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Law in a changing climate

On Monday 21st November, we were delighted to welcome our panels of speakers from the legal profession, who spoke about the challenges and opportunities climate change presents, how lawyers are addressing these issues, and personal reflections on their own careers and advice for those wishing to enter environmental law.

• Stephen Hockman QC, Head of Chambers at Six Pump Court and Director of the International Court for the Environment Coalition
• Gita Parihar, Head of Legal at Friends of the Earth
• Michael Hutchinson, Partner and Head of the Environment Group at Mayer Brown

The extent of the climate change problem that the world now faces was presented in stark terms. It was described as ‘multifaceted’ and an issue requiring a complete overhaul of the economic system and the society in which we live, in a quickly vanishing time scale. All three speakers stressed the importance of not just viewing climate change as a scientific problem, but as Stephen termed a ‘politico-legal problem’ – an issue of justice, rights and the distribution of resources. And it is these dimensions of climate change that are most unsuited to our current institutions and decision-making framework – one that is short-termist and engrossed in economic performance.

Examples of this conflict between long-term and immediate impacts were given by Gita. Friends of the Earth are currently carrying out a judicial review challenge on the Government’s decisions to scrap solar subsidies before the consultation period has ended. Not only is this potentially unlawful, it is also denying communities the right to have access to renewable technologies. Gita is also currently working on the upcoming climate change negotiations that are taking place in Durban this year, and once again, economic concerns seem to be taking priority over environmental justice and climate change action. Hopes for a legally binding treaty to replace the greatly criticised Kyoto protocol are diminishing by the day.

However, Michael was keen to point out that a lot of work is currently being done under such existing frameworks, which is having a positive impact. For instance, international law firms, such as Mayer Brown, are responsible for helping to implement the EU Emissions Trading Scheme and Clean Development Mechanism, by determining the ownership of carbon credits. A lot of work is also being done on the UK’s Carbon Reduction Commitment (CRC) in helping firms meet energy efficiency performance targets, and also in encouraging investment (particularly from Asian markets) in renewable technologies in order to meet the targets set by the Renewable Energy Directive. These pieces of litigation, along with the Climate Change Act 2008, are unlikely to succeed unless enforceable legal requirements are introduced.

The current inadequacy of institutions to meet the challenge of climate change was addressed by our speakers, who proposed a variety of future changes. Stephen is currently working on developing an International Court for the Environment, which would consist of a body of jurists and scientists who could pass judgment on the way in which we are failing to achieve climate justice and change public opinion. Whilst Gita spoke about how the world can incorporate principles of sustainable development and intergenerational justice by introducing an Ombudsman for Future Generations, just like Hungary.

In terms of a career in environmental law, each of our speakers described the variety and interest they enjoy in their day to day work and how much it has grown and will continue to grow in the coming years. Michael predicted that by 2020, an elite group of international firms will dominate the legal profession, one which will be tending more and more towards Asia, and catering for more niche issues, including climate change. Stephen spoke about the need to develop jurisprudence in this area, to impart clarity in an otherwise uncertain world. Such a dynamic and competitive area requires graduates to have an openness to the multifaceted nature of environmental issues, a willingness to embrace new innovations, and to possess optimism and resilience.

Corporate Change Makers

On Monday 7th November, the Cambridge Zero Carbon Society held its first Careers Showcase for a Low Carbon Economy. Over forty-five students came to hear our speakers talk about the opportunities and challenges climate change presents to business.

Jonathan Grant – climate change and carbon markets specialist at PwC
Ruth Findlay Brooks – Senior Advisor, Sustainability Leadership, University of Cambridge Programme for Sustainability leadership
Hugh Parnell – Director at NW Brown Group

From left to right: Jonathan Grant, Hugh Parnell, Ruth Findlay Brooks

We’re not there yet

According to PwC’s annual Low Carbon Economy Index, the global economy’s carbon intensity increased for the first time since 2004, with the UK performing particularly badly. Slow action has cost us – we will need to reduce carbon intensity by 4.8% each year between now and 2050, which is faster than any country has achieved over an entire decade. To put us on a more sustainable trajectory, we need a revolutionary change in the way we use and produce energy. We need a transformation in the traditional business model and a move away from the short-termist thinking that dominates the current business and political decision-making. We need to remove the power from those barring the way to action and impart more certainty within the investment market. We need to change behaviour and reverse consumerist habits. Ultimately, we need to start taking responsibility for climate change.

The business case

The role of business is crucial in the transition to a low carbon economy, and in many cases, firms are leading the way, ahead of governments and individuals. Views of what motivated businesses to act differed between the panel members. Ruth, through her work with business leaders, has found that leadership on climate change is important for recruitment and retention, as graduates are increasingly pushing the sustainability agenda. Jonathan spoke about the co-benefits of low carbon generation and how businesses are responding to new opportunities and risks, especially within the carbon market. Hugh argued that business sustainability is what ultimately motivates the private sector and their continual drive for innovation and the search for the next generation of thinking.

Sustainable leadership

What are the leadership qualities that are required in the low carbon economy? All speakers emphasised the value of innovation and creativity, along with more traditional skills including the ability to build and maintain relationships, deal with stressful situations, work in a team, have high standards of communication and project management, and technical competence. Opportunities within the low carbon economy are increasing rapidly, amongst both small and large firms. The sustainability and climate change team within PwC has almost trebled in four years, whilst there are more than 450 innovative clean tech firms around Cambridge. The opportunities are out there, so seize them and make a positive difference.

We will be posting a podcast of the evening online soon.

Our next Careers Showcase will be looking at the role of law and the legal profession in the low carbon economy: Monday 21 November, 7.30pm, Trinity Hall Lecture Theatre.

Should people offset their carbon footprints?

Carbon offsetting is something we read about a lot these days. It is a complex area and it can be difficult to work out the right way forward. With an increasing amount of people concerned about their environmental impact, buying carbon offsets is one way to go.

What is carbon offsetting?
Carbon offsetting is a growing industry. Companies set up projects that either reduce emissions (by building renewable energy plants, for example), or absorb greenhouse gases from the atmosphere (by planting or protecting forests). Legal considerations connected to the Kyoto Protocol mean that projects should always be in developing countries.
The list of carbon offset buyers is dominated by private companies, but public sector organisations and charities are cropping up more often. Individuals make up less than 2% of the total.

Why do people buy carbon offsets?
People buy carbon offsets to counteract parts of their carbon footprint that they can not avoid. The motivations for doing so are usually to take responsibility for emissions that are a necessary part of their lives.
Friends of the Earth calls carbon offsetting a ‘dangerous distraction’ because it can lead people into thinking that they don’t need to reduce their carbon footprint – it’s ok to pollute just so long as you pay a small amount to offset it.
More often than not, however, the people who want to offset are also the ones making an effort to reduce their carbon footprint.

Projects that reduce emissions in the developing world are usually well intended, but there are risks. In particular, there is a risk that a project would have gone ahead without the money provided by offsets—meaning that the offsets have no real impact.
A Friends of the Earth report into the industry reveals that offset projects do not deliver credible environmental benefits, stating “There are strong concerns over the environmental credibility of many of the credits and the contribution of the projects to sustainable development.”
Few organisations have the necessary time to do the required due diligence on projects, meaning that some organisations damage their reputation by inadvertently choosing the wrong project.

A new way of offsetting
Retiring credits from the EU Emissions Trading Scheme is one way of overcoming these pitfalls.
This new method of carbon offsetting works by buying and cancelling (‘retiring’) ‘permits to pollute’ from the EU Emissions Trading Scheme. Industrial companies that would have bought the permits instead have to reduce their emissions. It is a simple, effective way to offset and it reduces emissions within Europe, where emissions per person are high.
Retirement is gaining support from all areas – even hard-line environmental commentators previous sceptical of offsetting. John Grant, author of The Green Marketing Manifesto, described Carbon Retirement, the first company to offer this service, as “the world’s first truly ethical offsetting scheme.”

Top tips
If you are thinking of buying carbon offsets, read our three point guide.

1. Be able to satisfy yourself that offsetting is not distracting from your efforts to reduce your emissions. You ought to try as hard as you can to choose the green option – and then offset what you cannot avoid.
2. Question whether the project really needs your financial support. If it can stand alone, you could probably spend your money better elsewhere. Or consider a non-project based approach such as Carbon Retirement, which forces emissions reductions from European heavy industry.
3. Look for suppliers that can explain which standard was used to verify the credits. There are many standards available but the most stringent are the Quality Assurance Scheme and WWF’s Gold Standard.

    Jane Burston is a director at Carbon Retirement

    Insights from the National Trust

    I always knew there was a lot to be learnt from the National Trust. As the largest conservation charity in Europe and the second largest membership organisation in the UK, it has to be doing something right. However, during my summer internship I saw a side to the Trust I hadn’t seen before, and it made me realise just how much it has to offer.

    The Trust’s purpose is a simple one: to look after special places for the benefit of the nation, for ever, for everyone. But it is how it goes about it that I find really inspiring.

    Anglesey Abbey

    ‘For the benefit of the nation’ is not an empty statement. It has a variety of policies which focus on the importance of community engagement, supporting and promoting the diversity of local communities, and reflecting our shared multicultural heritage. I was lucky enough to see such policies in action being based at Anglesey Abbey, an innovative and lively property esteemed for its pioneering community work. Here the National Trust involves groups from mental health patients and troubled children from the Croft Child and Family Unit, to long-term unemployed young people, to people on training programmes with learning difficulties, in conservation work as a way of providing mutual benefits. By combining the therapeutic benefits of nature and the outdoors with practical conservation, the Trust is developing innovative ways of carrying out its vital conservation work which are relevant to the present day, while remaining true to the core values and beliefs of its founders:

    “The need of quiet, the need of air, the need of exercise, and..the sight of sky and of things growing seem human needs, common to all men” – Octavia Hill

    The National Trust, very much seeing its places as assets of ‘the nation’, also tries to involve people in its decisions wherever it can. Having witnessed the preparation and opening of the domestic wing at Anglesey Abbey, this is yet another area I have seen in practice. Here the public are being consulted on how they would like the rooms to be presented to them, in what time period and which part of the Abbey’s story they would like to see depicted through the rooms. By engaging the public in this way the Trust is able to give people a sense of ownership and involvement, making its work feel relevant to them, which is all part of its vision of everyone feeling like a member by 2020.

    And it doesn’t stop there. What with its Green Energy Fund, 2020 energy targets and its ‘going local’ strategy, the Trust is linking up with related causes which are a broader expression of its values and objectives. Properties are being given more freedom to develop their individuality to focus on their place-specific stories, surroundings and culture, for example through their restaurant menus or shop stock. At Anglesey Abbey they now have signage produced by local arts groups, stock local produce in their shop and even use rabbits shot onsite in dishes in the restaurant! Many properties are also growing their own fruit and vegetables to sell and use in their restaurants, and the East of England regional office is fuelled by wood chips sourced from its neighbouring Ickworth property.

    These approaches can be applied almost anywhere, including the campaign on climate change. To engage people in a cause they must feel it is relevant to them, that they have a stake in the outcome and that there is a genuine desire to involve them. Community action, providing wider benefits and connecting with other related causes are all great ways to reach out and engage different people.

    The perception of the National Trust as old-fashioned and elitist couldn’t be further from the truth. Its changing image, strategies and innovations are all helping to break down this perception, and as a small part of these changes, being a National Trust Student Ambassador, I’m looking forward to engaging more students in the exciting things happening at National Trust places in Cambridge!

    For more information on how to get involved with the National Trust as a student contact Alexandra on

    Environmental Ambition

    Ask a young person what their vision for a green future is and no doubt they will talk about wind turbines, recycling and public transport. Then ask a young person what they envisage their role to be in that future, and unless they’re aspiring renewable technology engineers or waste managers, they will most likely draw a blank.

    And this is where things need to change. If we are to reduce our carbon emission enough to avoid catastrophic climate change, and if we are to achieve energy security and affordability, and if we are to use our natural resources more sustainably, our whole economy needs to be green. It will be the 21st century’s version of the Industrial Revolution, but this time we have even more at stake.

    Young people can’t feign ignorance at such messages, as they’ve been shouted about for long enough. My generation are certainly environmentally aware, and more often than not, are at least concerned about the issues, but so far we have failed to instil environmental ambition in them.

    “In the future, every job will be a green job, contributing to varying degrees to continuous improvement of resource efficiency” – European Union, 2010

    Sustainability is playing an increasingly important part in all business sectors, and is becoming the new business as usual. Sixty per cent of companies increased their sustainability spending in 2010, despite the downturn (Sustainability: The ‘Embracers’ Seize Advantage). The global low carbon market was worth more than £3.2 trillion in 2009/10 and is projected to reach £4 trillion by 2015 (Enabling the Transition to a Green Economy).

    However, businesses are currently being held back by a shortage of workers with the necessary skills and knowledge to further their low carbon ambitions. In the Leadership Skills for a Sustainable Economy report, 70% of respondents agreed that the gap in sustainability skills will become one of the most pressing challenges facing UK businesses in the next five years.

    Future business leaders, lawyers, engineers, bankers, accountants, advertisers and every other graduate needs to be informed, inspired and prepared for the Green Revolution. The University of Exeter Business School have recently launched the One Planet MBA, in partnership with WWF, and are training ‘planet-minded business leaders’. It would be a mistake to think such courses are solely for the green-hearted hippies. They are simply the smart ones, who are putting themselves ahead of the competition and discovering a professionally and personally rewarding future.

    The Green Paradox: Programme for an Illusion-Free Climate Policy

    Hans-Werner Sinn (2008), Das grüne Paradoxon: Plädoyer für eine issusionsfreie Klimapolitik (The Green Paradox: Programme for an Illusion-Free Climate Policy), Berlin: Econ

    Reviewed by Ray Galvin

    Cambridge University

    Most of the literature on climate change mitigation explores what can broadly be termed ‘demand-side’ solutions. These aim to reduce global demand for fossil fuels by improving energy efficiency, generating renewable energy, or changing consumerbehaviour. It is assumed that each tonne of CO2-equivalent (CO2e) saved through such means will follow through into a tonne less CO2e emitted worldwide, and that even if only a minority of countries reduce their CO2e emissions, or even if yours is the only country to do so, this will make a difference to climate change. Every little bit helps.

    Hans-Werner Sinn is one of a small number of academics who disagree. The only way to guarantee a reduction in CO2e emissions from fossil fuels, he argues, is to proactively keep them in the ground, or at least drastically reduce their extraction rate.Since by far the major portion of global CO2e emissions comes from the burning of fossil fuels, restricting their supply – the amount that can be extracted – should be the focus of our climate change mitigation endeavours.

    Sinn has strong credentials as one of Germany`s leading economists. Professor of economics at Munich`s LMU and President of the German Institue for Economic Research, his contributions have covered topics such as the theory of economic risk, business cycle theory, and the efficient allocation of economic resources. Though speaking from a broadly orthodox basis, he parts company with both mainstream and radical-green thinkers on the key question of what is useful and what is a hindrance to genuine climate change mitigation.

    The core of Sinn`s argument for supply-side climate change mitigation was presented in English, in heavily mathematical form, in International Tax and Public Finance1.A sketchy account may be found in his speech to the 8th Munich Economic Summit, Climate and Energy: Right Goals, Wrong Approach?2 But it is in this 470 page book, Das grüne Paradoxon (The Green Paradox) that the details of his argument are fleshed out and expressed in language that non-economists can easily follow.

    There are three main pillars to Sinn´s argument. The first concerns the psychology and business economics of ownership of fossil fuel resources; the second the business habits of fossil fuel consumers; and the third the realistic limitations of technical solutions to climate change mitigation.

    Firstly, he argues, owners of fossil fuel reserves generally want to maximise their long-term profits. Since their extraction costs are just a few percent of their selling price, they can drop the price so as to increase their sales to ecological ‘sinners’whenever a green-minded country reduces its demand by increasing its energy efficiency or its supply of renewable energy. Hence, demand reductions by greenminded OECD countries do not translate into one-to-one supply reductions. They are highly likely to be partially or even completely offset (depending on the elasticity of demand) by increased demand as the price falls.

    Further, this is exacerbated by the business psychology inherent in ownership of fossil fuel reserves. If owners foresee a future where more and more countries will gradually go green, and fear that at some future date (such as the oft-mentioned 2050) they will have no markets for their fuels, good business sense tells them to sell as much as they can as early as they can, to avoid being left with useless stocks in a few decades` time.This is exactly the reverse of what the climate needs, yet, Sinn argues, it is just what current polices are causing.

    The only solution, says Sinn, is to effectively ambush the owners of fossil fuel reserves with a sudden, enforceable pact among all countries to reduce their demand on a strictly, globally agreed trajectory. Only a certain amount of fossil fuel, based on the tonnage of CO2e it would produce, would be permitted to be extracted each year, and this would diminish, year by year, on a clearly defined path. Reserve owners would have no choice but to follow this path. An international controlling body – Sinn suggests the UN – would distribute permits to countries on an agreed basis, and their governments could auction them, or in some other way distribute them, to their consumers. Like the current EU carbon certificates, they would be internationally tradeable, but unlike the EU certificates they would cover all fossil fuel.

    Two important consequences would follow. Firstly, the price of fossil fuels would fall, as reserve owners competed with each other for sales in the diminishing market. Consumers, of course, would pay more overall, as they would have to compete among each other for the certificates. But governments would reap a windfall from the auctioning of the certificates, and this money could be distributed to offset hardship to low income people due to rising fuel prices. Secondly, fossil fuels would be locked up in the ground, to be extracted gradually over whatever time span was deemed safe for the climate. Owners of fuel reserves would have a lower income, but one that would last far longer into the future, than the current situation allows.

    The second strand of Sinn’s argument concerns the business habits of fossil fuel consumers, or at least those he calls the ‘sinners’ – the USA, China, and all other countries that have either not participated in the Kyoto process or were exempt from its restrictions. Because, currently, there are no restrictions in these countries as to how much fossil fuel one may buy or consume, the law of supply and demand operates freely here. If the international price falls due, say, to German or British successes in reducing their demand, the sinners can get cheaper fuel and so will buy more. Their increased demand puts upward pressure on the price, until an equilibrium is again reached. The net effect is that global fossil fuel usage is not reduced, or hardly reduced at all. Of course, there are many other factors influencing the day-today price of fossil fuels, but the most significant dynamic is ever-increasing demand as developing countries industrialise.

    It follows that under the current global regime, all the efforts being put into technological and regulatory solutions to fossil fuel demand in the developed countries are, in Sinn`s view, no use at all in combating climate change.

    The third strand of Sinn`s argument concerns these technological and regulatory measures. For example, in a cogently argued chapter (pp. 204-251) he takes issue with biofuels. Using well-sourced date he argues that these produce almost as much, if not as much, CO2e as they save. Further, they compete with food production for arable land and agricultural resources. For the first time in history, he points out, the price of basic foodstuffs is now directly coupled to the price of fossil fuel. It is not merely that food growing requires fossil fuel for tractors and fertiliser. It is that a particular set of agricultural resources (land, fertiliser, expertise) can now be used interchangeably for either food or fuel production. The world’s poor now have to compete with the rich countries’ petrol tanks for their daily bread. This will get worse if policymakers continue to pursue biofuels as a means to combat climate change.

    In a further section (pages 297-304) Sinn challenges the view that carbon capture and storage is a valid demand-side alternative. Assuming it works and can be madeeconomically viable, the obvious problem is disposing of the enormous volumes of liquefied CO2 it produces. For coal power this is 5 times as much volume as the fuel burnt; for oil 3 times as much. It cannot be stored near populated areas because if it leaks on a windless day it can asphyxiate everyone in low-lying areas. It must be held secure for hundreds of thousands of years because, unlike nuclear waste, it never decays. The idea that we can safely store the gargantuan volumes of CO2 our power stations will produce over the next few hundred years is, Sinn argues, simply fantastical.

    Sinn contrasts this with nuclear energy, where the most advanced reactors produce relatively small volumes of waste, which needs to be kept secure for tens of thousands, rather than hundreds of thousands of years.

    In further chapters he takes issue with Germany’s penchant for renewable energy, particularly wind turbines and solar photovoltaics. In Germany the feed-in tarrif requires power companies to buy all this energy, and at high prices set by regulation.But wind power is so unreliable and out of synch with consumer demand that its real market value is tiny, and when the wind blows at the wrong time power companies often have to pay other countries to take it. Meanwhile, photovoltaics produce minuscule amounts of energy for the billions of euros of subsidy poured into them annually. A country that relied on these sources for its electricity would have a substandard system that could never support a modern industrial economy.

    The irony, as Sinn sees it, is that so much of today’s climate policy is doing nothing tosave the climate. It is severely misdirected. The only way to mitigate climate damage due to fossil fuel consumption is to act directly to keep the fossil fuels in the ground.

    What is especially important about this book is that, even if Sinn’s economic arguments turn out to be wrong, his basic idea still stands. The argument can be set out as a syllogism:

    1. The burning of fossil fuels is a sufficient condition to cause dangerous climate change;

    2. The extraction of fossil fuels is a necessary condition for them to be burnt;

    3. All fossil fuels that are extracted are subsequently burnt.

    4. Hence, the extraction of fossil fuels is also a sufficient condition for them to be burnt.

    5. THEREFORE: The extraction of fossil fuels is both a necessary and a sufficient condition to cause dangerous climate change.

    In other words, we will only arrest climate change if we keep fossil fuels in the ground, or at least control their rate of extraction to suit what the climate can manage.Regardless of what we think of the effect, on global fossil fuel demand, of OECD countries reducing their own demand, arresting climate change is guaranteed if we act directly and successfully to keep fossil fuels in the ground. It would seem sensible, then, to direct all our policy efforts toward this goal. This is the challenge Sinn leaves us with.

    A Case Study of Personal Harassment and Amplification of Nonsense by the Denialist PR Machine

    A Case Study of Personal Harassment and Amplification of Nonsense by the Denialist PR Machine
    , by John R. Mashey

    Anthropogenic Global Warming (AGW) – the idea that recent temperature rises are substantially caused by humans is supported by a very strong scientific consensus. But for ideological or economic reasons some people are absolutely sure that it cannot be true, frequently attack it and are often called contrarians or denialists as a result. They try to manufacture doubt on the consensus among the public, not by doing good science, but by using PR techniques well-honed in fights over tobacco-disease linkage. These are amplified by widespread use of the Internet, which is at least as good at propagating nonsense as truth.

    A recent, well-coordinated transatlantic attempt to attack the consensus included:
    -A not-very-good anti-consensus paper written in the UK by an NHS King’s College endocrinologist, Mr Klaus-Martin Schulte, not obviously qualified for this task,
    -of which much was posted by Viscount Christopher Monckton at a Washington, DC denialist website of Robert Ferguson, and publicized by Marc Morano of Senator James Inhofe’s staff.
    -The non-story then propagated rapidly and pervasively through the blogosphere.
    -This expanded further into personal harassment of a US researcher, Naomi Oreskes

    The Scientific Consensus on Climate Science

    by Naomi Oreskes

    Policy-makers and the media, particularly in the United States, frequently assert that climate science is highly uncertain. Some have used this as an argument against adopting strong measures to reduce greenhouse gas emissions. For example, while discussing a major U.S. Environmental Protection Agency report on the risks of climate change, then–EPA administrator Christine Whitman argued, “As [the report] went through review, there was less consensus on the science and conclusions on climate change”. Some corporations whose revenues might be adversely affected by controls on carbon dioxide emissions have also alleged major uncertainties in the science. Such statements suggest that there might be substantive disagreement in the scientific community about the reality of anthropogenic climate change. This is not the case.