LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW
“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
Blueprint for the assessment of:
UNFCCC, Art. 3(1): The Parties should protect the climate system ... on the basis of equity ...
Paris Agreement, Preamble: In pursuit of the objective of the Convention, and being guided by its principles, including the principle of equity ... [Preamble]
Art. 4(1): In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible ... and to undertake rapid reductions thereafter ... on the basis of equity ...
IPCC, AR5, 2014
22.214.171.124, 'Equity principles pertinent to burden sharing in an international climate regime ': Here these equity principles are given along four key dimensions—responsibility, capacity, equality, and the right to sustainable development.
126.96.36.199, 'Frameworks for equitable burden sharing': There are various ways of interpreting the above equity principles and applying them to the design of burden sharing frameworks. It is helpful to categorize them into two broad classes. ‘Resource-sharing’ frame- works are aimed at applying ethical principles to establish a basis for sharing the agreed global ‘carbon budget’. ‘Effort-sharing’ frameworks are aimed at sharing the costs of the global climate response ... Neither of these framings is objectively the ‘correct’ one, just as neither collective action framing of the climate change problem is correct.
North Sea Continental Shelf Cases, 1969:
para. 85: the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied ...
para. 88: The Court comes next to the rule of equity. The legal basis of that rule in the particular case of the delimitation of the continental shelf as between adjoining States has already been stated. It must however be noted that the rule rests also on a broader basis. Whatever the legal reasoning of a court of justice, its decisions must by definition be just, and therefore in that sense equitable.
para. 92: Although the Parties have made it known that they intend to reserve for themselves the application of the principles and rules laid down by the Court, it would, even so, be insufficient simply to rely on the rule of equity without giving some degree of indication as to the possible ways in which it might be applied in the present case, it being understood that the Parties will be free to agree upon one method rather than another, or different methods if they so prefer.
para. 93: In fact, there is no legal limit to the considerations which States may take account of for the purpose of making sure that they apply equitable procedures, and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the exclusion of all others. The problem of the relative weight to be accorded to different considerations naturally varies with the circumstances of the case.
Urgenda Foundation vs the Dutch Government, 2015: The principle of fairness means that the policy should not only start from what is most beneficial to the current generation at this moment, but also what this means for future generations, so that future generations are not exclusively and disproportionately burdened with the consequences of climate change. The principle of fairness also expresses that industrialised countries have to take the lead in combating climate change and its negative impact. The justification for this, and this is also noted in literature, lies first and foremost in the fact that from a historical perspective the current industrialised countries are the main causers of the current high greenhouse gas concentration in the atmosphere and that these countries also benefited from the use of fossil fuels, in the form of economic growth and prosperity. Their prosperity also means that these countries have the most means available to take measures to combat climate change.
With thanks to Lawtext Publishing for their kind permission to reproduce this paper (the joint work of Tim Crosland (Plan B), Aubrey Meyer (the Global Commons Institute), and Margaretha Wewerinke-Singh (University of South Pacific, Vanuatu)).
The combination of political and climate crises in early 2017 create the conditions for the ultimate perfect storm. The dramatic collapse of polar ice-sheets, coupled with climatic and weather conditions increasingly hostile to human life and livelihoods, appear to demand an immediate international response at precisely the moment when co-ordinated political action appears unattainable.
Governments have agreed to limit warming to 1.5˚C or ‘well below’ 2˚C, but the world remains on course for disaster. There is currently no plan or framework for closing the gap between action and goal. More specifically there is no common framework to support either the equitable division of the remaining carbon budget or the quantification of rights to finance (upon which any equitable division of the carbon budget must depend).
In this paper we propose a solution. We do not, however, suggest its implementation will be straightforward: after so much procrastination straightforward solutions are no longer available.
Using the basic proposition that all people have equal rights to the earth’s atmosphere we develop a coherent, integrated framework (‘the Blueprint’) which, if adopted, would:
Crucially, implementation of the Blueprint does not depend on the political process. Courts have begun to recognise that the climate crisis threatens constitutional protections and fundamental human rights, and to rule accordingly. However, even where they are willing in principle to order the steps logically and practically necessary to avert disaster, to do so in practice they will require a framework for quantifying ‘common but differentiated responsibilities’ in terms of the common goal.
The Blueprint has been designed to meet this need. By providing an accessible, science-based framework for navigating the complexity of carbon budgets and climate finance it facilitates objective, mutually consistent decision-making in both climate policy and litigation.
Following some further introductory sections, this paper falls into two main parts:
Part 1: Explanation of the approach to historic emissions and division of the future carbon budget
Part 1 introduces the global and country charts, which reveal:
Together, these three elements contextualize each country’s current emissions and finance commitments.
Part 1 also explains the methodology underpinning the charts, using the chart for Norway as illustration.
Part 2: Legal avenues to Blueprint implementation
Recognising the difficulties of raising ambition through the political process, and the growing momentum behind climate change litigation, Part 2 of this paper highlights a number of different legal avenues to:
Specifically Part 2 considers legal actions on the following basis:
* We are grateful to the many experts (both scientists and lawyers) who have provided invaluable comments and suggestions on earlier drafts of this paper. Responsibility for this final version lies, of course, exclusively with the authors. We would also like to thank Catherine Pocock, publishing editor at Lawtext, for all her encouragement, support and co-operation.
 In practical, political terms the Fifth Assessment Report (AR5) of the Intergovernmental Panel on Climate Change (IPCC) serves as the ‘best available science’, recognizing that events in the Arctic, in particular, imply that the pace of change is ahead of its predictions
 See for example ‘Could the Courts bring Order to Climate Change?’, Isabella Kaminski, The ENDS Report, 8 December 2016.
'Ladies and Gentlemen, we face the actuality of scarce resources and the increasing potential for conflict. Policy instruments such as tradable emissions, carbon taxes and joint implementation may well serve to make matters worse unless they are properly referenced to targets and time tables to be observed by those responsible for the damage to the atmosphere and biosphere. Protecting the world’s environment requires that development be sustainable. It also implies the implementation of a programme for convergence at equitable and sustainable par values for use of environmental space on a per capita basis globally. In our view, equal rights to carbon usage is fundamental to the Convention. The social, financial and ecological interrelationships of equity should guide the route to global ecological recovery ...
Equitable burden sharing in emission reduction has no meaning unless it is preceded by equitable benefit sharing of environmental space.'
Kamal Nath, On behalf of the Government of India, COP 1, 1995
GCI and PlanB's Implementation Blueprint
Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action, Art. 3(1)(c), 5 December 2015:
(1)[Parties [collectively][cooperatively] aim to reach the global temperature goal referred to in Article 2 through ...
(e)[Equitable distribution of a global carbon budget based on historical responsibilities and [climate] justice]
UNFCCC Article 3(3)‘The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.’
Urgenda Foundation v. Government of the Netherlands, 2015, 4.79: The fact that the amount of the Dutch emissions is small compared to other countries does not affect the obligation to take precautionary measures in view of the State’s obligation to exercise care. After all, it has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of CO2 levels in the atmosphere and therefore to hazardous climate change. Emission reduction therefore concerns both a joint and individual responsibility of the signatories to the UN Climate Change Convention. In view of the fact that the Dutch emission reduction is determined by the State, it may not reject possible liability by stating that its contribution is minor, as also adjudicated mutatis mutandis in the Potash mines ruling of the Dutch Supreme Court (HR 23 September 1988, NJ 1989, 743). The rules given in that ruling also apply, by analogy, to the obligation to take precautionary measures in order to avert a danger which is also the subject of this case. Therefore, the court arrives at the opinion that the single circumstance that the Dutch emissions only constitute a minor contribution to global emissions does not alter the State’s obligation to exercise care towards third parties. Here too, the court takes into account that in view of a fair distribution the Netherlands, like the other Annex I countries, has taken the lead in taking mitigation measures and has therefore committed to a more than proportionte contribution to reduction. Moreover, it is beyond dispute that the Dutch per capita emissions are one of the highest in the world.
Example Blueprint Charts
All currently completed country charts are listedhere.
Intergovernmental Panel on Climate Change, 5th Assessment Report, 2014, Synthesis Report, p.64, table 2.2
Barker v Corus (UK) plc  UKHL 20advances the concept of 'proportionate liability': 'In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.' (per Lord Hoffman)
Sienkiewicz v Grief (2011), UK Supreme Court: Where disease is caused by the cumulative effect of the inhalation of dust, part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty has made a material contribution to the disease - Bonnington Castings Ltd v Wardlaw  AC 613. The disease in that case was pneumoconiosis. That disease is divisible. The severity of the disease depends upon the quantity of silica inhaled. The defendant did not, however, argue that, if held liable, this should only be to the extent that the dust for which it was responsible had contributed to the plaintiff’s symptoms. It was held liable for 100% of the disease. There have, however, been a series of cases at first instance and in the Court of Appeal in which it has been recognised that where there has been a number of exposures of a claimant to bodily insults that have cumulatively caused a divisible disease, responsibility should be apportioned so that an individual defendant is liable for no more than his share of the disease. This apportionment may necessarily be a rough and ready exercise: see Mustill J’s analysis in Thompson v Smiths Shiprepairers (North Shields) Ltd  QB 405 at pp 437-444 and the cases cited in McGregor on Damages, 18th ed (2010) at 8-010 to 8-016