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A Lawyer’s Take on COP26: More Hot Air Than Action

Dec. 3, 2021, 9:00 AM

The U.N. Climate Change Conference (COP 26) in Glasgow was called the most significant climate conference of our lifetime. The global consensus is that time is short, the pressure is on, and the facts are sobering. So, what is a lawyer’s verdict on what the summit delivered?

The verdict will be tough, because when governments speak in platitudes they don’t expect to be held to account. They don’t want their commitments to be legally enforceable.

When it comes to climate change, though, we need to write new rules that will be fundamental to the society we build for our common tomorrow. The laws we write and enforce show what we value. As our societies face their greatest challenge, the rules of the game are what is most important.

My reaction when listening to announcement after announcement at Glasgow was: Is any of this binding, can any of it be enforced? What is not binding and enforceable is hot air.

Despite progress in some key areas at COP26—including a decarbonization commitment by the U.S. and China, consensus to end deforestation by 2030, and a new net zero U.K. financial center—there is still a concerning gap between what was proclaimed at Glasgow and these proclamations becoming a reality on the ground.

COP26 Ends With No Agreement to End Coal Use

This COP was supposed to consign coal to history. COP President Alok Sharma said it himself —this is how we could keep our promise to halve emissions this decade and be on track to achieve net zero by mid-century. But the COP negotiations failed to secure an agreement to end coal or even ‘wind down’ the use of oil and gas.

Coal should already be a thing of the past, and the agreement should have gone much further on fossil fuels. Instead, we are left with a weak reference to remove “inefficient subsidies for fossil fuels.” This language is not authoritative enough to be useful and provides license to prolong our reliance on fossil fuels.

We are still not moving fast enough when it comes to emissions reductions. Promises to reach the goals of the Paris Agreement are meaningless if they do not result in emissions reductions in the short-term.

Governments should have established short-term plans and targets and backed those up with strong regulation and enforcement. I am pleased to note, though, that new procedures have been introduced to help spur the transition to low-carbon energy. These will help civil society hold governments to account when it is clear they are failing to get in line with 1.5°C.

Responsible Nations Are Still Not Held to Account

Additionally, under the Paris Agreement, countries decided to address loss and damages associated with climate change impacts. But nations historically most responsible for global heating have been shamefully reluctant to face up to their historical obligations to address this injustice.

This year’s agreement includes establishing a facility to support technical assistance on loss and damage from climate change in developing countries. Yet this facility will not provide financial support to compensate for loss and damage, which the coalition of least-developed countries was pushing for.

For the countries and communities needing financial assistance to address climate impacts, this is more than disappointing. COP26 provided developed countries with a huge opportunity to support those who bear the brunt of climate change, an opportunity that was missed.

Countries in the Global South that have contributed little to global warming are not seeing the $100 billion per year in climate financing that was promised years ago. This failure is an emerging human rights issue. If wealthy governments do not act appropriately, litigation will increasingly be used to hold them accountable.

This is where the power of the law can play a vital role in securing our future, and that of the most vulnerable. Without support for their climate adaptation, legal options to mandate support from the worst polluters will become more relied on—we are already seeing this from low-lying nations such as Vanuatu and Tuvalu.

Deeds, Not Words Are Needed

Commitments, even good ones, are only a first step. Delivery is what matters, and on this key point, the COP agreement is vague and lacks teeth.

The U.S. government still has a chance to show leadership. It must start by cleaning its own house. And it must address the gaps between its statements of ambition and its actions.

After naming the climate crisis one of his administration’s top three priorities, President Biden announced at COP26 his commitment to transition financial flows towards limiting warming to 1.5 degrees, which is a welcome step.

The U.S. must now ensure that corporate and financial actors align their activities with the Paris climate agreement, and if regulators do not mandate it, they risk jeopardizing global efforts to mitigate climate impacts—putting all our futures at risk. Company directors must play their part too, as they are legally responsible for managing climate-related risks, and can be held liable for failing to do so.

If governments fail to act, we as citizens have a chance to fundamentally change the conduct of our society, and we have a decade to do so. If governments and corporations won’t move fast enough, as COP26 demonstrated, citizens using the law can require faster, better, and more responsible action from them.

The law is a powerful tool for taking action. And we’ll need every tool at our disposal for saving civilization, working alongside people power and political might.

The dust has settled after the conference. The power of the law is more important than ever as we turn ambition into action. The law can work wonders—but we need to move further, faster.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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James Thornton is founding CEO of ClientEarth, an environmental legal organization.

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