Climate Law in Action
A few weeks ago there was a meeting on Climate change and the rule of law including a lecture by Professor Philippe Sands, in which he said that “the single most important thing [the Court] could do is to settle the scientific dispute” and that the courts could play a role in “scotching” challenges to the consensus. These remarks seem to have been unchallenged by the echo chamber that he was addressing, but provoked considerable discussion and questions elsewhere. There were two detailed responses by people with relevant legal credentials, first from Robin Guenier (discussion here) and then a paper by Lucas Bergkamp (discussed here); there were blog posts at Bishop Hill and WUWT, and several newspaper articles.
Curiously, Sands himself and Lord Carnwath, who set up the conference and introduced Sands, seemed to have no interest in discussing or debating the issue – Sands gave only a one-line response to Guenier, and comments were disabled on the youtube video of Sands’s talk. As Donna Laframboise noted in an article Supreme Court Justice Carnwath: Climate Activist, “That word debate. It means something rather different to climate activists than to normal people.”
So I was interested to see that last week’s BBC Radio 4 Programme Law in Action interviewed Lord Carnwath, since this appears to be the first actual debate on the issue. Here’s a transcript:
BBC Radio 4, Law in Action, 3 Nov 2015
Joshua Rozenberg: First though, a senior judge who found himself accused in the press of trying to close down the argument on whether man-made global warming was responsible for climate change. I should say immediately that Lord Carnwath, who’s a justice of the United Kingdom Supreme Court, said nothing of the sort – one of the newspapers concerned has now published a correction. But this does raise the question of how far judges can get involved in matters of scientific debate.
Earlier this year a district court in the Netherlands ruled that the Dutch Govenment was not doing enough to reduce greenhouse gas emissions. Ministers in The Hague accepted the need to limit temperature rises, but they said they were under no legal obligation to reduce emissions to a particular level. The case is now under appeal with the Dutch Government arguing that this is not a matter for the courts.
But might we see a similar case here, or is climate change policy purely a matter for the politicians? That was the first question I put to Lord Carnwath.
Lord Carnwath: As far as this country is concerned, in a way the issues have to a large extent been taken out of politics because we have a Climate Change Act, 2008, which is based on the premise that climate change is a real challenge and that the Government is committed to playing its part in doing something about it. So although cases are coming before the court I don’t think they’re likely to come in that very direct way that it came in the Dutch case.
JR: The Climate Change Act imposes a duty on the secretary of state to ensure that net emissions of greenhouse gases are 34% lower in 2020 than they were in 1990 and 90% lower by the time we get to 2050. Is that a duty that the courts might enforce?
LC: It’s already come up in a case that I had, which was about the plans of the last Labour Government for a third runway at Heathrow. They had undertaken that policy before they introduced the Climate Change Act 2008, and a complaint that was made by a coalition of authorities and action groups was that they hadn’t really revised their runway policy to accord with the Climate Change Act of 2008 and the court, via me, held that there was an inconsistency and the Government really needed to bring the two together, and they in fact undertook to do a new policy statement which took on board the Climate Change Act. So that shows how climate change issues come in sort of indirectly in litigation without actually raising the central issue of what is the reality of climate change, and what is the threat.
JR: Lord Carnwath recently introduced a lecture which was delivered in the Supreme Court by Professor Philippe Sands QC, the well known international lawyer. He argued that the International Court of Justice, the United Nations court, should “settle the scientific dispute” over whether global warming was man-made. Philippe Sands suggested that the Court could give an advisory opinion, confirming that states were now under an obligation in international law to reduce greenhouse gas emissions, in line with the UN target reduction of 2 degrees celsius.
Philippe Sands: “In our world, amidst the warming of the atmosphere, and the melting of the ice, and the rising of the seas, let us hope that international courts will not be silent. Thank you very much” (applause).
JR: I asked Lord Carnwath to pass judgement on Professor Sands.
LC: Well I think he was putting that as a point for discussion. But you’ve got to remember that as far as I know in none of the cases that have come before the courts so far has anyone actually challenged the basic consensus, I mean the 2 degree target for emissions has been adopted by our Government, it’s been adopted by the parties to the framework convention as the basis for their negotiations in Paris, and as far as I know no-one has yet in a court made any real attempt to challenge it, so whether anyone would do in the International Court of course one would have to wait and see. And if they did, then the International Court would have to grapple with it.
JR: I can’t see that happening in myself. But I’m much more interested in the question of whether our own judges should be getting involved in issues that some people would regard as highly political. Nearly three years ago Lord Carnwath was appointed by the United Nations Environment Program to its International Advisory Council. He played a prominent part in a conference at Kings College London in September, which led to those media claims that the judges were trying to close down debate on man-made global warming. That was a complete misunderstanding, Lord Carnwath told me.
LC: The task of the judges is to decide the cases that come in front of us, but the point of the conference was to highlight the fact that we are already faced with cases which raise difficult issues in relation to climate change, and it’s going to happen increasingly in the future. And secondly to look at the framework of the Paris convention which is intended to produce an agreement having legal force and try and see what that might mean in practice, so I think that’s entirely within the proper remit of judges and I don’t make any apology for doing it.
JR: I don’t think you’ve expressed your own views on the science, but do you think your association with this subject means that if a case involving environmental law were to come before the Supreme Court, a party might ask you to recuse yourself, to stand down and not sit?
I find it very difficult to see why that would happen, I mean I’ve been associated with all sorts of things in connection with planning, the environment, judicial review, human rights and so on, and I’ve given lectures on these subjects, and no-one has ever suggested that that recuses me, obviously one has to be careful about how one approaches these subjects but I’ve certainly not had any problem yet and I don’t at the moment anticipate a problem in the future.
JR: Lord Carnwath of the Supreme Court.
So what have we learnt?
Firstly, it is encouraging that a BBC interviewer does seem to be concerned by the idea of judges meddling with politics related to scientific issues. I was amused by the bit where Joshua Rozenberg asks Lord Carnwath to ‘pass judgement’ on Sands – I wonder if this was intentionally ironic. Similarly I detect a touch of sarcasm in his voice when he says that Carnwath told him it was a complete misunderstanding to think that Sands was trying to close down the debate.
Secondly, Carnwath ducks the question about Sands, changing the subject after merely saying that it was intended as a point for discussion. This does not appear to be true, since neither Carnwath nor Sands show any interest in discussing it, and Sands’s remarks about settling the scientific dispute were presented in a dogmatic authoritarian way, not floated as a point for discussion.
Thirdly, Carnwath has intervened directly in politics previously, in the case of the Labour Government policy on Heathrow, and thinks that this kind of thing is fine and makes no apology for it.
What I find most troubling about the conversation, if you will are the words “international law.” Since I am a believer in national sovereignty, I take offense at the idea that a group of any people can get together at some party and create “international law” by which every nation is bound.
It is my hope that there will be a group of intelligent national leaders that say “sorry, but this is not a law my nation abides by.” And if those nations are “booted out” from doing business, if you will, with the losers that do sign on, they will become the future hopes of humanity, for those that sign on to this travesty of justice called climate crisis mitigation are doomed to become the next group of 4th world nations, looking for hand outs from 3rd world nations who will not progress. but since there will be NO 1st world nations – they will have become the 4th world nations – they will see they their influence and “stock” rise, but they still will be stuck in poverty.
International law, if it should exist, is like the intent of the United Nations – to act in an advisory status between sovereign nations that are experiencing dispute. It holds no specific power over any sovereign nation, nor should it ever. We do NOT need a world government, and without a world government, international law has no meaning.
I don’t think the observation you make at the end that Lord C intervened in politics and saw nothing wrong with that is fair. It isn’t so much that he intervened in politics as that the law, in the shape of the Climate Change Act, meant that he was placed in a position where he had to make a decision in an area widely viewed as being highly political. He happened to be the judge but I doubt whether any judge, whatever his view on climate change, would have come to a different decision.
Not so long ago Government Ministers used to be advised not to put targets in legislation. The reasons are obvious; first, it may be more difficult to implement your plans than you expect and secondly events may throw them off course. Depending on your viewpoint the inclusion of targets in the CCA can either be seen as the Government bravely putting its money where its mouth was or very unwise. If the targets are not met that will give rise to the possibility of judicial proceedings. However the form they might take is unclear to me. I don’t think aunt Maisie could sue successfully on the ground that failure to meet the target had caused her house to be flooded because causality would be impossible to prove. On the other hand a mere declaration by the courts would serve little purpose. Also it seems unlikely that the courts would want to get involved in telling the Government what specific steps it had to take to reduce emissions.
In reply to TOM O I’m afraid that ship has already sailed in part. Directly or indirectly the Government is bound by the decisions of the EU’s European Court of Justice and the European Court of Human Rights. I agree with many that the latter has been stretching its remit in unjustified ways in recent years. The problem with courts is that they are unaccountable- because of the need for judicial independence- and have an inbuilt tendency to stretch their jurisdictions. In the end this undermines democracy. I agree then that it would be highly undesirable for the International Court of Justice to take on a similar status in the way Phillipe Sands clearly wishes.
Paul – I used the term “sovereign nation,” I didn’t use the term “state” as in part of a union. Sovereign nations are bound by their own laws, not “international laws” or even Union laws.” Sovereign nations should respect the laws of other nations but are not bound by them.
Tom, yes, I share your puzzlement. Similarly, if the COP21 agreement, if there is one, is “legally binding”, what does that really mean? If a country breaks it, what is the penalty? How much is the fine and who does the money go to?
Kestrel, I see what you mean but I still think he is abusing the law to promote his political opinion. The CCA does not imply that we can’t build a new runway (it could be argued that the target can be met by reductions elsewhere). Where could this end? Could Carnwath use the CCA to force through any windfarm application?
Interesting development reported at WUWT
Monckton has sent some questions under FOI regarding the Climate Courts event, in his usual style, and got some not very informative replies.
I think Donna L tried to ask some questions previously, with similar results.
BBC’s Joshua Rozenberg: “Lord Carnwath.., said nothing of the sort – one of the newspapers concerned has now published a correction.”
What this CORRECTION from the Telegraph ?: “When this article was first posted it mistakenly stated that judges planned to outlaw climate change denial. In fact, the proposal to have a test case raised at the International Court of Justice was made by the QC Philippe Sands, though that Court would have no power to curb freedom of speech. We are happy to make this clear.”
So it was his best pal a QC who made the suggestion, rather than Lord Carnwath himself.
BTW in Donna’s next article “The Unseemly Lord Carnwath” partly she accuses LC of guilt by association. This is a bit much cos in many countries there is a form of corruption in that top people have “to play the game”,,so in having conferences with these countries of course anyone is come across these people.
Paul, I for one, remain far from convinced that this particular tree upon which Monckton has chosen to embark is likely to yield any significant “victory”. As far as I have been able to determine, the U.K. Supreme Court was not even in session during this particular performance.
In my view, at best, it was very shoddy of the actual organizers to gloss-up part of their conference by using this particular venue (regardless of cost and generous absorber(s) of same).
That there are transcripts and/or videos available on the SC site might be somewhat more worrying; however, my guess would be that they landed there primarily by virtue of incompetent – and far lower level – clerical error, rather than by any planned high-level “design”.
To my mind, of far greater interest is the turnover in talent at the U.K. SC since its inception circa 2009. It would certainly be interesting to know why so many appointees in the intervening years no longer hold their respective positions, don’t you think?!