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Communication, Education, Participation: Successful Ways to Climate Protection International Conference in Berlin, 29-­‐30 November 2012 Convened by the Independent Institute for Environmental Issues (UfU) Workshop II: Better Participation = More Climate Protection? -­‐-­‐Jennifer Gleason, Environmental Law Alliance Worldwide (ELAW) I was asked to review legal tools that included public participation and help determine whether public participation is leading to better climate protection. In our working group, I generally explained that I find public participation through law reform efforts and litigation is helping improve climate protection in tangible and intangible ways. In the United States, lawsuits filed by citizens have been helping to raise awareness of the impacts of climate change and help people understand that there are real impacts now and more impacts to come. Below is a summary of the information presented at the workshop; with some additional information I did not cover because we ran out of time, and information I thought might be of interest to people following our conversation. • U.S. -­‐-­‐ State and Local Regulatory Action Catalyzed by Public Participation As I described during the workshop, in the U.S., although the federal government has not enacted a federal law to address climate change, many states and local governments have been active and are adopting climate-­‐related laws and policies. . You can view some of the maps I showed, such as the map showing states with GHG emission targets and states that have adopted climate action plans, on the web page of the Center for Climate and Energy Solutions at: http://www.c2es.org/us-­‐states-­‐regions/policy-­‐maps/emissions-­‐targets U.S. citizens have used the ballot initiative process that is available in many states to advance climate protection. For example, in 2004, Colorado passed Amendment 37, creating a renewable portfolio standard (a quota system) for the electricity industry. The initiative created a 10% renewables standard that subsequently has been raised by the legislature. Washington followed two years later when citizens in that state put Initiative 937 on the ballot. The initiative required covered utilities to provide 15% of their electricity from renewable sources and to undertake all available cost-­‐
effective energy conservation measures. In other states, citizens have lobbied their legislatures to adopt new laws requiring utilities to add renewable energy sources to the grid. Most states now have a renewable portfolio standard or a goal. You can find a map displaying the targets on the website of the Database for State Incentives for Renewables and Efficiency at: http://dsireusa.org/documents/summarymaps/RPS_map.pdf Public participation is also critical for defeating bad legislative proposals. In November 2012, California had a measure on the ballot that would have stopped implementation of the state’s climate law that was adopted in 2006 until unemployment levels fell below 5.5% for four consecutive quarters. Thanks to citizen efforts to defeat the well-­‐funded initiative, it failed (61% to 39%). However, there are still looming threats to existing climate protection laws. In October 2012, the American Legislative Exchange Council (ALEC), a coalition of conservative legislators from all 50 U.S. states adopted the “Electricity Freedom Act” – an example of model legislation that would roll back state renewable energy mandates. Not only do citizens need to keep working to get more states to adopt renewable energy mandates, but they also have to stand ready to campaign against the reversal of existing mandates by groups such as ALEC. • U.S. Attitude Toward Climate Change Information about the actions U.S. states and local governments are taking to combat climate change led us to a discussion about the attitude of U.S. citizens. People in our discussion group were surprised to hear that, in my opinion, people in the U.S. are concerned about the climate. Following are excerpts and statistics from a study published by Yale University and George Mason University in September 2012, which support this view.1 Among other findings, the study concludes: A very large majority of Americans (92%) say the president and the Congress should make developing sources of clean energy a “very high” (31%), “high” (38%), or medium [sic] priority (23%). Few say it should be a low priority (8%). A majority of Americans (77%) say global warming should be a “very high” (18%), “high” (25%), or medium [sic] priority (34%) for the president and Congress. One in four (23%) say it should be a low priority.2 Six in ten Americans (61%) say the U.S. should reduce its own greenhouse gas emissions regardless of what other countries do. Relatively few (9%) say the U.S. should reduce its emissions only if other industrialized and/or developing countries do – and only 6 percent of Americans say the U.S. should not reduce its greenhouse gas emissions.3 1 Leiserowitz, A., Maibach, E., Roser-­‐Renouf, C., Feinberg, G., & Howe, P. (2012) Public support for climate and energy policies in September, 2012. Yale University and George Mason University. New Haven, CT: Yale Project on Climate Change Communication. “This report is based on findings from a nationally representative survey – Climate Change in the American Mind – conducted by the Yale Project on Climate Change Communication and the George Mason University Center for Climate Change Communication. Interview dates: August 31, 2012 – September 12, 2012. Interviews: 1,061 Adults (18+). Total average margin of error: +/-­‐ 3 percentage points at the 95% confidence level.” Available at: http://environment.yale.edu/climate/files/Policy-­‐Support-­‐September-­‐2012.pdf 2 Id. at pg. 6. 3 Id. at pg. 9. 2 In general, a large majority of Americans (88%) say the U.S. should make an effort to reduce global warming, even if it has economic costs.4 Americans say that corporations and industry (71%), citizens themselves (66%), the U.S. Congress (60%), and the President (53%) should be doing more to address global warming.5 You can access the full report at: http://environment.yale.edu/climate/files/Policy-­‐
Support-­‐September-­‐2012.pdf. • Court Cases Filed by Citizens Advance Climate Protection and Increase the Dialog In addition to leading efforts to achieve law reform, citizens are playing a very important role in shaping U.S. climate policy by filing lawsuits against government agencies and private corporations. Some cases have been successful and are bringing tangible changes to climate protection. But, as noted by others,6 even those cases that have been unsuccessful in court have nevertheless advanced the climate dialog and reduced the influence of climate deniers. The best example is the U.S. Supreme Court decision in Massachusetts v. EPA, 549 U.S. 497 (2007)7. (Although several U.S. state governments participated in the case, the plaintiffs also included many civil society organizations that laid much of the legal groundwork for the case.) Not only did this decision lead to concrete climate protection (the EPA promulgating GHG limits for new motor vehicles, and proposed limits for power plants), but the case gained widespread attention and helped advance the climate dialog in the United States. Although the Supreme Court was not asked to declare whether climate change is real and whether it is human caused, Justice Stevens, writing the opinion for the Court, began the opinion by stating: A well-­‐documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.” 4 Id. at pg. 10. 5 Id. at pg. 12. 6 See, for example, David B Hunter, The Implications of Climate Change Litigation: Litigation for International Environmental Law-­‐Making, W. Burns and H. Osofsky eds., ADJUDICATING CLIMATE CHANGE: STATE, NATIONAL AND INTERNATIONAL APPROACHES (Cambridge Press, 2009); Andrew Long, International Consensus and U.S. Climate Change Litigation, 33 Wm. & Mary Envtl. L. & Pol'y Rev. 177 (2008), http://scholarship.law.wm.edu/wmelpr/vol33/iss1/4. 7 Available at: http://www.supremecourt.gov/opinions/06pdf/05-­‐1120.pdf. 3 The Supreme Court found that the U.S. Environmental Protection Agency (EPA) had shirked its duties under the Clean Air Act in determining that it would not regulate GHG emissions because there was some scientific uncertainty about their contribution to climate change. The Court ordered the EPA to carry out its statutory duties and determine whether GHG emissions contribute to climate change. This decision lead the EPA to begin regulating GHG emissions under the Clean Air Act, a statute which includes a provision allowing citizens to sue the government or polluters for violating certain provisions of the Act (thus ensuring public participation will continue to play an important role in climate protection in the U.S.). This case advanced the climate dialog in important ways. As in other prominent cases, the claims made by the petitioners were reported in the media – that GHG emissions from motor vehicles were leading to tangible climate impacts that would impact many U.S. states, such as sea level rise, damages to natural ecosystems, reduced winter snowpack, and increase in the spread of disease. But in this case, the U.S. Supreme Court took those claims seriously and mandated the EPA study the issue and make sure it was fulfilling its regulatory responsibility under the Clean Air Act. Without specifically declaring that GHG emissions contribute to climate change, the majority opinion and statements made during oral arguments clearly demonstrate that the majority of the Court believes that credible scientists are saying there is a link between GHG emissions and climate change. This gives more weight to the human connection and further erodes the credibility of climate deniers. In fact, the Massachusetts v. EPA decision could be considered a watershed moment in climate protection in the U.S. Another good example is a case brought on behalf of the City of Kivalina and the Native Village of Kivalina, an Inupiat Eskimo community. “Kivalina is located on the tip of a six-­‐mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska, some seventy miles north of the Arctic Circle.”8 This case seeks damages from the biggest GHG emitters in the U.S. (ExxonMobil, Chevron, BP, Peabody, etc.) because climate change is destroying Kivalina. The community’s inhabitants, whose ancestors have lived there for generations, will be forced to relocate, which will cost millions. In addition, the case includes conspiracy charges against some of the polluters: There has been a long campaign by power, coal, and oil companies to mislead the public about the science of global warming. Defendants ExxonMobil, AEP, BP America Inc., Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern . . . participated in this campaign. Initially, the 8 Native Village of Kivalina v. ExxonMobile Corp., No. 4:08-­‐cv-­‐1138 SBA (N.D. Cal.), available at: http://www.climatelaw.org/cases/country/us/kivalina/Kivalina%20Complaint.pdf 4 campaign attempted to show that global warming was not occurring. Later, and continuing to the present, it attempts to demonstrate that global warming is good for the planet and its inhabitants or that even if there may be ill effects, there is not enough scientific certainty to warrant action.9 Media coverage of this important case has brought compelling images of the Kivalina barrier reef eroding into the sea out from under a community of U.S. citizens. It has helped ensure that the general public understands that climate change is having impacts today, not just in the distant future. It has also publicized a sympathetic community seeking damages from industry giants that have knowingly caused the problem. Finally, it brings to the dialog the allegation that some of these companies conspired to mislead the public about the impacts of GHG emissions so that they could keep emitting GHG and earning more money. This case was dismissed by a U.S. district court (but the decision is on appeal). Although the case has not (yet) been successful in court, it has advanced the climate change dialog in the United States and has brought much needed attention to the plight of communities that are being affected by climate change impacts. • Challenging Projects – Requiring Evaluation of Climate Change Impacts Citizens in many countries are challenging individual projects that will lead to further climate impacts. These administrative and judicial proceedings sometimes lead to cancelation of a particular project or at least a delay until the climate impacts are better understood and addressed. As with the law reform efforts mentioned above, even unsuccessful cases are moving the climate discussion forward. For example, civil society organizations in Australia have filed cases challenging new coal mines or expansions of existing mines. These cases have centered on the failure of the environmental impact analysis to include evaluation of the climate impacts of burning coal that will be extracted from the mines. In one such case, environmental groups challenged an amendment to the provisions of a local planning scheme that was necessary for the expansion of the Hazelwood coal mine in southeastern Australia. In the 2004 case, Australian Conservation Foundation v. Minister for Planning,10 the petitioners claimed that the environment effects statement (EES) should have included analysis of the impacts of carbon emissions when the coal is later burned.11 9 Id. at para. 189. 10 Australian Conservation Foundation v. Minister for Planning [2004] VCAT 2029, available at: http://www.austlii.edu.au/au/cases/vic/VCAT/2004/2029.html. 11 “The EES described and assessed the direct implications of the mining of coal on the emission of greenhouse gases; but it did not describe nor address the production of greenhouse gases by the burning of coal.” Id. 5 The terms of reference for the EES stated that “[t]he Panel is not to consider matters related to greenhouse gas emissions from the Hazelwood Power Station -­‐ these issues are being addressed through a separate process.”12 When concerns were raised about this with the Minister of Planning, the Minister dismissed them, stating: The Government is wholly committed to the general reduction of greenhouse gas emissions from coal-­‐fired power generation. The Minister for Energy Industries and Resources is addressing greenhouse gas issues specifically associated with the operation of the Hazelwood Power Station using any coal outside the existing mining licence boundary. The full development of the West Field beyond the existing licence boundary will be subject to an agreement being reached between Government and [Hazelwood]. As is publicly known the Minister's intention is that greenhouse gas emissions from the Power Station associated with any coal outside the existing licence boundary should be substantially reduced.13 Nevertheless, citizens continued to raise concerns over impacts from burning the coal in written submissions and at a hearing conducted by the Panel. The Panel later determined it could not consider these concerns. The citizens filed a petition with the Victorian Civil and Administrative Tribunal, which determined the Panel should have considered concerns about climate impacts from burning the coal after they were raised under the Planning and Environment Act 1987. The Tribunal found that the Panel must “provide a reasonable opportunity to be heard to any party who wishes to make a submission in relation to the environmental impacts of greenhouse gas emissions from the Hazelwood Power Station; and [must] consider those impacts in making its recommendations and report to the planning authority.”14 Even though the Panel ultimately approved the amendment after finally considering the GHG emissions from both the mine itself and the later coal combustion, the case is still important for connecting the impacts of GHG emissions from burning coal to the activity of mining the coal. In 2006, the New South Wales Land and Environment Court determined under another statute, that the impact of burning coal at a power plant should be studied as an indirect impact of coal mining. In Gray v. The Minister for Planning,15 petitioner Peter Gray challenged a decision by the Director-­‐General that the EIA prepared by the proponent of the proposed Anvil Mine was adequate. Gray asserted among other things that the EIA should have considered the impact to the climate of burning the mined coal at a coal-­‐fired power plant. 12 Id. at sec. 49. 13 Id. at sec. 13. 14 Id. at sec. 1. 15 Gray v The Minister for Planning and Ors [2006] NSWLEC 720, available at: http://www.lawlink.nsw.gov.au/lecjudgments%5C2006nswlec.nsf/2006nswlec.nsf/WebView2/DC4
DF619DE3B3F02CA257228001DE798?OpenDocument 6 The decision by Judge Pain, includes eloquent language: Environmental assessment is intended to enable decision makers to be properly informed about the future environmental consequences of the project before them. The environmental assessment is a prediction of what the impacts might be given that the project is yet to be built. It is not appropriate to limit the scope of the environmental assessment on the basis that GHG emissions may or may not be subject to regulation in the future whether in NSW or overseas. The fact that it is difficult to quantify an impact with precision does not mean it should not be done.16 I consider there is a sufficiently proximate link between the mining of a very substantial reserve of thermal coal in NSW, the only purpose of which is for use as fuel in power stations, and the emission of GHG which contribute to climate change/global warming, which is impacting now and likely to continue to do so on the Australian and consequently NSW environment, to require assessment of that GHG contribution of the coal when burnt in an environmental assessment.17 Climate change/global warming is widely recognised as a significant environmental impact to which there are many contributors worldwide but the extent of the change is not yet certain and is a matter of dispute. The fact there are many contributors globally does not mean the contribution from a single large source such as the Anvil Hill Project in the context of NSW should be ignored in the environmental assessment process.18 While the Court has a limited role in judicial review proceedings in that it is not to intrude on the merits of the administrative decision under challenge . . . it is apparent that there is a failure to take the principle of intergenerational equity into account by a requirement for a detailed GHG assessment in the EAR if the major component of GHG which results from the use of the coal . . . is not required to be assessed. That is a failure of a legal requirement to take into account the principle of intergenerational equity.19 These cases certainly advanced the dialog, highlighting the connection between coal mining and GHG emissions from burning the coal to produce energy and the importance of considering the impacts of each major new source of emissions -­‐ even though these individual sources are overshadowed by global GHG emissions. And finally, Judge Pain brings intergenerational equity into the discussion. 16 Id. at para. 138. 17 Id. at para. 100. 18 Id. at para. 98. 19 Id. at para 126. 7 • Transregional Transboundary Impacts Climate impacts are different than transboundary air and water pollution that has been addressed through litigation. Climate impacts implicate new geographic and temporal contexts. Citizens helped bring global attention to the transregional impact of climate change when they supported efforts by the Federated States of Micronesia to call for greater consideration of the plight of climate-­‐vulnerable nations that are being affected by GHG emissions occurring far from their borders. The Czech Republic was reviewing a proposal to modify the Prunerov II coal-­‐fired power plant. The Federated States of Micronesia intervened in the proceedings, claiming that it would be affected by increased carbon emissions from the facility, and requested the Czech Ministry of the Environment to initiate a study of the transboundary environmental impacts as required by the Czech Republic’s Act on Environmental Impact Assessment. The Ministry ultimately approved the EIA for the project. However, this is the first instance I know of where a party successfully invoked the transboundary impact provisions of a domestic EIA law to force a broader evaluation of transregional impacts. In addition, civil society organizations that supported the Federated States of Micronesia20 report that the Czech government required CEZ, the Czech power company building the power plant to agree to a compensation plan – reducing emissions at other plants to off-­‐set the emissions from Prunerov II.21 • Green Tribunals Environmental courts, known as Green Tribunals, offer citizens another forum for filing legal complaints that could lead to better climate protection and help advance the climate dialog. The issues that Green Tribunals have the authority to address and the procedures they follow vary by country. Therefore the petitions that citizens can file will depend on the rules governing the particular tribunal. Some allow citizens to file petitions seeking review of government decisions while others allow citizens to seek compensation for past environmental harm. In India, citizens have been petitioning the newly formed National Green Tribunal to review government decisions approving projects that would further harm the climate. Two recent cases offer good examples of what citizens can accomplish: 20 Environmental Law Service/Ekologický právní servis, Greenpeace Czech Republic, and homutov pod pokličkou ČEZ. 21 See, http://prunerov.cz/en/press/threatened-­‐pacific-­‐island-­‐nation-­‐makes-­‐legal-­‐history-­‐by-­‐
challenging-­‐european-­‐carbon-­‐emitter-­‐141 8 In, T. Mohana Rao v. Ministry of Environment & Forests,22 citizens filed a petition with the Tribunal challenging the approval of a coal-­‐fired power plant with a combined installed capacity of 2640 MW in Andhra Pradesh. These citizens attempted to participate in the environmental clearance process but complained they did not have access to any part of the EIA before a public hearing. In May 2012, the Tribunal agreed with the citizens, and issued a decision in which it explained “the informations about the project and particulars about the EIA report were not made available to anyone in the public till the time of the public hearing. . . . Unless it is made available, it is not possible for any member of the affected public to have access to such informations. It is imperative for the affected persons to be fully informed of the proposal (the EIA / EMP Report) submitted by the project proponent for dealing with the environmental damage that are likely to be caused if the project is granted clearance.”23 The Tribunal then ordered the Ministry to provide the public with relevant information and another opportunity to express their views on the proposed project , and declared that the Environmental Clearance would be void until the Ministry complied with the Tribunal’s order. Also in May of this year, responding to another petition filed by citizens, the Tribunal suspended the environmental clearance granted for a 3600 MW coal-­‐fired power plant in Tamil Nadu. In T. Murugandam and Ors v. Union of India, the Tribunal found the environmental assessment was not adequate because it did not include a cumulative impacts analysis and did not respond to concerns raised by the public, including concerns about air pollution.24 • Human Rights Legal Actions In December 2005, Sheila Watt-­‐Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Council, on her own behalf and on behalf of other Inuit, petitioned the Inter-­‐American Commission on Human Rights (IACHR) claiming “human rights violations resulting from the impacts of global warming and climate change caused by acts and omissions of the United States.”25 Although the IACHR rejected the petition in 2006, it held a thematic hearing in 2007 to hear testimony related to climate change and human rights. The petition advanced the dialog at the IACHR, but it also publicized stories about the impacts of climate change on human rights and the responsibility of the U.S. government. • Creative New Initiatives 22 T. Mohana Rao v. Ministry of Environment & Forests, Appeal No. 23/2011 (National Green Tribunal, New Delhi) (23 May 2012), available at: http://indiankanoon.org/doc/84438947/ 23 Id. 24 T. Murugandam and Ors v. Union of India, Appeal No. 17/2011 (National Green Tribunal, New Delhi) (23.05.2012), available at: http://www.greentribunal.in/orderinpdf/17-­‐
2011(T)_23May2012_final_order.pdf. 25 The Inuit petition is available at: http://www.inuitcircumpolar.com/files/uploads/icc-­‐
files/FINALPetitionICC.pdf. 9 In order to address climate change, we need to get creative. Here are examples of a few creative legal efforts lead by citizens: In Argentina, an impact of climate change is shrinking glaciers and associated water storage. Civil society in Argentina saw the potential of this serious problem and pushed its government to adopt a law to protect glaciers. The world’s first glacier law, Ley Nacional de Presupuestos Mínimos para la Protección de Glaciares (Ley 26.639)26 was adopted on September 30, 2010. Among other things, the law limits mining and oil exploration near glaciers to protect the important source of water. Citizens also got creative with an international effort – submitting several petitions with the World Heritage Committee requesting the following sites be declared in danger due to climate change: • Sagarmatha National Park in Nepal, • Huascaran National Park in Peru, • Belize’s Barrier Reef Reserve System, • The Great Barrier Reef in Australia, and • Waterton-­‐Glacier International Peace Park in the U.S. and Canada. This effort was only the second time citizens used a citizen petition process of the World Heritage Committee. Although the Committee did not ultimately add these sites to the List of World Heritage in danger (a process controlled by the UNESCO World Heritage Convention), the Committee did recognize the threat climate change poses to World Heritage Sites and put together a group of experts to study the issue. After reviewing reports prepared by an expert group, the Committee adopted a “strategy to assist States Parties to implement appropriate management responses.”27 The citizen petitions moved the World Heritage Committee forward on climate protection and captured the attention of international media with stories about the threats to Mount Everest and other globally-­‐important environmental sites from climate change. • Involving Youth and Telling Stories Another creative legal initiative is a collaborative effort between a group of young people that wanted to take action to protect the climate,28 a group of lawyers who had a novel legal theory, 29 and a group of filmmakers who know how to tell a good story.30 As explained at the workshop, the public trust doctrine is a legal principle that holds the government accountable for managing natural resources in trust for 26 Ley Nacional de Presupuestos Mínimos para la Protección de Glaciares (Ley 26.639) (Sept. 2010). For more information about the law, including access to the copy of the law, go to: http://wp.cedha.net/?page_id=1345. 27 See, UNESCO website: http://whc.unesco.org/en/climatechange/. 28 iMatter Youth Council, http://www.imatteryouth.org/. 29 Our Children’s Trust, http://ourchildrenstrust.org. 30 WITNESS, http://witness.org/ 10 the people. This legal initiative is asserting that the public trust doctrine imposes a duty on the government to protect the atmosphere. The shorthand reference to this initiative and legal theory is “Atmospheric Trust.” Petitions have been filed in many U.S. states asking courts to enforce the Atmospheric Trust and to direct state governments to take action to mitigate climate change. I encourage everyone to watch some of the Atmospheric Trust films found at: http://ourchildrenstrust.org/trust-­‐films. The film we tried to watch together was “TRUST Colorado” because I thought you would all like to see the involved youth at the end of the film. Another film you might enjoy because it touches on many of the things we discussed is “TRUST Massachusetts.” I’ve watched about half the films and enjoyed them all. And, because many of you are working with youth, I encourage you to visit the website of the young people involved in many of the Atmospheric Trust cases: http://www.imatteryouth.org/. You cannot help but be inspired by the activities they are undertaking. • The Public Includes People Working with Polluting Corporations A final observation, which we discussed during the workshop, is that not all members of the public that participate in legal initiatives related to the climate are interested in protecting the climate. A recent article by Michael Gerrard, a Columbia law professor who tracks climate litigation, noted the increasing number of climate-­‐related court cases in the U.S. – while only one climate case was filed in 2003, 100 were filed in 2010. He also noted that from 2003-­‐2009 (during the Bush administration), most cases were brought by environmental groups trying to force the government to regulate GHG emissions and challenging specific GHG emitting projects. According to Gerrard, since President Obama took office in January 2009, there has been a ‘surge’ in cases filed by industry representatives opposing GHG regulation. My brief presentation was not intended as an overview of cases that have been filed, but only a reflection on the role of litigation as a public participation avenue that I believe is advancing climate protection, even when the cases fail in court. Finally, I promised to send links to databases of climate litigation for you to find these cases and many others: The Center for Climate Change Law of Columbia Law School31 maintains several impressive databases including: The U.S. Climate Litigation Chart, the Non U.S. Climate Change Litigation Chart, and the Energy Facility Litigation Database. These 31 http://web.law.columbia.edu/climate-­‐change 11 and other interesting databases can be found at: http://web.law.columbia.edu/climate-­‐change/resources#litigation-­‐charts My own organization, ELAW, collaborates with the Climate Justice Programme to host another database of cases from around the world, which can be accessed at: http://www.climatelaw.org Thank you for the informative workshop and interesting discussions! 12