In a landmark judgment, the Federal Court found the environment minister has a duty of care to young people

AAP Image/James Gourley, Author provided

Laura Schuijers, The University of MelbourneThis morning, the Australian Federal Court delivered a landmark judgement on climate change, marking an important moment in our history.

The class action case was brought on behalf of all Australian children and teenagers, against Environment Minister Sussan Ley.

Their aim was to prevent Ley from possibly approving the Whitehaven coal mine extension project, near Gunnedah in New South Wales. They argued that approving this project would endanger their future because of climate hazards, including causing them injury, ill health or death, and economic losses.

The court dismissed the application to stop the minister from approving the extension. But that’s just the beginning.

Before making those orders, the court found a new duty it never has before: the environment minister owes a duty of care to Australia’s young people not to cause them physical harm in the form of personal injury from climate change.

‘Australia will be lost’: the court’s moving findings

The court considered evidence in the case from the Intergovernmental Panel on Climate Change, CSIRO, the Bureau of Meteorology, and globally renowned ANU climate scientist Will Steffen.

In a tear-jerking moment during the Federal Court’s live-streamed summary, the court found that one million of today’s Australian children are expected to be hospitalised because of a heat-stress episode, that substantial economic loss will be experienced, and that the Great Barrier Reef and most of Australia’s eucalypt forest won’t exist when they grow up.

It found this harm is real, catastrophic, and – importantly from a legal perspective – “reasonably foreseeable”. In decades past, courts have considered climate change to be a “speculative”, “future problem”.

That is no longer the case. The court concluded, in a moving paragraph from the written judgment:

It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well.

The physical environment will be harsher, far more extreme and devastatingly brutal when angry. As for the human experience – quality of life, opportunities to partake in nature’s treasures, the capacity to grow and prosper – all will be greatly diminished.

Lives will be cut short. Trauma will be far more common and good health harder to hold and maintain.

None of this will be the fault of nature itself. It will largely be inflicted by the inaction of this generation of adults, in what might fairly be described as the greatest inter-generational injustice ever inflicted by one generation of humans upon the next.

To say that the children are vulnerable is to understate their predicament.

Establishing a new duty of care

The children took a novel route in asserting the federal environment minister owed them a duty of care. A duty of care means a responsibility not to take actions that could harm others. A duty of care is the first step in a claim of negligence.

A similar duty was found in the Netherlands in 2015, as a global first. In 2019, the Supreme Court upheld that duty – the Dutch government owed its citizens a duty to reduce emissions in order to protect human rights.

Other cases around the world were inspired by that success, including the one decided in Australia today.

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The court today didn’t say the minister has a duty to stop all coal projects of any size, as it was only considering the Whitehaven extension project. But this is still hugely significant.

Australia has been repeatedly criticised on the global stage for its stance on new coal and climate change more generally. Now, we may find the decisions made by its environment ministers could amount to negligent conduct.

The buck doesn’t stop at governments

Back in the Netherlands, something else significant happened this week — the world learned the buck doesn’t stop at governments.

In what’s been described as “arguably the most significant climate change judgement yet”, a court in The Hague ordered Royal Dutch Shell, a global oil and gas company, to reduce its carbon dioxide emissions by 45% by 2030 compared with 2019 levels, via its corporate policy.

This could have far-reaching consequences for oil and gas companies all over the world, including in Australia.

So now we have a dual momentum — governments need to be careful what they approve, and fossil fuels companies need be careful what they propose.

Putting the minister on notice

It’s important to recognise Ley hasn’t made a decision yet to approve the coal mine extension. The young Australians were seeking to stop her from approving it, and in that they didn’t succeed.

However, her responsibility to young people has now been formally recognised by the court.

Today’s children are vulnerable to climate change and they depend on the environment minister to protect their interests. We don’t know yet if the minister will approve the mine extension, or if she does, whether that means she has breached her duty to the children. But we do know how significant the harm from climate change will be.

In 2019, a NSW court confirmed now is not the time to be approving new coal, and every coal mine counts.

Today’s judgement opens the door for future litigation if the minister is not careful about approving projects that could harm the next generations of Australians.

But importantly, it puts the federal environment minister on notice — while political terms might be only short, decisions now have intergenerational consequences for the future.

Short-term financial gain can have detrimental impacts on the health and economic wellbeing of those who can’t vote yet.

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These young Queenslanders are taking on Clive Palmer’s coal company and making history for human rights

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This story is part of a series The Conversation is running on the nexus between disaster, disadvantage and resilience. It is supported by a philanthropic grant from the Paul Ramsay foundation. You can read the rest of the stories here.

Laura Schuijers, Research Fellow in Environmental Law, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Can Scott Morrison deliver on climate change in Tuvalu – or is his Pacific ‘step up’ doomed?

Pacific leaders don’t want to talk about China’s rising influence – they want Scott Morrison to make a firm commitment to cut Australia’s greenhouse gas emissions.
Mick Tsikas/AAP

Tess Newton Cain, The University of Queensland

This week’s Pacific Islands Forum comes at an important time in the overall trajectory of Prime Minister Scott Morrison’s very personal commitment to an Australian “stepping up” in the Pacific.

To paraphrase the PM, you have to show up to step up. And after skipping last year’s Pacific Islands Forum, Morrison has certainly been doing a fair amount of showing up around the region, with visits to Vanuatu and Fiji at the beginning of the year and the Solomon Islands immediately after his election victory.

Add to this his recent hosting of the new PNG prime minister, James Marape, and it is clear there has been significant energy devoted to establishing personal relationships with some of the leaders he will sit down with this week.

An ‘existential threat’ to the region

Regional politics and diplomacy in the Pacific are not for the faint of heart. It’s clear from the tone of recent statements by Foreign Minister Marise Payne and the minister for international development and the Pacific, Alex Hawke, that there is some disquiet ahead of the Tuvalu get-together.

And with good reason. For some time, the leaders of the region have been becoming increasingly vocal about the lack of meaningful action from Canberra when it comes to climate change mitigation.

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Most recently, ten of the Pacifc Islands Development Forum (PIDF) members signed the Nadi Bay Declaration, which advocated a complete move away from coal production and specifically criticised using “Kyoto carryover credits” as a means of achieving Paris targets on reducing emissions.

While this body does not have the regional clout of the Pacific Islands Forum, its membership includes key players, notably Fiji, Tuvalu, and the Republic of the Marshall Islands, whose leaders have all spoken out strongly on the need for stronger action on climate change.

In a speech last month, Fijian Prime Minister Frank Bainimarama urged his fellow Pacific leaders to withstand any attempts to water down commitments on climate challenge in the region and globally.

Bainimarama’s warning: ‘Our region remains on the front line of humanity’s greatest challenges’

Bainimarama is attending this year’s Pacific Islands Forum for the first time since 2007, and has already made his presence felt. Earlier this week, he urged Australia to transition as quickly as possible from coal to renewable energy sources, because the Pacific faces

an existential threat that you don’t face and challenges we expect your governments and people to more fully appreciate.

Losing credibility on its ‘step up’

Given the state of Australia’s domestic politics when it comes to making climate change action more of a priority, it is hard to see how Morrison can deliver what the “Pacific family” is asking for.

The recent announcement of A$500 million to help Pacific nations invest in renewable energy and fund climate resilience programs is sure to be welcomed by Pacific leaders. As is the pledge for A$16m to help tackle marine plastic pollution.

But none of this money is new money – it’s being redirected from the aid budget. And it does not answer the call of Pacific leaders for Australia to do better when it comes to cutting emissions.

An aerial view of Funafuti, the most populous of Tuvalu’s country’s nine atolls.
Mick Tsikas/AAP

Why does this matter? Because it’s becoming increasingly obvious that the inability – or refusal – to be part of the team when it comes to climate change is undermining Australia’s entire “Pacific step-up”.

If Morrison, and the Australian leadership more broadly, want to reassure Pacific leaders that Australia’s increased attention on the region is not just all about trying to counter Chinese influence, this is where the rubber hits the road.

This is not about whether China is doing better when it comes to climate change mitigation than Australia. The Pacific has greater expectations of Australia, not least because Australian leaders have been at pains to tell the region, and the world, that this is where they live – that Pacific islanders are their “family”.

And for Pacific islanders, if you are family, then there are obligations. This week, as has been the case previously, Pacific leaders will make clear that addressing climate change is their top priority, not geopolitical anxieties over China’s increasing role in the region.

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Everything but China is on the table during PNG prime minister’s visit

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There is little doubt that Australia’s “Pacific step-up” is driven by concerns about the rising influence of China. But Morrison knows better than to voice concerns of that type – at least in public – while in Tuvalu.

Numerous Pacific leaders have made it clear that as far as they are concerned, partnerships with Beijing (for those that have them) provide for greater opportunity and choice.

While they welcome renewed ties with traditional partners like Australia and New Zealand, they maintain a “friends to all and enemies to none” approach to foreign policy. That is unlikely to change any time soon.

Tuvalu’s Prime Minister Enele Sopoaga has warned Australia that its Pacific ‘step up’ could be undermined by a refusal to act on climate change.
Mick Tsikas/AAP

Will Tuvalu prove a turning point?

Tuvalu Prime Minister Enele Sopoaga may well be hoping that when Morrison sees for himself how climate change is affecting his country, he will be so moved personally, he will shift Australia’s stance politically.

Indeed, on arrival in the capital of Funafuti this week, leaders are being met by children sitting in pools of seawater singing a specially written song “Save Tuvalu, Save the World”.

So what can Morrison realistically be expected to achieve during the summit? He will be able to demonstrate Australia’s commitment to other issues that are important to regional security, such as transnational and organised crime and illegal fishing.

He can also hope the personal relationships he has cultivated with Pacific leaders deliver returns by way of compromise around the wording of the final communique, if only to avoid a diplomatic stoush.

But if there is no real commitment to cutting greenhouse gas emissions, he will leave plenty of frustration behind when he returns to Australia.

Tess Newton Cain, Adjunct Associate Professor, School of Political Science & International Studies, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Happy birthday, SA’s big battery, and many happy returns (of your recyclable parts)

Aleesha Rodriguez, Queensland University of Technology

A year ago today, Tesla’s big battery in South Australia began dispatching power to the state’s grid, one day ahead of schedule. By most accounts, the world’s largest lithium-ion battery has been a remarkable success. But there are some concerns that have so far escaped scrutiny.

The big battery (or the Hornsdale Power Reserve, to use its official name) was born of a Twitter wager between entrepreneurs Mike Cannon-Brookes and Elon Musk, with the latter offering to build a functioning battery in “100 days or it’s free”.

Musk succeeded, and so too has the battery in smoothing the daily operation of South Australia’s energy grid and helping to avert blackouts.

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A month in, Tesla’s SA battery is surpassing expectations

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The battery has also been a financial success. It earned A$23.8 million in the first half of 2018, by selling stored electricity and other grid-stabilising services.

These successes have spurred further big battery uptake in Australia, while the global industry is forecast to attract US$620 billion in investments by 2040. It’s clear that big batteries will play a big role in our energy future.

But not every aspect of Tesla’s big battery earns a big tick. The battery’s own credentials aren’t particularly “green”, and by making people feel good about the energy they consume over summer, it arguably sustains an unhealthy appetite for energy consumption.

The problem of lithium-ion batteries

The Hornsdale Power Reserve is made up of hundreds of Tesla Powerpacks, each containing 16 “battery pods” similar to the ones in Tesla’s Model S vehicle. Each battery pod houses thousands of small lithium-ion cells – the same ones that you might find in a hand-held device like a torch.

The growing demand for lithium-ion batteries has a range of environmental impacts. Not least of these is the issue of how best to recycle them, which presents significant opportunities and challenges.

The Hornsdale Power Reserve claims that when the batteries stop working (in about 15 years), Tesla will recycle all of them at its Gigafactory in Nevada, recovering up to 60% of the materials.

It’s important that Tesla is held account to the above claim. A CSIRO report found that in 2016, only 2% of lithium-ion batteries were collected in Australia to be recycled offshore.

However, lithium-ion batteries aren’t the only option. Australia is leading the way in developing more sustainable alternative batteries. There are also other innovative ways to store energy, such as by harnessing the gravitational energy stored in giant hanging bricks.

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Charging ahead: how Australia is innovating in battery technology

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Solving symptoms, not problems

Tesla’s big battery was introduced at a time when the energy debate was fixated on South Australia’s energy “crisis” and a need for “energy security”. After a succession of severe weather events and blackouts, the state’s renewable energy agenda was under fire and there was pressure on the government to take action.

On February 8, 2017, high temperatures contributed to high electricity demand and South Australia experienced yet another widespread blackout. But this time it was caused by the common practice of “load-shedding”, in which power is deliberately cut to sections of the grid to prevent it being overwhelmed.

A month later, Cannon-Brookes (who recently reclaimed the term “fair dinkum power” from Prime Minister Scott Morrison) coordinated “policy by tweet” and helped prompt Tesla’s battery-building partnership with the SA government.

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Since the battery’s inception the theme of “summer” (a euphemism for high electricity demand) has followed its reports in media.

The combination of extreme heat and high demand is very challenging for an electricity distribution system. Big batteries can undoubtedly help smooth this peak demand. But that’s only solving a symptom of the deeper problem – namely, excessive electricity demand.

Time to talk about energy demand

These concerns are most likely not addressed in the national conversation because of the urgency to move away from fossil fuels and, as such, a desire to keep big batteries in a positive light.

But as we continue to adopt renewable energy technologies, we need to embrace a new relationship with energy. By avoiding these concerns we only prolong the very problems that have led us to a changed climate and arguably, make us ill-prepared for our renewable energy future.

The good news is that the big battery industry is just kicking off. That means now is the time to talk about what type of big batteries we want in the future, to review our expectations of energy supply, and to embrace more sustainable demand.

Aleesha Rodriguez, Phd Student, Digital Media Research Centre, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Business big hitters highlight the huge growth in climate risk management

Clive Hamilton

“Investors are running ahead of governments.”

This is arguably the most striking and encouraging statement heard so far at the Paris climate conference. It was made in a remarkable speech at a forum on private financing by Martin Skancke, chair of Principles for Responsible Investment (PRI), the world’s largest network of investors.

To drive home the point, he referred to the Montreal Carbon Pledge, which in a little over a year has been signed by 120 investors who control more than US$10 trillion in assets (these guys speak in trillions, rather than billions).

It is true that the investors are committing only to measure and disclose the carbon footprint of their portfolios. But it’s also true that “what gets measured gets managed” – which in this case means, once it’s measured you have to manage it.

Another panellist at the forum referred to “the quiet revolution” in green investment, including huge growth in green bonds, expected to be more than US$40 billion this year. The aim is to expand it to US$900 billion. ING France chief executive Karien van Gennip described how her bank’s recent offering of green bonds was seven times oversubscribed within 48 hours.

Shaun Tarbuck, head of the world’s biggest insurance federation, spoke of “a new paradigm” in the business world, emphasizing that these are not just political statements. Even China has developed a strategy for greening its financial system.

Although Bill Gates’ billionaires’ initiative has all the sex appeal and attracted the media attention, the real force in bringing about the transition to low-carbon energy economies will come from private and institutional investors. Not only do they control vastly more cash than the billionaires but they are changing the structure of energy economies now, rather than gambling on “breakthrough technologies” that will not have an appreciable impact for 20 or 30 years, when it will already be too late.

Sea change

The sea change in the global investment community has occurred only in the past 12 months. The signs have all been there, not the least of which is the recognition by the G20 group of major economies that climate change represents a threat to the stability of the global financial system.

Last April, G20 finance ministers and central bank governors asked the Financial Stability Board (FSB) of the world’s central banks to prepare a report on climate risk, to be considered at its next meeting in China. This is a big deal; it’s the system, not individual corporations, that is now seen to be at risk.

The FSB is chaired by Bank of England governor Mark Carney, who in September created huge waves in the global financial sector with a speech to insurers warning of serious risks to investors from climate change (a warning met with squeals from the fossil fuel industry).

On Friday, at a side event at the conference, Carney listed the types of risk to which financial markets are exposed, including direct risks due to massive insurance payouts after climate disasters, and liability risks for directors should corporations be sued.

But he put most stress on the exposure of capital providers to an “abrupt transition” to a low-energy economy, due to future sudden changes in policy or sentiment. Investors have a fiduciary responsibility to prepare. He may have been thinking of a sharp write-down in fossil fuel asset values as the issue of unburnable coal gathers momentum. Carney wants a market structure that will bring about “an ordered transition” to a zero-carbon economy.

Carney was joined at the event by Michael Bloomberg, who will chair the new FSB taskforce. The businessman and former New York City mayor stressed that corporations have to think about their future financial liabilities from carbon emissions, noting that GE has been ordered to clean up the Hudson River, 20 years after it finished polluting it. No one saw that coming.

Business versus politics

At the same time that Carney and Bloomberg were speaking about climate risks in the financial sector, Laurent Fabius, the president of the conference, was giving a briefing on progress in the negotiations. Two things stood out about the audiences for the competing events. Carney-Bloomberg attracted a bigger crowd and most were wearing dark blue suits. At no previous UN climate summit would a leading central banker have turned up, to have his words copied down by men and women in business attire.

Drew a crowd: Michael Bloomberg
EPA/Ian Langsdon

Today, if you read the business press, climate change is no longer treated as if it were happening in some other world of no interest to investors. So whether the final agreement to come out of the formal negotiations next Friday is strong or weak, the importance of it is the signal it is sending to investors.

The unmistakable message is that the world is changing: the major economies are beginning the transition to low-carbon energy systems, and if you are not planning for it you are not doing your job. It’s taken them a long time, but investors now get it. The issue is not whether they care about climate change, but whether they are properly managing risk in a changing world.

Mark Carney pointed out that the 185 national climate targets on the table for this conference contain real information about where governments and the world are headed, and that it is legitimate for investors to ask companies “what’s your strategy for net zero (emissions)?”

When asked about Republican presidential candidates, Bloomberg was scathing, dismissing their debates as “Kabuki theatre”. He said that he keeps one of the four TV screens by his desk tuned to Fox News. Fox recently spent a whole day expressing outrage at Obama’s climate change efforts, but not one of the talking heads was from business. “No business person could get away with it,” he said.

Clive Hamilton, Professor of Public Ethics, Centre For Applied Philosophy & Public Ethics (CAPPE)

This article was originally published on The Conversation. Read the original article.

Paris climate talks slow to a crawl as obstructionists threaten the deal

Luke Kemp, Australian National University

Hopes are high that a strong climate treaty can be hammered out here in Paris, amid a groundswell of climate action around the world.

But there is little sign of this urgency inside the negotiating halls themselves, and the talks have fallen into many of the same traps that befell the underwhelming Copenhagen summit six years ago.

Negotiators have spent the summit’s opening days working tirelessly to trim down the 54-page draft text of the Paris agreement into a shorter version to take into week two of the talks. The fact that the current text is still 48 pages long speaks volumes about the pace of the negotiations.

Each of the different sections of the draft agreement (climate finance, adaptation, emissions targets, and so on) are being worked on by numerous negotiating groups.

At any given time, there might be several smaller meetings taking place for different paragraphs, or even individual sentences, for each topic. The abundance of constant meetings is wearing negotiators ragged. Developing countries’ delegations, which are notoriously understaffed, have repeatedly complained of suffering from overstretch and exhaustion. But there is simply no other way forward.

Unfortunately, many issues have been going backwards. The discussion on legal form (whether the Paris agreement will be a legally binding treaty) is one example. Tuesday’s initial discussion of this issue lasted for more than three hours and resulted in a longer text with more disputed sections. This is by no means an exception.

The actions of certain delegations have contributed significantly to this. Saudi Arabia is traditionally known as an obstructionist in the climate talks. Its delegates have lived up to their reputation in Paris.

Bracketing text suggests that the wording is up for deletion, or is at least disputed. A Saudi negotiator will often briskly walk into a negotiating session, bracket some text, question the procedures, engage little thereafter, and leave before the session is closed.

Stalling tactics and bracketing numerous paragraphs across the agreement have been used to slow the negotiations to a snail’s pace.

Despite the wider political momentum on climate action outside these walls, the negotiations themselves tend to operate in a bubble. They are strangled by arcane procedures and old ideological battles.

Working a treaty

A key point of debate is whether or not the Paris climate agreement will be classed as an international treaty. It’s a delicate issue that has already threatened to stall the talks.

In one sense, this legal issue is very straightforward. A treaty, defined under the Vienna Convention, is an agreement that is binding under international law. So an agreement is either a treaty or not. This depends on some legal interpretation as there is no direct branding of an agreement as a treaty per se. A treaty is binding under international law, while an agreement only has political force.

Going into the negotiations, it seemed obvious that the Paris agreement would almost certainly be an international treaty. Countries’ climate targets would remain non-binding and nationally determined, but the agreement itself – including issues such as how often to review the targets – would be a treaty.

The opening days suggest that this may not be the case. The legal form of Paris is still very much up for grabs.

During the opening discussions Tuvalu wanted to insert text which would imply that the Paris outcome would be a treaty. But the United States expressed concerns and wanted to bracket Tuvalu’s suggestion. Saudi Arabia then suggested bracketing the entire paragraph.

Tensions flared, which is why the session lasted three hours and resulted in an even more complex and difficult piece of text.

This is coupled with last month’s declaration by US Secretary of State John Kerry that Paris would not result in a legal treaty. Paris, like Copenhagen, may not result in a legally binding deal. But of course, the negotiations are not over yet.

French president Francois Hollande (centre) and foreign minister Laurent Fabius (right) are anxious not to preside over a failure.
EPA/Philippe Wojazer

What’s the plan from here?

The negotiations are scheduled to end on Friday December 11. The plan is to have a final draft of the agreement prepared much earlier than that – ideally by the summit’s middle weekend. The key undecided issues will then be worked out during the early stages of the second week, during the “high-level” sessions attended by ministers.

The finalised agreement will then be agreed on Thursday 10 December and legally adopted the following day, after which negotiators will crack open the champagne before returning home triumphant on the Saturday.

That’s the plan – but it will almost certainly not pan out like that.

What will really happen?

The text is supposed to be handed over today, but at the current rate, the negotiations may need an extra day or two to produce a suitable draft.

The current draft is almost certainly too controversial and unwieldy to be worked out quickly over a few days, and rumours abound that the French host delegation is preparing its own alternative text should the negotiations stall completely.

However, the arrival of ministers on Monday could help to shift the talks forward. Or it could simply entrench the existing negotiating positions, and lead to lowest-common-denominator compromises being made at the last minute.

In the worst-case scenario, the planned treaty could give way to collapse or a smaller agreement between the major powers. If that happened, we would be staring down the barrel of another Copenhagen.

Luke Kemp, Lecturer and PhD Candidate in International Relations and Environmental Policy, Australian National University

This article was originally published on The Conversation. Read the original article.

Al Gore: ‘the will to act is a renewable resource in itself’

Ralph Sims, Massey University

With the main negotiations getting bogged down in such issues as whether to include a 1.5℃ target along with the accepted 2℃ goal (St Lucia and small island states say yes; Saudi Arabia and oil-exporting countries say no), much of the interest is found at the many side events going on at the same time.

One of them was today’s appearance by Al Gore – climate campaigner, former US vice-president, and winner of a Nobel Peace Prize shared with the Intergovernmental Panel on Climate Change.

“Changing to a low-carbon economy is a daunting prospect,” he told a packed audience, before posing three questions:

Must we change? Can we change? Will we change?

“Yes” he said to the first, because our energy supply, food supply, transport systems and forests are all under various levels of stress and increasing risks.

“Yes” to the second, as improved energy efficiency continues and the shift to renewable energy is moving fast. In many cases, renewables are now competing on cost with fossil fuels – not just for electricity but also for heating and transport.

And he said the answer to “Will we change?” will be known when the final text from the Paris meeting is agreed at the end of next week – only then will businesses and investors know where they stand.

“Investors now need to look closely at investing in fossil fuel companies else they may be left with stranded assets because much of the known coal, oil and gas reserves have to be left in the ground or under the sea,” Gore said. “Now is the time to consider divestment of such investments.”

This was supported in the ensuing panel discussion, in which one speaker made the point that the composition of company boards will have to change to accommodate “climate-comprehending members”, and not just bankers and lawyers.

And a question from the floor from a member of the World Council of Churches, which includes some major investors, asked if progress towards this level of understanding is happening rapidly enough.

Gore’s earlier closing statement – “the will to act is a renewable resource in itself” – summed up the potential well.

Ralph Sims, Professor, School of Engineering and Advanced Technology, Massey University

This article was originally published on The Conversation. Read the original article.

India should not be allowed to hold the world to ransom at the climate talks

Clive Hamilton

No one is going to allow the Paris climate talks to collapse. The memory of Copenhagen is still raw, and US President Barack Obama has invested enormous political capital in a successful outcome.

This situation hands great bargaining power (or rather, blackmailing power) to India. On the final day of the conference, whatever India insists on will be acceded to.

And India, although talking up its renewables investments, is taking a confrontational approach aimed at watering down the final Paris agreement. As the New York Times put it, Indian Prime Minister Narendra Modi can “make or break Obama’s climate legacy”.

India is refusing to endorse what would be the centrepiece of a Paris agreement: five-yearly reviews of emissions reduction commitments, which are essential to giving the post-Kyoto “pledge-and-review” system teeth – or at least more effective gums.

Part of the answer to India’s intransigence is money – it wants more funding for new energy investment and compensation for loss and damage – but at its core, the refusal to cooperate arises from a nationalist chip on the shoulder left over from colonialism.

But it has to be asked: why is the world community allowing India to hold it to ransom? The simple answer is that it is commonly accepted that when the chair brings down the gavel on the final agreement, there must be consensus.

This answer is not a good one. The expectation of consensus among major powers is inherited from the UN Security Council and the early practice of UN climate conferences to ensure that developing countries felt included.

But consensus is not needed to make a Paris agreement legally binding. In fact, “legally binding” is a fiction and its constant deployment here at the talks is something of a puzzle. The Kyoto Protocol was legally binding under international law, but that did not stop the United States and Australia from refusing to ratify it, and Canada from ratifying then repudiating it. Nothing happened.

Climate law is among the weakest elements of international law. Bolivia refused to endorse the Cancun agreement, declaring it too weak, and a footnote records its dissent. Even some of the strongest international law, the UN Refugee Convention, is flouted with impunity (think Australia and asylum-seekers).

International law is most effective when there are material losses from opting out, such as the loss of most-favoured nation status for countries that do not join the World Trade Organization. That kind of mechanism is the only way to give a climate agreement real bite.

So whatever the words on paper say, anything that comes out of Paris will reflect voluntary commitments, and compliance mechanisms – inventories, reporting and reviews – will also be voluntary. But the strength of those voluntary commitments is vital. “Consensus-minus-one” on a stronger agreement is surely preferable to a weaker agreement with full consensus. So let India dissent, and have its dissent recorded in a footnote to the Paris agreement.

If that is India’s sovereign decision, so be it; but it should be made clear that it will be opting out of all the elements of the agreement, including financial flows. A few years out in the cold (so to speak), while the rest of the world gets on with it, is likely to persuade the emerging giant to adopt a less intransigent position.

Clive Hamilton, Professor of Public Ethics, Centre For Applied Philosophy & Public Ethics (CAPPE)

This article was originally published on The Conversation. Read the original article.

Just how hard will India push in Paris?

Matt McDonald, The University of Queensland

India has emerged as one of the key, and most intriguing, voices at the COP21 talks in Paris.

In the first three days of the conference, Prime Minister Narendra Modi has committed to playing a constructive role in negotiations and has outlined a significant renewable energy program in partnership with France. India has also, however, outlined a plan to expand fossil fuel consumption while calling on developed states to significantly reduce theirs. And today, Indian officials accused the OECD of overestimating developed states’ contributions to climate aid, which promises to be a crucial point of contention in Paris.

India’s position is complex, and it has been complicated still further by the changing approaches of other states.

While positioning itself as a leader and voice of developing states, this role was undermined by the declaration by dozens of other developing states on day 1 of the negotiations, a combination of small island and “climate vulnerable” states. These states argued for stronger global action on climate change, with a commitment to keeping temperature rises to 1.5℃ rather than 2℃.

If this is one club to which India belongs in the context of climate negotiations, the other is that of the world’s largest current contributors to climate change itself. Yet the position of the only two larger national greenhouse gas emitters – the United States and China – is almost unrecognisable from their stances at Copenhagen in 2009. In Paris these states have outlined a commitment to strong climate action in cooperation with each other. In Copenhagen they were accused of scuppering the agreement between them.

All of this puts India in a difficult position.

At one level, their interventions so far haven’t fundamentally challenged the Rio Declaration principle of “common but differentiated responsibility”. This dictates that while a shared global problem, the extent to which individual states bear responsibility for addressing it is determined by factors ranging from historical responsibility to vulnerability, adaptive capacity and developmental imperatives.

And India’s position is more than understandable. With hundreds of millions living in poverty and without access to electricity, and with per capita emissions around 10% of those of the United States in 2012, India surely has grounds to suggest that the onus for making sacrifices to address climate change should be on others.

Yet the extent to which India has drawn attention to concerns about climate finance, including by questioning assessments of aid allocated to date, suggests it is willing to push hard to have these concerns addressed.

Just how hard India is willing to push could well be the money question for the outcome of the conference as a whole. The position of other states raises the real prospect of an isolated India, potentially serving as a fall guy for any failure to reach robust agreement in Paris. How desperate will India be to avoid this outcome?

Matt McDonald, Associate Professor of International Relations, The University of Queensland

This article was originally published on The Conversation. Read the original article.

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