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‘Loss and Damage’ a Top Concern at COP26 as Legal Questions Loom

Nov. 11, 2021, 2:31 PM

Failing to help developing nations cope with climate change could create a threat of legal liability to developed countries such as the U.S., climate law experts said at this week’s U.N. climate summit in Glasgow.

The issue is known as “loss and damage,” which is financial, technical and other assistance from affluent countries to developing nations where millions face displacement due to rising seas and temperatures and other extreme weather caused by climate change.

Vulnerable countries such as Barbados have been crying out at the COP26 summit for assistance from developed countries such as Canada, Great Britain, and the U.S., which bear most historic responsibility for driving climate change.

But the U.S. fought to keep any suggestion of legal liability regarding loss and damage out of the Paris accord. The State Department declined to comment on ongoing negotiations.

“I would expect the U.S. will continue to push against the inclusion of any language that would indicate anything in a COP agreement subjects it to liability in court,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

‘Major Hurdle’

Long-term liability questions still surround loss-and-damage even though, strictly speaking, countries such as the U.S. agreed under Article 8 of the Paris agreement that the pact “does not involve or provide a basis for any liability or compensation.”

“The language from the decision would be a major hurdle for anyone arguing that Article 8 provides a basis for liability or compensation, since it says just the opposite,” Burger said.

But there is loss-and-damage liability risk for developed countries outside of the scope of the Paris pact, said Catherine Higham, coordinator of the Climate Change Laws of the World Project at the Grantham Research Institute in London.

“There are two ways in which there are unresolved legal questions on loss and damage,” she said. “What is the kind of international legal responsibility of states to one another?”

First, individual communities could turn to companies, other private actors or their national governments for compensation, she said.

“Article 8 of Paris doesn’t eliminate the conversation about any of those types of responsibilities,” Higham said.

Second, developing nations seeking loss and damage could use some principles of international law to make a case that countries “do have a responsibility to prevent climate loss and damage to other states, and in the event that that responsibility isn’t met, there is a responsibility of restitution,” she said.

“Although the Paris agreement itself may not be the source of that, there is still a big question in international law about that,” Higham said. “I wouldn’t say that Article 8 puts it to bed.”

‘Growing and Unjust Burden’

Advocates say liability questions overlook the primary reason countries are calling on polluting nations to lend them a hand.

“The real threat here is the growing and unjust burden of climate impacts on developing countries,” said Rachel Cleetus, climate policy director for the Union of Concerned Scientists.

Ample ways are available for the U.S. and other countries to to provide new financing for loss and damage that don’t cross legal “red lines,” she said.

During a ministerial meeting on loss damage, for example, Barbados Prime Minister Mia Motley called for rich countries to contribute 1% of their revenue generated from the sale of fossil fuels to a loss-and-damage fund for most vulnerable countries.

Developing countries contributed to the problem but aren’t stepping forward at COP26 to help repair the damage they caused, said Harjeet Singh, a New Delhi-based adviser to the Climate Action Network International, speaking at a COP26 side event this week.

Loss-and-damage assistance is essential in places where adaptation to a changing climate has failed or is expected to fail, forcing people from their homes, he said.

Cleetus agreed. “It is now incumbent on richer nations to provide solutions, not continue to create obstacles to progress,” she said.

More Movement Needed

Some observers say the U.S. is more open to conversations about loss-and-damage than in the past, and the issue has has received more attention at the United Nations’ COP26 summit than at recent previous summits.

“There has never before been so much attention focused on it both within the formal venue and outside,” Cleetus said.

An early draft text of the COP26 final decision “reiterates the urgency” of addressing loss and damage, and “urges” developed countries to provide support.

The inclusion of language about loss and damage in the draft represents real progress at a U.N. climate summit, said Margaret Peloso, a partner at Vison & Elkins LLP whose practice focuses on climate change risk management and environmental litigation.

“For a decade or more, loss and damage had been a real sticking point in negotiations, and the language here suggests perhaps the global dialogue is changing,” Peloso said.

To contact the reporter on this story: Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Chuck McCutcheon at cmccutcheon@bloombergindustry.com; Rebecca Baker at rbaker@bloombergindustry.com

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