What role could legislation and litigation play following COP27 in closing implementation gaps on mitigation and Loss and Damage?
Alina Averchenkova and Tiffanie Chan explore how legal tools can pursue accountability, access to damages and advance climate justice as a supplement to the crucial UN processes.
Last month’s UN climate conference, COP27, framed itself around the enactment of countries’ climate commitments. However, a significant implementation gap remains, not least in mitigating emissions, and in mobilising the finance for Loss and Damage.
While many more countries committed to net zero targets following COP26 in Glasgow last year, the UN’s Emissions Gap Report 2022 points to a worrying trend of too little progress. Current policies point to a 2.8°C temperature rise by the end of the century. Yet closing this mitigation gap did not receive sufficient attention at COP27. On Loss and Damage, things looked more promising, as the conference closed with a “breakthrough” on finance, including a decision to establish a fund and new funding arrangements to support developing countries to address the impacts of climate change. However, details of the package were not decided and there is still a long way to go before it is operationalised. Parties agreed that a transitional committee will meet over the next year to discuss modalities, governance and sources of funding but which state and non-state actors will be asked to contribute, and to what extent, is not yet clear.
These implementation gaps highlight the ever growing importance of strong domestic laws, policies and climate governance frameworks for enabling implementation of a country’s climate commitments and creating accountability for meeting science-based targets. They can set in motion the subsequent passage of mitigation and adaptation executive policies. Enacting domestic climate legislation is a critical avenue for holding states accountable to delivering their COP climate commitments. Alongside, litigation can be used to help ensure these laws are enforced.
How can legislation – and especially framework laws – support climate ambition?
Sustained political commitment, backed up by effective governance infrastructure and accountability mechanisms, is needed to reach climate goals. Climate legislation can help advance this in many ways and has been shown to be an effective tool for developing and embedding credible climate governance institutions. Laws mandate clear responsibilities across different spheres of government, which is important in the context of carrying forward the negotiated outcomes of the COPs.
Introducing ‘framework’ laws in particular allows for better integration of climate change concerns into other key public policy areas. Framework laws are multi-sectoral in scope and establish policies, institutions and targets required to meet national climate change objectives. They embed political ambition into domestic climate laws and provide an additional layer of protection during times of political change. They can make it more difficult for governments to revoke policy negotiated by a previous administration.
Framework laws should fit the national context. For example, Kenya’s framework ‘Climate Change Act’ has a strong focus on adaptation, whereas Germany’s ‘Federal Climate Protection Act’ focuses on targets and pathways to climate neutrality and has no provision for adaptation. To design effective laws that respond to the domestic socioeconomic, geographical and political contexts, it is important to consider the governance demands of climate change and needs of the specific country. The UNFCCC side event we co-hosted at COP27 discussed how laws can be designed to suit national contexts, looking at the diverse experiences of Peru, South Africa, India, the UK, Zimbabwe and the USA. We proposed that laws should be designed to realise the unmet climate governance functions in a given country context. For example, if the governance gap relates to strategy articulation, a framework law may mandate the development of national adaptation plans or low greenhouse gas emission development strategies.
Litigation as an additional tool for implementation and accountability
Of course, introducing climate laws is only a starting point; enforcement is not guaranteed. Climate litigation is an avenue through which the public can hold states and non-state actors, such as companies, accountable for their actions and commitments. The Intergovernmental Panel on Climate Change (IPCC) recently acknowledged that litigation has “influenced the outcome and ambition of climate governance” and over 2,000 climate change-related cases have been filed globally.
Prior to COP27, lawyers from over 20 organisations issued an open letter with NGOs warning governments that they must deliver stronger science-based targets or risk facing further legal action. Plaintiffs from high-profile climate litigation cases (e.g. Pabai Pabai & Guy Paul Kabai v. Commonwealth of Australia, Smith v. Attorney-General, and Neubauer et al. v. Germany), gathered at COP27, sending a strong message to high-emitting states and companies that even in the absence of framework laws, climate action can be understood as a legal duty. Many other litigants stepped forward in solidarity during a UNFCCC side event, sharing similar cases from their respective jurisdictions.
There are often commonalities between climate litigation and the most important issues raised by the international community. These were highlighted in the Grantham Research Institute’s 2022 report on global trends in litigation in relation to the COP26 discussions. Now we see the headline issue of COP27, Loss and Damage, starting to be reflected in litigation. For example, the Republic of Vanuatu is leading a coalition of states to seek an advisory opinion from the International Court of Justice (ICJ) to clarify the rights and obligations of states under international law in relation to the adverse effects of climate change. Whilst ICJ advisory opinions are non-binding, they carry significant moral and legal weight. If successful, the opinion could open doors to more expansive litigation, calling on high-emitting states to step up action and lend greater assistance to developing countries.
Cases to watch – powerful precedents against private companies
If progress slows in international state-led Loss and Damage climate talks, it may further motivate those affected by climate impacts to pursue litigation against high-emitting companies as an alternative route to access compensation. Ongoing cases against high-emitting companies have the potential to set powerful precedents in the realm of Loss and Damage. For example, Peruvian farmer Saúl Luciano Lliuya alleges that RWE, a German energy company, having knowingly contributed to climate change by emitting large volumes of greenhouse gases, bears responsibility for the melting of mountain glaciers near his home town of Huaraz. If successful, RWE will be required to provide financial contributions towards local flood risk reduction measures. In another case, Four Islanders of Pari v. Holcim, the plaintiffs are requesting Switzerland-based buildings materials company Holcim to pay proportional compensation for climate change-related loss and damage already suffered in the Indonesian island of Pari, as well as provide financial contributions to adaptation measures. They also ask for an order requiring that the company rapidly reduces its emissions.
More Loss and Damage cases may now be filed
These types of climate-related cases are difficult to win, as attributing specific loss and damage to a particular company’s emissions remains challenging. However, as attribution science continues to evolve, providing a stronger legal evidential basis for plaintiffs to rely on, we expect more cases to emerge. If such cases are successful, the deep pockets of companies will become a viable source for vulnerable communities to access compensation for Loss and Damage, outside of formal COP negotiations. It could also provide impetus for a more focused discussion of how fossil fuel companies could contribute to Loss and Damage funding within the international negotiations, building on the proposals included in the Bridgetown Initiative for reforming international climate finance, put forward by Barbados’ Prime Minister Mia Mottley and others during COP27.
Critical interactions between domestic and international processes
The UN COP climate conferences are a necessary arena for advancing climate action – but beyond the UN processes, robust domestic legislation, tailored to local contexts, will need to play a leading role in closing the gap between pledges and implementation. While we wait for the structure of Loss and Damage finance to shape up over the coming year, climate litigation continues to be very important avenue to hold state and non-state actors accountable for their contributions to climate change.
The authors would like to thank Catherine Higham for helpful review comments and have drawn on the Economist Impact Podcast ‘Who will pay for climate loss and damage?’ to which she contributed. The commentary also draws on the policy brief ‘Climate governance functions: towards context-specific climate laws’, to which Alina Averchenkova and Catherine Higham contributed.