losses. Critics of Tata pointed out that when the carbon trading model of mitigation was being extended to steel production, employers were effectively shielded from its logic via the free allocations when workers were not. This does not constitute a ‘just transition’ to a low-carbon energy future. Yet the income from carbon credits could conceivably be ringfenced to ensure that communities such as those in Port Talbot benefit from a transition to cleaner production. From the perspective of fairness as well as competitiveness, only auctioning is justifiable, especially when there is no convincing empirical case for shielding industries from carbon leakage (Timiliotis and Koźluk 2016). Revenues can and should be used for subsidising innovation in a socially just manner.

A second questions concerns whether permits are leased or permanently owned. If the property rights gained by polluters (on behalf of the whole of society in effect) interfere over time with the public interest, it should be possible for regulators to withdraw, cancel or reserve permits from the market.  The EU’s latest reforms to the EU-ETS do make provision for a Market Stability Reserve, but this will not come into effect until 2021, and it is offered as a bulwark against price shocks rather than ensuring a high enough carbon price. Ethically speaking, market-based instruments can only be justified if the flexibility assured by trading sets a price that reflects the full social cost of carbon. A recent – albeit conservative – estimate by the economist Bill Nordhaus puts this at $31 per tonne of carbon at 2015 US prices (Nordhaus 2017), compared with the current average EUA price in the EU ETS of €5.  A hybrid approach combining taxation (to ensure a high enough minimum price floor) and trading (to ensure flexibility) might ensure both price stability and the correct incentives.

Prices, moreover, whether set by a government, a company, or an individual, involve an exercise of power; power that one party can use (and abuse) to influence the behaviour of another (Calel 2013a, 281). Furthermore the effects of commodification – of turning carbon into a tradable commodity – may be irreversible, and by reducing a social relationship to an exchange of commodities, may be ‘infectious’ (Calel 2013a, 279-280). Therefore initial allocations have enormous ethical implications because they distribute and redistribute public goods by solving for externalities (Stiglitz 2000, 215-241), because of their distributional implications (Calel 2013b, 113) and their potential to establish incentives that ‘crowd out’ other social norms (Sandel 2012).

A related question is the status of emissions permits themselves.  To the extent that permits can be exchanged for traditional financial products and currency, they acquire all of the status and power that money has. But this outcome is not inevitable: since this market is a human invention we can design it in theory to have the features we desire. Permits could be designed to expire after a certain period, or exchangeable under much more limited conditions. A crucial issue is the coverage of the market. If carbon trading is limited to large installations and power generation which operate under reasonably competitive conditions and have comparable regulatory structures across the EU, the commodification argument loses much of its force since both the emissions and the mitigation will be roughly equivalent.

To the extent that carbon markets cover sectors in which individual consumers and firms make transactions, it will be possible to absolve a moral obligation to reduce emissions with the swipe of a credit card. Offsetting allows pollution to continue as long as polluters are willing to pay for the effort of mitigation somewhere else. Even if trading is effective overall at reducing emissions, we might still reasonably contend that polluters have not discharged their moral obligations, and that such a scheme does not satisfy principles of justice across space and over time. There is a strong normative case for limiting the scale and scope of carbon markets so that the effects of transactions are transparent, tangible and accountable to an identifiable political community. This implies imposing strict limits on the use of international offset credits via the Clean Development Mechanism (CDM) under the Kyoto Protocol or any other similar instrument (Lohmann 2009).

What happens when carbon markets are linked, and when they are expanded to include offsetting credits such as those of the CDM and other flexibility instruments is that transparency and thus accountability is sometimes lost. Treating all emissions and emissions reductions as equivalent is also both scientifically and ethically problematic (Spash 2010).  It makes no sense for example to make emissions from aviation, which is the domain of the global rich, equivalent to the mitigation efforts of subsistence farmers battling drought, disease and poverty (Aldred 2016; Shue 1993).

The realist might argue that these problems simply cannot be solved with any brand of idealism, or by appealing to abstract conceptions of rights or justice. However, the alternative is to exclude ethical considerations entirely. As Shue notes, failure to even ask the question ‘who’s in? who’s out?’ over time and space sets up a default method of setting up the policy questions that is full of arbitrary exclusions but which neglects to consider the fact that harms to future people cannot be compensated for (Shue 2006, 711).

The atmospheric ‘sink’ is a finite resource that we share with future people, whose interests and basic needs, we can assume, will be the same as ours. While it is tempting from a political perspective to set a target for reducing emissions based on what is feasible or affordable now in individual countries, to do so would likely be ineffective, since it is cumulative global emissions that increase the risk of dangerous climate change (Anderson and Bows 2008, 2011). Targets based on an permissible temperature increase also fail to communicate the inconvenient truth that since emissions are still rising[4], the global carbon budget is likely to be exhausted even sooner.

If the international community is serious about backing up any limit to global warming with credible but fair policies, then scenarios will have to be developed that explicitly construct pathways for developing countries to grow, peak and then reduce their emissions alongside radical cuts in emissions by Annex I countries (Rockström et al. 2017). If global emissions are assumed to peak and then reduce from about 35 GtCO2/yr in 2020, this implies that anthropogenic carbon emissions need to be roughly halving every decade from then onwards (Rockström et al. 2017). These are staggering emissions reductions, that do not even take into account the fact that the remaining budget needs to be shared equitably with developing countries and future generations.

Of course, a global tax on emissions could achieve the goal of setting a price on carbon that reflects the true social costs of climate harms now and into the future, but there is no institution in place to collect and redistribute tax revenues at a global level. Large wealth transfers from the global North to South are also likely to be resisted by many wealthier nations. It will be left therefore to states that are committed to mitigation policies to negotiate economic instruments and policies which devalue commercial propositions based on fossil energy. One remaining option is to work gradually towards a global price on carbon (Helm 2013; Stern 2007; Stern 2011) by forming ‘carbon clubs’ and setting border taxes on imports to account for the consumption of carbon-intensive products at home that are manufactured abroad (Nordhaus 2015).

It is possible of course that this analysis is overly pessimistic, and that there is still potential for international climate agreements to shape a radical mitigation policy in time to achieve the Paris Agreement goals and without the world’s second largest emitter, the US. Yet even if this takes place, for any future agreement to be scientifically relevant to the task of meeting a 2 degree target, it must devise a mechanism to abide and enforce a global cap, and distribute the remaining budget fairly. This implies an effort to shape the likely policy instruments, especially carbon trading, so that they achieve the goals of fairness and efficiency together.

[1] Strictly speaking the US never ratified the Kyoto Protocol: Canada did but then withdrew later.

[2] This would have the effect of dramatically reducing the allowances available to installations that are required to have them to cover their emissions, and it would raise the cost of purchasing remaining allowances (Kollmuss and Lazarus 2010). It would socialise some of the transition costs (because citizens would not get a return on their investment) but leave consumers and citizens somewhat in control of the timing of structural change. Fanciful though this might appear, there is a tendency among climate activists to underestimate the potential of carbon markets for delivering environmental justice. The complexities of setting up such a regime are also somewhat offset by the power, speed and reach of digital technologies.


[4] the only year since the base year of 1990 to report a global emissions reduction is 2008, when economies around the world ground to a halt in the grip of a global recession.  That decrease only amounted to 1% and only for one year. Overall, since 1990 global emissions have risen by 57% and show no signs of abating yet.



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Why ethics? Part II

In a previous post, I offered a justification for the inclusion of ethics in any discussion of climate policy and politics. In this post, I attempt to tease out in greater detail why we as individuals, as well as collectives, have climate-related duties. The first thing to recognise is that I doubt any philosopher would claim that ethics always trumps politics or economics or any other framing of an issue. Climate change is an exceptionally complex problem which will require the efforts and engagement of many disciplines, perspectives and voices in an ongoing discursive exchange for all of the foreseeable future.

The important contribution philosophy makes is to clarify our conceptual frameworks, challenge assumptions  and perhaps expose epistemological biases. In addition philosophy can offer a variety of theoretical perspectives on the problem from which we can select the most relevant, useful ideas or, if you prefer, those that offer the greatest emancipatory potential. Ours is rich tradition (albeit dominated by men but see this), fiercely and radically democratic in that it accepts reasonable (and often unreasonable) disagreement as one of the greatest sources of collective creativity and endeavour.

In the case of ethics, moral philosophy draws our attention to the underlying principles that we use to defend our actions and choices. It’s this last contribution that I’m particularly interested in, and in the context of climate policy, ethics speaks particularly to aspects of public policy that are generally addressed by public good or welfare economics. For all the dismissal of ethics, it’s moral concepts that we look to when we want to explain why one solution is better than another. And even if efficiency and effectiveness are the metrics of choice, these are arguably ethical principles too, in that they express a value or an ordered ranking of choice. Decisions are made every day on the grounds that they are ‘good’ whether in terms of serving the national interest, promoting welfare or alleviating injustice. Don’t tell me such decisions aren’t morally relevant!

Here’s a famous argument for a public, global ethic from Peter Singer’s classic article, Famine Affluence and Morality (Philosophy & Public Affairs Vol. 1, No. 3 (Spring, 1972), pp. 229-243). In it he argues persuasively that if it is within our power to bring about a good without sacrificing too much of our own welfare, then we have a duty to do so, as he puts it:

[I]f it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it…. [This principle] requires us only to prevent what is bad, and not to promote what is good.

Singer argues that donating money towards famine relief is a clear moral duty in the case of the Bengal famine, which at the time threatened the lives of 9 million people. He contends that this principle takes no account of proximity or distance, and that it makes no moral difference whether the person is close by or far away, or whether I am the only person who can act to save someone, or one of millions. The argument he makes is straightforward enough, if hugely demanding, until one starts to put specific commitments into the story. Accepting that I have this duty to prevent harm, how much am I morally obliged to contribute to avoid the suffering of another (possibly distant) person? How much of a sacrifice should this be for me to meet my obligation? Assuming I have knowledge about the marginal cost of relief, but no knowledge of what others are prepared to do, immediately I am cast into a Prisoner’s Dilemma, where my duty clashes with my self-interest. Acting on these duties others can free-ride on my efforts and in effect, I am, in Bill Nordhaus’ words, ‘a chump’.

For Singer, one implication of this demanding moral obligation (above) is that the traditional distinction between duty and charity in the case of affluent individuals at least, is ‘upset’. That is certainly true. But the real issue at stake is the question of definition and measurement of ‘comparable moral importance’ and the problem of setting a minimum moral standard: how much (money, sacrifice, mitigation) is required for me to actually meet my obligation? And does it matter how, in practice, I go about fulfilling it? These are all hugely complex issues which have exercised moral philosophers for decades. My point in mentioning them here is that the description of the problem by Singer is as relevant to climate change as it is to global poverty. If we accept that we have duties to prevent harm, we have to figure out how much of a contribution is required to avoid harm; what kind of actions we ought to take to reduce our consumption. And if this kind of moralising puts you off, there is another aspect to individual action highlighted by Michael Sandel that we need to take these actions (without offsetting or leaving it to markets) in the context of pulling together in the context of civic responsibility.

I do not think the moral demand to avoid harm can be effectively exhausted by individual action. It doesn’t even make sense because the impact of our efforts would likely be negligible and the whole point of acting is to create the conditions in which harm can be avoided and restitution made. In further posts I will look at political or public morality that kicks in where collective action is required to overcome a tragedy of the commons. But the point remains, where we can act to avoid harm, we ought to act. It is feasible for most adults in the country I live in to reduce their personal emissions. We can of course wait until some central authority makes us, or for prices to rise high enough. And all of that is of course necessary. But morally speaking, we do have duties to act regardless. Uncomfortable, inconvenient truth maybe, but if we acted on it, it might actually make a difference.

Why ethics? Part I

‘There exists a solidarity among men as human beings that makes each co-responsible for every wrong and every injustice in the world, especially for crimes committed in his presence or with his knowledge. If I fail to do whatever I can to prevent them, I too am guilty.’

Karl Jaspers 

I got into a discussion recently with a friend and colleague about the appropriate place (if any) of ethics in discussing climate change. From an ecological and probably neo-Marxist perspective, he argued that humans are driven to exhaust all available resources to their ‘peak’. Only  when this point has been reached will mitigation take place, but any effective response will be determined by natural limits to growth, peak production of fossil fuels (beyond which extraction no longer remains viable), and at bottom, raw self-interest. I’m sure this point of view has many followers who despair at the current state of the global environment and the relentless violence we are inflicting on non-human nature – check out the extinction symbol handle on Twitter for example.  It is almost comforting to think that there is no point making normative demands for political change since the system is basically out of control: the best we can do is plan for an uncomfortable transition after collapse.

It has taken me a while to get to grips with this, because the argument eludes so many issues. In this piece I’m not going to address the empirical point about human civilisation being out of control. I’m interested in the way the argument assumes away many equally inconvenient truths about human nature, including the discovery that altruistic or moral behaviour is consistent with theories of human evolution (see the work of Daniel C. Batson for example), and that moral reasoning is just as much a feature of our psychological make-up as our capacity to make rational (or irrational) choices.   As Aristotle famously noted, ‘man [sic] is a political animal’: since we exist as social creatures, morality is embedded much like a deep grammar into our behaviour, institutions and communication structures. So I do not accept the premise that morality is irrelevant, especially when we take a closer look at what’s actually going on with climate change or any other environmental problem.

So if we accept the idea that ethical reasoning is valid – whether psychologically or philosophically, what does it for? What purpose does it serve in debates about climate change? Well to begin with, anthropogenic climate change causes harm. In the tradition of ethics, harm has three main features: agency, foreknowledge and damage. If you think about it, that is a very demanding set of criteria. If I have the knowledge and capacity to act to avoid harm, then I ought to do so. Similarly it might be said that I have moral obligations those who might be harmed by my actions, including a duty of restitution or compensation if I cannot undo my actions.

If this sounds all too abstract, let’s just consider a concrete example, like walking around with a loaded shotgun in a way that puts others at risk. Risk is a statistical way of talking about harm. I’m harming others by putting them at risk. Often we don’t think about these issues in as if they constitute moral problems precisely because governments regulate such externalities on our behalf.  Bill Nordhaus, in a 2014 review of John Broome’s classic 2012 book on climate ethics (Journal of Economic Literature52.4 Dec 2014: 1135-1141.), asks the pertinent question of whether, once the state has intervened to regulate an externality (or risk), it ceases to be a moral problem. Instead of having a (bilateral) duty to avoid harming others, I now have a duty to obey the law.

But what if the state itself is negligent, and putting the interests of the privileged few above those of  the poor, or distant, or future people?  How is ethics even relevant, when regulatory capture and globalisation make it impossible for the weak and less powerful to bring about policies which would tackle the urgent problem of greenhouse gas emissions? Well one answer is to say that the duties we have to other humans (and arguably non-humans too) are irrespective of place and time, and that at least one of the functions of a state is to discharge those duties on our behalf. A cosmopolitan perspective is that the mere existence of national borders does not eradicate our basic duty to avoid harming other humans given that we share the same fundamental rights and interests. Another answer again comes from the field of political science and sociology:  if the state won’t do it, change the rules and the rulers;  build institutions and social movements; organise advocacy coalitions for policy change.

However, as Broome points out, even when the state is doing its bit for climate justice, individuals can still be reasonably tasked with avoiding climate harms, even if the messier problem of determining and providing public goods is left to the state. Either way, whether we approach the problem of climate change from the perspective of avoiding harm or doing good, these are fundamentally normative concepts which are not reducible to self-interest or the strategic exercise of political power. Furthermore, even if one believes that individual action is futile in the larger scheme of things, the state still needs a way of choosing between policies. And this calls values back into question. How much harm are we willing to pay for now to avoid damages in the future? What is a reasonable and fair way to distribute the remaining global carbon budget? If you’re having these kinds of conversations, you’re doing ethics.


Quantitative Evidence for Loss and Damage

This event had an interesting array of speakers with legal, modelling and country-level experience of loss and damage from climate change. Firstly the legal expert spoke about how loss and damage has been considered throughout the UNFCCC process, leading up to a specific set of paragraphs in the Paris Agreement 1/CP.21 paras 48-52. However there is no dedicated finance for loss and damage, and no basis for liability inserted as a general clause (art. 8) at the insistence of the US. However she did explain that general international law could still provide an opportunity for litigation on the basis of the no-harm rule, if obligation and causation can be proven. Impediments include the difficulty of finding a forum in which to take such a claim and finding a way to attribute specific losses to human induced climate change and the emissions of a particular state. This has not prevented some claims being taken however, including claims by parties against their own governments (e.g. Philippines, Urgenda in the Netherlands). Finally, she mentioned that the International Bar Association has designed a model statute for loss and damage, and has recommended a relaxation of the strict causality rule, to allow for sufficient/ adequate or partial causality in climate litigation. She pointed out that just because establishing legal responsibility is difficult, doesn’t mean that states do not have moral responsibilities.

The scientific expert addressed the question of how to scientifically ascertain historical responsibility. What is the measure to be used – by gas, or by country? There are many choices in the calculations (start/ end dates, indicators, components, CO2 or Kyoto GH gases, production or consumption emissions). He insisted that there is not one set of definitive answers: depending on how responsibility is calculated there is a spectrum of results possible, and it is not possible to definitively make a direct link between contributions and responsibility.

Dr Fredi Otto also pointed out that an increase in global mean temperature doesn’t by itself kill anyone. In addition, while climate change makes weather patterns change, it’s the contribution of extreme weather events that do the most damage. Much scientific research has been done on trying to model the likelihood of extreme events (e.g. Argentinian heatwave 2014) being directly caused by climate change. However even where attribution can be scientifically established, it’s still a probabilistic assessment and there is a difficulty even defining what an ‘extreme event’ is. She did say that such assessments would be useful for recognising harm and making a case of climate justice. The methodology can also be used in a forward-looking manner to ascertain the risk of extreme events and where those risks might be.

Finally the representative from Bangladesh spoke of the measures taken by the Bangladeshi government to set up a fund for loss and damage. While the government claims it can successfully evacuate 2 million people in the event of a cyclone it cannot do anything to protect livestock and property. It has established a trust fund and set aside $100m p.a., 2/3 of which is spent on adaptation projects, and the final 1/3 is in a trust for ‘emergencies’. Interestingly he said that it was not clear yet what would trigger the use of the emergency fund, and while disasters could be planned for in terms of immediate responses, loss and damage over the longer term were more complicated.  He pointed out that the Bangladeshi government is not planning to sue any other country to raise finance but sees solidarity as more important than compensation.

UNEP Emissions Gap report 2016


What is the role of the Emission Gap reports? The impressive UNEP representative Dr. Jacqueline McGlade pointed out that if nothing else, these reports constistuted a ‘warning instrument’ to the global community. She recommended that nation states make use of Paris Agreement to create momentum to increase ambition. While the facilitative dialogue planned for 2018 and global stocktake in 2023 will focus attention once again, if the global community is to meet at the very least its minimum target of limiting global warming to 2 degrees, emissions must peak by 2020. Most of the scenarios in the report do assume use of Negative Emission Technologies (NETs) and Bioenergy with Carbon Capture and Storage (BECCS). As countries delay action to reduce emissions, inevitably more BECCS will be needed.

However a couple of interventions at this session highlighted deficiencies in the UNEP methodology:

  1. The UNEP approach assumes 100% compliance but in the absence of an accountability mechanism (and the election of Trump in the US) there is no way of ensuring that countries will deliver.
  2. Assumes that tropical deforestation rates will not increase.
  3. No mention of tipping points in the climate system which might be hit under current emissions scenarios.
  4. INDCs are silent post-2030.

UNEP’s responses to these questions were very interesting too. They don’t assess the likelihood of compliance, and admit that their assessment of the likelihood of the INDCs not breaching 2 degrees is probabilistic. They also assume that once on a low-emission pathway that a country will stay on that path. But that doesn’t take account of the lock-in effect of existing fossil infrastructure.