Lawyers fighting for climate change through litigation and legislative reform

Global Trends in Climate Litigation:  2020 Snapshot, published on July 3, is the latest annual review by researchers at the Grantham Institute in the U.K. .It covers the period of May 2019 to May 2020, reporting on the statistics (e.g  26 new climate change cases brought outside the U.S. in 2019), and analyzing trends in the strategies and types of arguments used in climate litigation. The report particularly focuses on the role of human rights arguments (as pioneered in the Urgenda case, but also used in many of the youth-led court challenges); how litigation has been blended with direct protesting in some countries; and the variety of strategies being used to bring lawsuits against corporate emitters of greenhouse gases, the ‘Carbon Majors”.  Although the report concludes that litigation has not resulted in widespread climate policy change so far, it discusses key developments such as the final resolution of the Urgenda case in December 2019, which demonstrates the enormous potential of litigation: “Depending on the lawsuit and strategies employed, litigation might impact on government policy, company profits, share prices and broader public framings around climate change. However, litigation as a governance strategy is costly and risky, and it takes place alongside other political and social mobilisation efforts.”  A summary of the Grantham study appeared in The Energy Mix (August 24), headlined: “Litigation drives global policy change on climate, study shows”. A related academic analysis is available as an NBER Working Paper:  Eskander, Fankhauser, and Setzer . “Global Lessons from Climate Change Legislation and Litigation”  a paper presented at the  2nd Annual NBER Environmental and Energy Policy and the Economy Conference, June 2020.

The Global Trends 2020 Snapshot report is based on two publicly available databases of case law and legal documents: Climate Change Laws of the World database maintained by the Grantham Institute in the U.K. (with 374 court cases in 36 countries, including 23 from Canada but excluding the U.S.; and the Climate Case Chart database maintained by the Sabin Center at Columbia University in the U.S. (featuring 1,213 U.S. climate lawsuits). The Sabin Center also maintains a smaller database of non-U.S. cases, which includes 24 Canadian cases. 

Advocating for Legislative Reform:

As noted in the Grantham 2020 Snapshot report, 80% of global climate litigation occurs in the United States. In addition to litigation, Canadian legal activists also focus on legislative reform: for example, West Coast Environmental Law, Ecojustice, Équiterre, working with Climate Action Network Canada, Environmental Defence and the Pembina Institute released their latest proposals for climate accountability, in the form of a June report, A New Canadian Climate Accountability Act: Building the legal foundation to achieve net-zero emissions by 2050. It proposes five “pillars” for a new statute that would include. long-term, ambitious GHG reduction targets for 2030 and 2050; 5-year carbon budgets; 5-year impact reports tabled before Parliament to assess the risks of current and predicted climate impacts; and an arm’s-length expert climate advisory committee to monitor and report on progress. The recently-formed Canadian Institute for Climate Choices supported this goal with its own report in June, Marking the Way: How Legislating Climate Milestones Clarifies Pathways to Long-Term Goal . The press release provides a summary of the report; it is accompanied by case studies of the existing climate accountability legislation in the provinces of British Columbia and Manitoba, as well as the U.K and New Zealand, considered model jurisdictions.

U.S. Lawyers offer Model Laws for Decarbonization:

In 2019 Legal Pathways to Deep Decarbonization in the United States was published by the Washington-based Environmental Law Institute, in which 59 legal experts offer over 1,000 recommendations for federal, state, local and private action to drastically reduce fossil fuel use and greenhouse gas emissions in the U.S. A  161-page Summary of Legal Pathways was published in an effort to take the message outside the “expert” community – besides succinct summaries of the recommended legal changes, it includes an index by actor – providing recommendations for action by “Companies, Associations, NGOs, and Other Private Entities”. Now, a new website seeks to enable more activism: the Legal Pathways to Deep Decarbonization website, hosted by the Sabin Center for Climate Change Law at Columbia University and the Commonwealth Law School of Widener University, with provides a compilation of actual laws, and model laws drafted and peer-reviewed pro bono by volunteer lawyers. All can be downloaded and customized for other jurisdictions. Some examples: regarding energy efficiency in buildings: the existing St. Louis’ Building Energy Performance Standard 2020. So far, model laws posted on the website deal chiefly with green transportation, for example:  Legislation Mandating Consideration of Greenhouse Gas Reduction as Part of Metropolitan Transportation Planning.  For more on this project, read “Lawyers wanted to help decarbonize the U.S. economy” in Resilience (August 27)   .

25 million jobs forecast by electrifying American buildings, industry, and vehicles

Mobilizing for a Zero-Carbon America  was released in July as the  launch to a new project called Rewiring America.  The report details a strategy which would create 25 million jobs over an intense transition period of three to five years, and 5 million jobs in the subsequent maintenance phase.  Likening the intense mobilization phase to World War 2, the authors call for electrification of almost everything: “The grid would need to be expanded because almost everything would run on electricity, and making it so would require a great many workers…..That will need millions of miles of new and upgraded transmission and distribution to get to the end user. Finally on the demand side, we’ll need to electrify our 250 million vehicles, 130 million households, 6 million trucks, all of manufacturing and industrial processes, and 5.5 million commercial buildings covering 90 billion square feet. ” …..The transition can be done using existing technology and American workers. Indeed, work such as retrofitting and electrifying buildings will by necessity have to be done by American workers in America. No outsourcing. The jobs will be created in a range of sectors, from installing solar panels on roofs to electric vehicles to streamlining how we manufacture products. They will also be highly distributed geographically. Every zip code in America has hundreds, if not thousands, of buildings ripe for electrification in the years to come.”  The full report Mobilizing for Zero-carbon America  is here ; the Executive Summary is here .

The report was summarized and analyzed by David Roberts at Vox, in “How to drive fossil fuels out of the US economy, quickly” (Aug. 6). Roberts, a well-respected climate journalist, states: “Griffith’s work is among the most interesting contributions to the climate discussion in ages”. Roberts’ article is a detailed examination of the data, modelling, and political context of the report, and contends that the job projections are not as important as the underlying argument that it is possible to eliminate 70 to 80 percent of US carbon emissions by 2035 through rapid deployment of five existing electrification technologies:   wind and solar power plants, rooftop solar, electric vehicles, heat pumps, and batteries.

How to decarbonize global industry and achieve Paris targets

Technologies and Policies to Decarbonize Global Industry: Review and Assessment of Mitigation Drivers through 2070”  is an important research paper written by an international collaboration of 30 experts, including Chris Bataille of Simon Fraser University, British Columbia.  Just published in the academic journal Applied Energy, the paper argues that “Fully decarbonizing the global industry sector is a central part of achieving climate stabilization, and reaching net zero emissions by 2050–2070 is necessary to remain on-track with the Paris Agreement’s goal of limiting warming to well below 2 °C.”

decarbonization infographic

The importance of industry is apparent from this infographic from  Energy Innovation

Technologies and Policies to Decarbonize Global Industry”   is a detailed and technical article which identifies and evaluates supply-side technologies such as energy efficiency, carbon capture, electrification, and zero-carbon hydrogen as well as  promising technologies specific to each of the three top-emitting industries: cement, iron & steel, and chemicals & plastics. The paper also considers demand-side approaches including material-efficient design, waste reduction, substituting low-carbon for high-carbon materials, and circular economy interventions.

The discussion related to policy focuses on those which encourage innovative technology, as well as carbon pricing with border adjustments, and energy efficiency or emissions standards. It highlights the policies of China and India as well as low and middle-income countries, and concludes with a brief discussion of the need for a just transition, which closely resembles the ideas in  Low and zero emissions in the steel and cement industries: Barriers, technologies and policies  an Issue Paper written by Chris Bataille for the OECD Green Growth and Sustainable Development Forum in November 2019.

Regarding Just Transition, the article states:

“These principles will require policymakers to shape decarbonization policies to provide adequate timeframes for industrial transition and include workers and community representatives at all stages of the policy development and implementation process. A just transition will also require a better understanding of how social safety nets, such as unemployment insurance and government-supported training programs, should be utilized, where they fall short, and how they can be improved. The transition to green industry will be an iterative process, but it must be accelerated to address our growing list of social, economic, and environmental challenges.”


Deep decarbonization is possible: Suzuki Foundation presents a litmus test for climate change policies in Canada’s 2019 election

Suzuki zeroing-in-on-emissions-canadas-clean-power-pathways-reviewIf, as a new article in The Conversation argues, “To really engage people, the media should talk about solutions”  (May 30) , then the report published by the David Suzuki Foundation on May 29 is right on target.  Zeroing in on Emissions: Charting Canada’s Clean Power Pathways  argues: “Responding to the urgency of climate change can feel overwhelming, but our research confirms we have the solutions and strategies needed to drive national actions and innovations to meet our climate commitments.”  It is important to note that the commitment under consideration is reduction of  greenhouse gas emissions by 80 per cent or more by 2050, and the study focuses only on energy policy, not all sectors of the economy.

The report examines academic, government and business models and studies related to  deep decarbonization for Canada, with special reference to the Deep Decarbonization
Pathways Project , the Trottier Energy Futures Project  and the
Perspectives Énergétiques Canadiennes . The full list of referenced publications takes up 15 pages of the report.  Based on this review of expert research, recommendations are presented, in ten essential policy priorities: 1.  Accelerate clean power  2. Do more with less energy  3. Electrify just about everything  4. Free industry from emissions 5. Switch to renewable fuels  6. Mobilize money  7. Level the playing field  8. Reimagine our communities  9. Focus on what really matters and # 10. Bring everyone along, which  opens with a quote from Canada’s 2018  Task Force on Just Transition Report. The section states: “If well-managed, the clean-energy transition can be a strong driver of job creation, job upgrading, good jobs and reducing inequality. Conversely, a poorly managed transition risks causing unnecessary economic hardship and undermining public support for needed emission-reduction policies. Transition should be seen as part of a broader green economic development strategy that supports community economic development and diversification.” The discussion includes the issues of justice and equality, and Indigenous rights.

According to the press release, this report is meant to influence the discourse in the upcoming election: “These 10 strategies are a litmus test that all climate plans during the 2019 federal election should be held accountable to…. “Actions such as pricing and limiting carbon pollution, prioritizing electrification with clean energy sources and accelerating industry investment in zero carbon solutions must be part of any credible climate plan in 2019.” In addition, it lays the foundation for a three-year project called Clean Power Pathways, “to transition Canada’s energy system at a scope, scale and speed in line with the scientific consensus to avoid climate breakdown.”  The report has grown out of collaborative research sponsored by the Trottier Family Foundation, which remains involved in the upcoming Clean Power Pathways research.

Zeroing in on Emissions: Charting Canada’s Clean Power Pathways is accompanied by a 4-page Executive Summary  and was also summarized by The Energy Mix here  (June 2).

Economists debate decarbonization: optimistic and pessimistic scenarios

debate forum , Is Green Growth Possible? was hosted by the Institute for New Economic Thinking in December, consisting of papers by  economists debating whether catastrophic global warming can be stopped while maintaining current levels of economic growth. The arguments are summarized  for the non-economist in “The Case for ‘conditional optimism’ on climate change” by David Roberts in Vox (Dec. 31) .  Economists may be interested in the full papers, which  include “The Road to ‘Hothouse Earth’ is Paved with Good Intentions” and “Why Green Growth is an Illusion”, both by Enno Schröder and Servaas Storm.  The authors conclude that  “..  The world’s current economies are not capable of the emission reductions required to limit temperature rise to 2 degrees. If world leaders insist on maintaining historical rates of economic growth, and there are no step-change advances in technology, hitting that target requires a rate of reduction in carbon intensity for which there is simply no precedent. Despite all the recent hype about decoupling, there’s no historical evidence that current economies are decoupling at anything close to the rate required…. Without a concerted (global) policy shift to deep decarbonization, a rapid transition to renewable energy sources, structural change in production, consumption, and transportation, and a transformation of finance, … the decoupling will not even come close to what is needed.”

The Inconvenient Truth about Climate Change and the Economy”  by  Gregor Semieniuk, Lance Taylor, and Armon Rezai summarizes and analyzes the October 2018 IPCC report, Global Warming of 1.5 °C. ,  finding it overly optimistic about global productivity growth and fossil fuel energy use, and reiterating the argument that politics are holding back climate change solutions. They conclude that “a big mitigation push, perhaps financed by carbon taxes and/or reductions in subsidies, is possible macroeconomically even if the link between energy use and output is not severed. This, however, would require considerable modifications of countries’ macroeconomic arrangements. Needless to say, military establishments and recipients of energy subsidies wield political clout. Fossil fuel producers have at least as much. Whether national preferences will permit big shifts in the use of economic resources is the key question.”

Finally, in “Conditional Optimism: Economic Perspectives on Deep Decarbonization”, author Michael Grubb  takes issue with Schröder and Storm, saying that their papers rely on historical data and rates of change, and thus are characterized by a “pessimism about our ability to change what matters fast enough. ” Grubb states that this “may  be emblematic of a growing trend in energy-climate economics, of what we might term historical futures analysis.”  He lays out a  technical economic critique and suggests four fundamental principles for his own “conditional optimism”, which relies on analysis based on the rate of displacement of carbon intensive energy supply by the growth of alternate sources.