Climate Law Insider, Newsletter 1/2021

List of contents: UK Supreme Court upholds appeal by Heathrow Airport Ltd., but expansion remains uncertain. People v Arctic Oil: Norwegian Supreme Court decision defers climate considerations to subsequent planning stage. UNEP’s Emissions Gap Report: ‘Are we on track to bridging the gap? Absolutely not’Australia: the first lawsuit against a trust fund on climate change grounds. Climate loans for poorer countries an ‘overlooked scandal’ says Oxfam’s report. Changing climate in Georgia?

- UK Supreme Court upholds appeal by Heathrow Airport Ltd., but expansion remains uncertain -

The British Supreme Court upheld the appeal by Heathrow Airport Limited on 16th of December 2020 against the decision by the Court of Appeal, which found that the policy foundation for Heathrow’s expansion lacked adequate climate considerations. The Court of Appeal’s finding from February 2020 that the Airport’s National Policy Statement (ANPS) was of no legal effect unless reviewed gained much attention worldwide. It was perceived as being historic for benchmarking the administrative decision against the UK’s policy commitments under the Paris Agreement. The Supreme Court’s decision overturned the ruling and reinstated the policy foundation for Heathrow’s expansion. However, there is no “green light” for expansion – full climate considerations still remain to be addressed and resolved, but according to the judgment, this will happen at the subsequent planning permission stage. The next step for the airport’s expansion is to file a planning application, which will likely reopen the issue for discussion. At that stage, the climate impact of the expansion need to be addressed with regard to the carbon reduction targets in place at the time. With the national Climate Change Committee’s advice for demanding climate targets for the aviation sector and given the present crisis of the sector due to the pandemic, the expansion seems far away from becoming reality.

- People v Arctic Oil: Norwegian Supreme Court decision defers climate considerations to subsequent planning stage -

On 22nd December 2020, the Norwegian Supreme Court upheld the government’s 2011 and 2013 grants of exploration licenses in the Arctic. After Heathrow, this is the second closely watched high-level climate case of the year where the court deferred the consideration of climate change impacts to a later stage in the permission process. In its judgment, the Supreme Court found that the link between the exploration and emissions causing harm to the climate to be too remote, but acknowledged that with regard to future permission for the production of any oil that might be discovered, “great weight” would be placed on emissions in the decision-making process. Greenpeace Nordic, Nature and Youth, and other organizations argued that the grant of exploration licenses violated the right to a healthy environment enshrined in the Norwegian constitution. The court affirmed that the protection against environmental harms includes protection against climate harms created by burning exported oil, but that it is at the stage of granting production licenses that the authorities have the “right and duty” to deny them if granting the licenses would be in violation of that right. “The Court’s decision shifts the legal burden back to the government to seriously address the climate impacts of oil exports in any future production licensing,” said CIEL President Carroll Muffett. “And by delaying those decisions even as the climate crisis accelerates, the Court has dramatically increased the risk that costly investments in oil exploration will add more unexploitable and worthless reserves to companies’ mounting piles of stranded assets.”

- UNEP’s Emissions Gap Report: ‘Are we on track to bridging the gap? Absolutely not’ -

The eleventh edition of the United Nations Environment Programme’s (UNEP) Emissions Gap Report assesses the difference between where greenhouse (GHG) emissions are predicted to be in 2030 and where they should be to avoid the worst impacts of climate change. This includes emissions from the shipping and aviation sectors and lifestyle change. This year’s report contains preliminary assessments of the implications of the pandemic and associated rescue and recovery measures. The report shows that despite a brief dip in CO2 emissions caused by the COVID-19 pandemic, the world is still heading for a temperature rise of more than 3°C this century – far beyond the Paris Agreement goals of limiting global warming to well below 2°C and ideally 1.5°C. However, a low-carbon pandemic recovery could cut 25 per cent off the GHG emissions expected in 2030, based on policies in place before COVID-19. Such a recovery would far outstrip savings foreseen with the implementation of unconditional commitments in countries’ Nationally Determined Contributions under the Paris Agreement, and put the world close to the 2°C pathway. The content of this report will certainly keep playing an important role in framing the global conversation on more ambitious climate action, serving as factual basis for climate litigation and justifying new and bolder climate legislation.

- Climate loans for poorer countries an ‘overlooked scandal’ says Oxfam’s report -

Oxfam’s Climate Finance Shadow Report 2020 shows the progress towards the $100bn goal developed countries committed to mobilize per year by 2020 to support developing countries’ climate action, a key element in the Paris Agreement. The report looks at the latest donor figures for 2017–18, with a strong focus on public finance. It considers fundamental questions concerning how developed countries are counting the climate finance they report; what it is being spent on; where it is going; how close we are to the $100bn goal; and what lessons need to be learned for climate finance post-2020. The report found that of the estimated $59.5bn in public climate finance reported by developed countries, climate-specific net assistance may be just $19–22.5bn. In addition, the net financial value of climate finance to developing countries – the grant equivalent – may be less than half of what is reported by developed countries. Moreover, around 20% of reported public climate finance was estimated to be grants, compared to 80% reported as loans and other non-grant instruments. Also, only an estimated 25% of reported public climate finance was allocated for adaptation and 66% was spent on mitigation. Finally, an estimated 20.5% of reported finance went to least developed countries and around 3% to small island developing states. These findings might have broader implications for future negotiations on financial mechanisms under the Paris Agreement, on multilateral climate development agreements and even on transnational climate litigation.

- Changing climate in Georgia? -

By winning two Senate seats in Georgia, the incoming Biden-Harris administration substantially improved its ability to adopt ambitious climate policies. In particular, the veto-power of Republicans decreased significantly. However, Republicans still have levers to influence the Democrats’ climate policies, including the filibuster and refusing supermajorities of 60 votes in the Senate. Meanwhile, observers of US climate policy have begun redirecting their attention towards Democrats- in this policy field – including increased political power for Senators like Joe Manchin from coal state West Virginia. These dynamics are another reason why it is difficult to predict at this stage whether Biden and Harris will have the capacity to adopt effective and lasting domestic climate policies.
For international climate policy under the UNFCCC, however, winning the seats in Georgia makes a constructive and proactive role of the US in shaping the international post-Paris climate governance much more plausible and may help create political momentum for the climate negotiations at COP26 in Glasgow scheduled for November 2021.

Kind Regards,

Anne, Juan, and Felix

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