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The race against climate change

Governments made a lot of promises in Paris. Who’s going to make sure they follow through?

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As 2015 drew to a close, climate activist Bill McKibben compared the climate agreement reached in Paris to an overweight groom-to-be promising to “drop three suit sizes” in time for his wedding date a month away.

No doubt, when it comes to saving the planet, time is of the essence. Blowing past deadlines is hardly a palatable option for any of the 195 states that signed on to a new global governance structure for climate action – one designed to fulfill a promise to keep global temperatures under the warming limit of two degrees Celsius over preindustrial levels by the year 2100.

Leave aside all concerns that it’s far from certain that meeting that goal will spare us from the inferno. Assuming it will be good enough, the question for now is can anyone enforce those promises?

To meet the agreement’s stated goals, a recent study published by the scientific journal Nature reckons the global community will have to leave 80 per cent of global coal, 50 per cent of natural gas and 33 per cent of oil reserves in the ground for at least 25 years. 

As of this writing, not a single government has promised to leave fossil fuels buried.

So, are we stuck with another climate deal, empty of substance, that can’t deliver? A lot depends on whether states will back up their pledges with laws and regulations.

In the meantime, it’s worth bearing in mind that there are already more than 800 climate-change laws in effect around the world, according to the Grantham Institute at the London School of Economics. The Institute’s chair, Professor Lord Nicholas Stern, even goes so far as to say that an international climate agreement need not be binding on states to be effective.

Part of the reason: Legal institutions are finally taking matters into their own hands, holding decision-makers accountable to their global climate commitments. This shift in accountability, Stern says, will do more to build mutual confidence between countries than internationally legally binding obligations could ever achieve.

If true, the pressure is most likely to be felt at first in the C-suite and at senior corporate levels. Many countries, led by the United Kingdom, already require that public companies report on their greenhouse gas emissions. Even in the U.S., depending on the circumstances, the Securities and Exchange Commission can require disclosure on climate-change-related risks.

In countries like Canada, where there is no mandatory disclosure for listed companies, there is growing pressure on companies to report on their carbon impacts. As chair of the Financial Stability Board (FSB), Bank of England Governor Mark Carney has set up a task force, led by Michael Bloomberg, to draw up voluntary reporting standards on climate issues.

It wouldn’t be ludicrous to suggest these could become mandatory for carbon-intensive industries at least, soon thereafter. Regardless, businesses may soon feel the pressure from the financial industry. In a speech last year Carney earned the nickname Mystic Mark when he cautioned a room full of Lloyd’s insurers against third-party claims against anyone who fails “to mitigate risks to the climate.” His comments were nevertheless taken seriously among those accustomed to preparing for the future.

A more direct challenge: Late last year, New York Attorney General Eric Schneiderman announced an investigation against ExxonMobil under the state’s securities law to find out whether the company lied to investors about the risks of climate change to its business.

It could herald a flood of climate-change related lawsuits.

Governments will also have to face the music. In March 2015, a working group of international legal experts issued the Oslo Principles on Global Climate Change Obligations, which serve as a road map for legal claims against governments not doing enough to avert climate change. The United Nations Environment Programme (UNEP) also recently published a report that could help support legal claims in jurisdictions that recognize human rights law.

As if on cue, a Dutch court ruled last June in favour of a citizens’ group, ordering the government to cut the country’s emissions by at least 25 per cent by 2020. The plaintiffs argued that international law prohibits states from polluting to such an extent that is damaging to other states.

Of course, these are early days in the field of climate change litigation and though the liabilities may be real, actual progress on the climate front will always be measured against time, and offset by the slow pace of litigation.

The world will have to rely on more than the courts if it is to shed enough of its weight in carbon.