The United States often cites liability fears to explain why it has been reluctant to support the creation of a new international fund for climate victims.
But some experts say fear is out of place.
Signing a UN agreement creating a fund for “losses and damage” related to climate change won’t open a Pandora box for litigation over past greenhouse gas emissions, they say.
Saleemul Huq, who heads the Bangladesh-based International Center for Climate Change and Development, dismissed US fears as a “bullshit argument”.
“Nobody talks about liability and damages,” he said. “It’s an old bug that they have.”
US opposition to a climate damage fund goes back years, including during negotiations on the groundbreaking Paris Climate Agreement. Back then, developing countries wanted to include liability for the destruction of the climate in wealthy countries in a text provision dealing with the irreversible consequences of climate change – or loss and damage.
In the 2015 Paris Agreement, developing countries secured themselves a hold to cover loss and damage, but the US delegation insisted on additional language banning their inclusion as a basis for future lawsuits.
The language referred to as Decision 52 was part of the side agreement of the Paris Summit. It states that the Loss and Damage section of the Paris Agreement “does not include or provide a basis for liability or compensation”.
“The idea that there is real liability – and compensation from liability flows – is something we disagreed with,” said Todd Stern, who led the US negotiating team at the Paris summit. “We just didn’t want to go there.”
This hesitation continues to this day.
At international climate talks in Glasgow, Scotland, which ended last weekend, US officials opposed calls for a new dedicated fund for losses and damages. The result was an agreement through dialogues that developing countries and their advocates described as an unnecessary delay in setting a future course for loss and damage.
The US climate commissioner John Kerry said at the end of the Glasgow summit that questions about the size of a loss and damage fund remain. And he argued that there are ways to distribute climate aid through established channels.
“We’re also always thinking about liability and where it’s going,” Kerry said when asked by E&E News.
Huq from the Center for Climate Change and Development called the US focus on liability avoidance “paranoid”. He said that since the Paris Agreement, developing countries “have never invoked liability and compensation as a basis for demanding the funding of loss and damage” and instead “appealed to developed countries on the basis of a common humanity and a sense of solidarity” .
“It seems to me that the US attitude towards us is to say that we know you are saying no liability and indemnity, but you think so, and that is not acceptable,” he added.
The question of how a UN deal could create new legal problems for the United States as the world’s largest historical greenhouse gas emitter is not an easy one. Conceptually, losses and damage seem to indicate emissions from countries that have contributed most to climate change over the past two centuries – including the United States.
Stern from the US negotiating team in Paris said nothing in the deal preventing plaintiffs from filing claims for damages related to climate change. It is only intended to prevent the international climate pact from being the basis for legal disputes because it deals with losses and damage.
“I assure you that at some point people decided to sue and there was no such language [in the Paris deal]”They would be referring to Paris, not … to say that it necessarily proves their case, but that it is a factor or something that needs to be thrown in the balance,” he said. “And we’re just saying that it’s not on the scale.”
Dan Bodansky, a law professor at Arizona State University, said that when the UN Climate Change agency starts funding loss and damage, that aid that will be donated by developed countries to poor countries harmed by emissions, for which they are largely responsible are responsible, as an obligation rather than a gift.
But liability issues would be resolved in national courts. And he said it was hard to see how this could lead to a successful litigation, especially in the United States.
“I think in the US I can hardly imagine that courts rely in any way on Glasgow decisions as a basis for decision-making or hold companies or the US liable,” he said. “I just don’t think that’s likely.”
Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University, was similarly skeptical.
“I could imagine a language and an international agreement that would make the US liable to some degree, but I cannot see the US agreeing to such a language,” said Gerrard.
In order to make the Paris Agreement a basis for increased liability for climate-related damage, the parties would have to adopt a language that assigns the industrialized countries responsibility for climate change and promises compensation to the developing countries.
Simply creating a fund and contributing to it wouldn’t have that effect, Gerrard said.
Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2021. E&E News provides important news for energy and environmental professionals.