Ethical Issues with Relying on Natural Gas as a Solution to Climate Change

I. Introduction

Interest in tackling climate change in the United States has increased somewhat recently in response to global CO2 atmospheric concentrations reaching 400 ppm, although there is almost no hope of new federal legislation soon. Many claims have been made recently that increased use of natural gas is an important element in any US response to climate change. In this regard, the natural gas industry has made a considerable effort to convince citizens that natural gas from hydraulic fracking is part of the solution to climate change. As an example, the following is from a gas industry website.

Because carbon dioxide makes up such a high proportion of U.S. greenhouse gas emissions, reducing carbon dioxide emissions can play a pivotal role in combating the greenhouse effect and global warming. The combustion of natural gas emits almost 30 % less carbon dioxide than oil, and just under 45 % less carbon dioxide than coal.

One issue that has arisen with respect to natural gas and the greenhouse effect is the fact that methane, the principle component of natural gas, is itself a potent greenhouse gas. Methane has an ability to trap heat almost 21 times more effectively than carbon dioxide. According to the Energy Information Administration, although methane emissions account for only 1.1 % of total U.S. greenhouse gas emissions, they account for 8.5 % of the greenhouse gas emissions based on global warming potential. Sources of methane emissions in the U.S. include the waste management and operations industry, the agricultural industry, as well as leaks and emissions from the oil and gas industry itself. A major study performed by the Environmental Protection Agency (EPA) and the Gas Research Institute (GRI), now Gas Technology Institute, in 1997 sought to discover whether the reduction in carbon dioxide emissions from increased natural gas use would be offset by a possible increased level of methane emissions. The study concluded that the reduction in emissions from increased natural gas use strongly outweighs the detrimental effects of increased methane emissions. More recently in 2011, researchers at the Carnegie Mellon University released “Life cycle greenhouse gas emissions of Marcellus shale gas”, a report comparing greenhouse gas emissions from the Marcellus Shale region with emissions from coal used for electricity generation. The authors found that wells in the Marcellus region emit 20 percent to 50 percent less greenhouse gases than coal used to produce electricity.

(Naturalgas. org, 2013)

The interest in natural gas combustion as a potential solution to climate change has been gaining because US ghg emissions have fallen somewhat as natural gas from hydraulic fracturing technologies has been rapidly replacing coal in electricity sector generation. In this regard, for instance, Reuters recently reported in regard to recent drops in US ghg emissions that:

Carbon dioxide (CO₂) emissions from energy use in the first quarter of this year fell to their lowest level in the U.S. in 20 years, as demand shifted to natural gas-fired generation from coal-fired electricity due to record low gas prices, the energy department said.

(Reuters, 2012)

The US natural gas industry has often argued that a switch to natural gas will significantly reduce ghg emissions from the electricity sector because natural gas emits almost 50 % less CO₂per unit of energy produced than coal combustion. For this reason, natural gas is often referred to as a “bridge fuel.” (See, e.g, Kirkland)

The following chart shows the amount of pollutants including CO2 from natural gas, oil, and coal combustion.

As we can see from this chart, natural gas combustion as a source of electricity generation produces about 70 % of the CO2 as oil and 56 % of the CO2 compared to coal without including methane leakage amounts, a matter discussed below. Yet controversies remain about whether natural gas should be understood as a solution to climate change and if so to what extent. This article first identifies the controversies and then reviews these issues through an ethical lens.

II. The Controversies

Two controversies about the efficacy of switching from coal to natural gas combustion in the production of electricity need to be resolved before conclusions on the beneficial effects of natural gas in reducing ghg emissions can be made. These controversies are: (a) Lingering issues about methane leakage rates, and (b) The inability of current natural gas combustion technology to achieve the magnitude of ghg emissions required to prevent dangerous climate change particularly in the medium- to long-term.

A. Unresolved Methane Leakage Rates

Natural gas is mostly methane, a potent ghg. Natural gas production from hydraulic fracturing is known to leak methane. It is usually assumed that replacing coal with gas would reduce greenhouse gas emissions as long as the leakage of methane into the air from gas production does not exceed 3.6%. (Reuters, 2012) Yet significant controversies remain about actual methane leakage rates. In this regard recently there has been a flurry of conflicting papers about methane leakage rates from natural gas production. For instance, US EPA concluded that methane leakage was 2.4% of total natural-gas production in 2009. Other recent studies have found leakage rates of 4% and 9% from hydraulic fracturing operations in Colorado and Utah. (Tollefson, 2013) As a result, no rational climate change action plan or ghg inventory should ignore controversies about methane leakage from hydraulic fracking operations. Until methane leakage rates are scientifically determined, any ghg inventory or projection of future emissions should identify the range of leakage rates that appear in the extant literature. In addition to leakage rates from natural gas production facilities, methane leakage is also known to occur in natural gas transmission lines as well as from vehicles powered by natural gas and other end uses of natural gas. Therefore, actual methane leakage rates into the atmosphere from natural gas need to be based on the sum of leakage from all of these sources that include production, transmission, and end use.

Because methane leakage rate controversies are not yet resolved, any climate change action plan must be transparent about the limitations of predicting ghg emissions from natural gas consumption and fully identify all uncertainties about leakage rates.

(b) The Need To Move Aggressively To Non-Fossil Renewable Energy Even If Natural Gas Proves to Be A Short-Term Bridge Fuel

To understand why natural gas combustion in the electricity sector is not likely be an adequate solution to climate change in the long-term, it is necessary to understand the scale of the problem facing the world. The international community agreed in climate change negotiations under the United Nations Framework Convention on Climate Change in Copenhagen in 2009 that the international community should limit warming to 2°C to prevent dangerous climate change. In fact, countries agreed to further assess whether the 2°C warming limit needs to be replaced by a more stringent 1.5°C warming limit to avoid dangerous climate change impacts. This conclusion was confirmed in climate negotiations in Cancun in 2010, in Durban in 2011, and in Doha in 2012. A 2°C warming limit was chosen because there is substantial scientific evidence that warming above 2°C could trigger rapid, non-linear climate change threatening hundreds of millions of people around the world and the ecological systems on which life depends. Even if rapid climate change is not triggered if the 2°C warming is exceeded, this amount of warming will create huge harms to some people and nations around the world. Stabilizing CO2 equivalent concentrations at 450 ppm would only result in a 50% likelihood of limiting global warming to 2°C, and that it would be necessary to achieve stabilisation below 400 ppm to give a relatively high certainty of not exceeding 2°C. (Report of the Scientific Steering Committee of the International Symposium on the Stabilization of Greenhouse Gases)

Limiting warming to 2°C or less will require reductions in global ghg emissions below current emissions by as much as 80 percent by mid-century for the entire world and as we explained in the a recent article on “equity” at even greater reduction levels for most developed countries. (see On the Extraordinary Urgency of Nations Responding To Climate Change on the Basis of Equity.)

And so, the challenge facing the world to limit future warming to tolerable levels is extraordinarily daunting and will likely require a level of global cooperation far beyond any other previous human problem.

Stabilizing atmospheric concentrations at levels that will avoid dangerous climate change requires immediate action. The entire world will need to peak its ghg emissions as soon as possible followed by emissions reductions at extraordinarily ambitious rates over the next 30 years. The longer it takes for world ghg emissions to peak and the higher ghg emissions levels are when peaking is achieved, the steeper global emissions reductions need to be to prevent dangerous levels of warming. The following chart shows the emissions reduction pathways that are needed in this century to give the world any reasonable hope of limiting warming to 2°C, assuming global emissions continue to rise at current levels during the next few years.

(Anderson, 2012)

And so it is clear that the later the peaking of total global emissions, the steeper the reduction pathways that are needed.

Further scientific analysis may reveal that methane leakage rates may be small enough to provide climate change emissions reduction benefits when coal combustion of electricity production is replaced by natural gas combustion. As we have seen this is an ongoing controversy about which further scientific analysis is needed. Still, as explained below, given the enormity of global reductions of ghg emissions that are necessary to prevent dangerous climate change, natural gas is likely only to be a short-term bridge fuel. (IEA, 2012)

This is so because according to a recent International Energy Agency (IEA) report, natural gas can play at best a limited, very temporary role “if climate objectives are to be met.” That is, greater ghg emissions reductions are needed to prevent 2°C warming than those that can be achieved by switching from coal to natural gas combustion. And so mos observers argue that the only viable response to the threat of catastrophic climate change is rapid deployment of existing carbon-free technology. (IEA, 2012) Even if natural gas combustion creates a 50 percent less CO2 per unit of energy produced, an amount which is beyond best case on ghg emission reductions, it will not produce the greater emissions reductions necessary in the next 30 years necessary to give any hope of restricting warming to potentially catastrophic levels. In short, natural gas combustion cant get us where we need to be just a few decades out. It might help in the short term, but we need massive investment in non-fossil technology as soon as possible.

In addition if coal combustion were to be replaced now by non-fossil fuel energy, it would help immediately much more than conversion of coal to natural gas combustion does with putting the world on an urgently needed ghg emissions reduction pathway that gives more hope of preventing catastrophic warming.

There are also other significant benefits of moving quickly to non-fossil fuels. For instance, according to IEA report, fuel savings from investment in non-fossil fuel technologies will pay for the investments. (IEA, 2012) Even if natural gas is a short-term bridge fuel, delay in investing in non-fossil fuel technologies may make it impossible to meet the emissions reductions targets needed to prevent dangerous climate change. For this reason, any climate action strategy must look at emissions reductions pathways beyond 2020 necessary to limit warming to 2^oC and consider what amounts of non-fossil energy are needed through 2050. Because huge amounts of non-fossil energy will very likely be required to allow the United States and other developed nations reduce their carbon foot-print to levels required to meet their fair share of safe global emissions, the more rapid the ramp up of non-fossil energy the easier it will be to reach acceptable ghg emissions levels in the years ahead.

Furthermore, the IEA report makes it clear that abundant cheap natural gas could push renewables out of the market unless there is a price on carbon or aggressive economic support for non-fossil renewable energy. It is also possible that cheaper natural gas prices may lead to higher rates of consumption of electricity creating higher CO2 emissions. For this reason, any reliance on natural gas combustion as a method of reducing CO₂ emissions must provide for ramped up commitments to non-fossil fuel sources of energy at levels needed to prevent dangerous climate change. Reliance on natural gas alone will not achieve the 80%-95% reductions required of developed nations to prevent dangerous climate change.

Barriers to much more aggressive use of non-fossil combustion appear to be a lack of political will coupled and arguments about prohibitively high costs of non-fossil energy. We will now examine these issues through an ethical lens.

III. Ethical Analysis of the Natural Gas and Climate Change Controversies

Natural gas hydraulic fracturing technologies have created issues about social and environmental impacts that are beyond the scope of this article. Here we more narrowly examine ethical questions raised by reliance on natural gas as a solution to climate change.

Depending on how the methane leakage controversy is resolved, switching from coal combustion to natural gas combustion could help lower ghg emissions from the electricity sector in the short term. Given that the United States has strong ethical responsibilities to rapidly reduce its carbon footprint, a matter examined extensively in Ethicsandclimate.org, one might initially conclude that as a matter of ethics switching to natural gas from coal combustion is ethically justifiable as a short-term strategy. Yet, undeniably replacement of coal combustion with non-fossil energy would create a much greater reduction in the long run in the US carbon footprint than a shift to natural gas from coal combustion would alone. As we noted above, objections to moving immediately to non-fossil energy are lack of political will and cost arguments. We now look at these political and cost arguments through an ethical lens.

A. The United States and Other High-Emitting Nations Have A Duty to Reduce Their Carbon Footprint As Rapidly and Dramatically As Reasonably Possible

No reasonable ethical theory could justify current US projected ghg emissions, including projected reductions that are expected to come from increased substitution of coal with natural gas at least in the medium to long term. This is so for many reasons including, first, as we have explained in considerable detail in the recent article on climate change equity, US emissions far exceed global averages in per capita emissions, the US is by far the largest contributor to historical emission which have raised atmospheric concentrations of CO2 from approximately 280 ppm to 400 ppm, and the world is now running out of time to limit warming to non-dangerous levels. Because, as we have demonstrated in the recent article on “equity” and climate change, there are approximately 50 ppm of CO2 equivalent atmospheric space that remain to be allocated among all nations to give the world approximately a 50% chance of avoiding a 2^oC warming and developing nations that have done little to elevate atmospheric CO2 to current levels need a significant portion of the remaining atmospheric space , high emitting developed nations need to reduce their emissions as fast as possible to levels that represent their fair share of the remaining acceptable global budget. (See On the Extraordinary Urgency of Nations Responding To Climate Change on the Basis of Equity.) For this reason, high-emitting nations have strong ethical duties to reduce their ghg emissions as fast as possible to their fair share of safe global emissions. Without doubt, this means that the United States has an ethical duty to reduce emissions both in the short and long run faster than switching to natural gas combustion from coal sector will allow by itself.

As we have previously explained in EthicsandClimate.org there is now a scientific consensus that developed countries must limit their ghg emissions by as much as 25% to 40 % below 1990 emissions levels by 2020 and between 80% and 95% below1990 levels by 2050 to have any reasonable chance of avoiding dangerous climate change which would require atmospheric ghg concentrations to be stabilized at 450 ppm. (IPCC, 2007: 776) (Also see, What You Need To Know to Understand the Scale of the Climate Change Problem and The Continuing US Press Failure to Report on the Urgency of this Civilization Challenging Threat)

The actual amount of emissions reductions that are needed between now and 2020 is somewhat of a moving target depending on the level of uncertainty that society is willing to accept that a dangerous warming limit will be exceeded, the most recent increases in ghg emissions rates, and assumptions about when global ghg emissions peak before beginning rapid reduction rates.

One new study shows that we have to reduce emissions even more than scientists initially thought in order to avoid climate change’s worst impacts. A paper published in Energy Policy on February 20, 2013 by Michel den Elzen and colleagues examines new information on likely future emissions trajectories in developing countries. (Ezden, 2013) As a result, the report finds that developed countries must reduce their emissions by 50% below 1990 levels by 2020 if we are to have a medium chance of limiting warming to 2°C, thus preventing some of climate change’s worst impacts.

As we have seen above, to stabilize atmospheric concentrations at levels that will avoid dangerous climate change the entire world will need to peak its emissions in the next few years followed by emissions reductions at hard to imagine rates over the next 30 years.

As we have also explained in EthicsandClimate. org, US reductions need to be much greater than average reduction levels required of the entire world as a matter of equity because the United States emissions are among the world’s highest in terms of per capita and historical emissions and there is precious little atmospheric space remaining for additional ghg emissions if the world is serious about avoiding dangerous climate change. (See, What You Need To Know to Understand the Scale of the Climate Change Problem and The Continuing US Press Failure to Report on the Urgency of this Civilization Challenging Threat)

No matter what reasonable assumptions are made about carbon budgets that need to guide the world’s response to avoid dangerous climate change, as a matter of ethics, the US has a duty to reduce its ghg emissions both in the short and long run to levels much greater than switching to natural gas combustion from coal will accomplish by iteslf.

Even if switching to natural gas in the short term reduces the US carbon footprint somewhat, it is still not sufficient by itself to put the US on an emissions reduction pathway consistent with its ethical obligations without other policy interventions including putting a price on carbon or rapid ramp up of renewable energy. Given that the natural gas is likely to reduce costs of electricity production, there is also some risk that with lower costs demand for electricity will increase which will undermine both incentives for finding increases in efficiency while raising ghg emissions levels. For this reason, the United States needs to create an emissions reduction target consistent with its obligations to the world. (See, On the Extraordinary Urgency of Nations Responding To Climate Change on the Basis of Equity.)

Although ethical reflection on benefits of short term switching to natural gas reveals the above ethical questions, long-term reliance on natural gas as a climate change solution raises greater issues of ethical concern. This is so because although switching to natural gas combustion from coal can reduce temporarily the US carbon footprint when coupled with the right policy measures, there is no hope that natural gas combustion alone can achieve the huge emissions reductions necessary to put the United States on an emissions reduction pathway that matches the US ethical obligations to prevent dangerous climate change. The United States urgently needs to adopt policies that will ramp up its use of non-fossil energy immediately. Investment in natural gas combustion could delay investment in non-fossil energy. Moreover the amount of non-fossil energy needed to put the US on an emissions reduction pathway consistent with its ethical obligations requires the United States to begin immediately as a matter of ethics. The longer the United States waits to move more aggressively to increase the share of non-fossil energy, the more difficult, if not impossible, it will be to meet non-fossil energy needs a few decades from now. And so as a matter of ethics a strong case can be made that the United States needs immediately to adopt policies designed to aggressively increase levels of non-fossil energy.

And so if political will is a barrier to greater use of non-fossil energy, politicians resisting greater commitment to non-fossil energy are most likely supporting positions that fail to pass minimum ethical scrutiny.

The fact that much greater US commitments to renewable energy are feasible is demonstrated by looking at achievements of other nations. Germany, for instance, has set a goal of 100% renewable energy in its electricity sector by 2050. (The Gaurdian, 2010) Germany’s Environment Agency’s study found that switching to 100 % green electricity by 2050 would have economic advantages, especially for the vital export-oriented manufacturing industry (The Gaurdian, 2010) It would also create tens of thousands of jobs.

B. Ethical Analysis of Cost Arguments In Opposition to Non-Fossil Electricity Generation

There are many factual issues that could be contested in regard to any argument that switching to a non-fossil fuel future is cost-prohibitive. As we have seen, for instance, Germany claimd that an aggressive move to a non-fossil future has economic benefits. (For a good discussion of economic arguments for aggressive policies in support of renewable energy see, Germany Energy Transition, Henric Boll, 2012)

Cost arguments made in opposition to aggressive policies in support of a non-fossil future many not only be challenged on a factual basis but also on an ethical basis. There are several ethical issues raised by such cost arguments that have been extensively looked at in prior articles in EthicsandClimate.org. These ethical issues include

Cost arguments are often deeply ethically problematic because they ignore duties, responsibilities, and obligations to others to reduce ghg emissions. That is, cost arguments usually appeal to matters of self-interest and ignore responsibilities to others including the tens of millions of poor people around the world that are already suffering from climate change impacts or who are much more vulnerable to much harsher climate change impacts in the future than the United States is.
Cost arguments are ethically problematic if they fail to examine the costs of non-action and only consider the costs to high emitters of reducing ghg emissions. Given that most economists now believe that costs of non-action far exceed costs of reducing the threat of climate change, costs considerations that only consider costs to polluters are both deeply ethically troublesome and radically incomplete.
Costs arguments may not be made against climate change policies if greenhouse gas emissions lead to serious human rights violations of victims who have not consented to be put at risk.
Cost arguments often translate all values to economic values measured in markets and thereby transform some things that victims hold have sacred value into commodity value.
Cost arguments usually ignore questions of distributive justice while arguing that government policy should be based upon maximizing economic efficiency or utility. Distributive justice issues that are frequently ignored by the use of cost arguments to oppose climate policy include the fact that costs would be imposed on those who are causing the problem yet the victims of climate change that would benefit from taking action are some of the poorest people around the world that have done little to cause the problem
Cost arguments usually ignore issues of procedural justice including the right of victims to consent to being put at risk to climate change impacts.
Cost arguments alone usually ignore well settled norms of international law including the “polluter pays” and “no harm” principles that the United States and almost all other nations have agreed to in ratifying the United Nations Framework Convention on Climate Change.

In conclusion, we have identified strong ethical arguments that support the need to ramp up non-fossil fuel combustion in the United States and other developed countries while implicitly acknowledging that there could be some short-term benefit if coal combustion is replaced by natural gas, a conclusion that only can be reached with better understanding of the methane leakage issues. Yet even if there is some short-term benefit from substituting natural gas for coal combustion, there is no ethical basis for doing this without simultaneously aggressively ramping up non-fossil fuel electricity combustion. We note that some in the natural gas industry and their political supporters continue to oppose policies designed to ramp up non-fossil fuel combustion at the same time claiming that natural gas is a solution to climate change. Because the failure to ramp up non-fossil fuel combustion Under the circumstances discussed in this article, such opposition is ethically problematic.

By:

Donald A Brown

Scholar In Residence, Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

Why US States Have A Duty To Reduce Their Emissions to Their Fair Share of Safe Global Emissions: The Case of Pennsylvania.

A new report that looks at Pennsylvania examines why US states must reduce their greenhouse gas (ghg) emissions to their fair share of safe global emissions. Although this report focuses on Pennsylvania, the conclusions in this report could be applied to other US states as well as sub-national and regional governments around the world.

The report concludes that Pennsylvania needs to act to reduce the threat of climate change. The report explains how the latest science on climate change that is being articulated by the most prestigious scientific institutions including the National Academy of Sciences leads to the conclusion that there is an urgent need of governments at all scales to act to reduce the threat of climate change to maintain any hope of avoiding dangerous climate change. The report also explains how climate change will likely affect Pennsylvania and hundreds of millions of poor, vulnerable people around the world. Given this, the report explains why Pennsylvania needs to also plan to adapt to climate change impacts that are now very likely even if governments respond more aggressively to climate change than they have in the past. The report also compares Pennsylvania’s response to climate change to other US states.

The report calls Pennsylvania to adopt an enforceable greenhouse gas target consistent with Pennsylvania’s fair share of safe global emissions because Pennsylvania ghg emissions are contributing to global emissions and there is an urgent need to dramatically reduce global ghg emissions to prevent dangerous warming. Because ghg emissions from Pennsylvania are contributing both to enormous threats to the world and will likely have adverse impacts on human health and ecological systems in Pennsylvania (a matter discussed below), the state should reduce its emissions to Pennsylvania’s fair share of safe global emissions. Pennsylvania must also act to reduce ghg emissions because Pennsylvania controls human activities that produce ghg emissions that are not regulated at the federal level for such activities as some transportation decisions, regulation of electricity generation, building codes, land use, waste disposal, and some aspects of forest protection.

Although a description of Pennsylvania’s exact fair share of safe global emissions was beyond the scope of this report, nonetheless, the report concluded that a strong case can be made that Pennsylvania should limit its emissions to achieve greater percentage of ghg reductions than required of the entire world to avoid dangerous climate change. This is so because like all US states and most of the developed world nations, ghg emissions levels from Pennsylvania far exceed most of the world in per capita ghg emissions. In other words, if it is determined that the entire world should reduce its emissions by 80 % below 1990 levels to prevent dangerous climate change, high-emitting nations or sub-national governments around the world, including US states, will need to reduce their emissions to even greater levels on the basis of equity and fairness. To require each nation or government to reduce emissions by the same percentage amount would freeze into place unjust emission levels for high-emitting governments. For this reason, almost all the nations of the world, including the United States in 1992 when it ratified the United Nations Framework Convention on Climate Change, agreed that each nation must reduce its emissions on the basis of “equity” to prevent dangerous climate change. (UNFCCC, 1992: Art 3, Para 1) If all nations need only reduce their emissions by equal percentage amounts, then a high emitting nation like the United States that emits ghg at rate of 17.3 tons per capita would be allowed to emit at a level 10 times more per capita than a country like Vietnam that emits 1.7 tons of ghg per capita. (World Bank, 2012b) As a result, all nations have agreed that national targets must be based upon fairness or equity although reasonable differences exist about what fairness requires.

An issue brief for New York State recently recognized the need of New York to set ghg emission targets on the basis of equity:

Determining how much individual states or nations should reduce emissions through mid-century requires consideration of allocation equity and reduction effectiveness. The UNFCCC approach to apportioning ghg emission reduction requirements between developed and developing nations considers a broad spectrum of parameters, including population, gross domestic product (GDP), GDP growth, and global emission pathways that lead to climate stabilization.Applying these parameters, the UNFCCC concludes that, to reach the 450 ppm CO2e stabilization target, developed countries need to reduce ghg emissions by 80 to 95 percent from 1990 levels by 2050. (New York State, 2009)

And so like New York, Pennsylvania should recognize that its emissions reduction target must be based upon fairness. However, because reasonable differences exist about what equity requires of nations and states in setting emissions reductions targets, this report makes no specific final recommendations on what an enforceable ghg cap should be except to claim it should be fair. At the very minimum, however, any State cap should be at least as stringent as emissions reductions levels needed by the entire world to provide reasonable confidence that dangerous climate change will be avoided. It should also be based on recognition that fairness likely requires Pennsylvania to be more aggressive in reducing its ghg emissions than most of the rest of the world. As the above quoted New York report recognizes, a state like Pennsylvania might set a target to reduce ghg emissions by 80 to 95 percent from 1990 levels by 2050.

Furthermore, any action plan and interim emissions reductions target should put Pennsylvania on an emissions reductions pathway consistent with the need to limit global emissions to levels that will stabilize atmospheric greenhouse concentrations at levels that provide reasonable confidence of preventing dangerous climate change. This requirement entails the need of any Pennsylvania action plan to consider not only what action steps are necessary to achieve a target at a specific year such as 2020, the target year recognized in an unimplemented 2009 Pennsylvania action plan, but also to consider actions that will put Pennsylvania on a reduction pathway capable of reducing ghg emissions from Pennsylvania necessary to prevent dangerous climate change in the years ahead. More specifically this means that Pennsylvania’s action plan should consider how it will achieve emissions reductions to achieve any long-term goals such the potential goal of reducing ghg emissions by 80 to 95 percent below 1990 levels by 2050.

Given all of this the report calls for Pennsylvania to:

Adopt a legally-binding GHG emissions reduction target consistent with Pennsylvania’s fair share of safe global emissions.
Work with the Climate Change Advisory Committee identified in the 2008 Pennsylvania Climate Act supplemented by vigorous public participation to identify strategies to reduce Pennsylvania GHG necessary to achieve the legally-binding GHG emissions reduction target
Adopt any laws or regulations necessary to implement the action plan and achieve the target.
Greatly ramp up Pennsylvania’s commitment to non-fossil energy.
Develop and periodically update a climate change adaptation plan.
Encourage, support, and recognize actions and programs to reduce the threat of climate change by Pennsylvania sub-state level governments, businesses, organizations, and educational and religious institutions.

The full report can be downloaded at http://www.pagreencolleges.org/CapitolEvent

Reference:

New York State, (2009). Climate Change Issue Brief, New York Energy Plan 2009, www.nysenergyplan.com/final/Climate_Change_IB.pdf

By:

Donald A. Brown

Scholar In Residence,

Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

On the Extraordinary Urgency of Nations Responding To Climate Change on the Basis of Equity.

This article seeks to explain in understandable terms why nations must not only aggressively respond to climate change but respond at levels required of them by equity if the world is going to have any hope of avoiding dangerous climate change. And so, this article seeks to help citizens around the world understand why their nations must create climate change policies consistent with their equitable obligations and that if their nations fail to respond on the basis of equity, there is vey little hope of an adequate global solution emerging that has any potential of avoiding catastrophic climate change.

Once again there has been some renewed interest in responding to climate change this week in response to the announcement by the National Oceanic and Atmospheric Administration (NOAA) that carbon dioxide (CO2) atmospheric concentrations have reached 400 ppm (parts per million). This concentration of CO2 is not only higher than experienced in the last 3 million years of Earth’s history (Kunzig, 2013), it is additional evidence that the world is rapidly running out of time to prevent dangerous climate change. NOAA posted on its website Wednesday night, May 9, that the daily average for CO2 was 400.03 ppm. (Kunzig, 2013) The last time the concentration of the CO2 reached this mark, horses and camels lived in the high Arctic and seas were at least 30 feet higher. (Kunzig, 2013) This sea level rise would inundate major cities around the world and cause harm to hundreds of millions around the world when temperatures finally responded to these elevated greenhouse gas (ghg) atmospheric concentrations.

Although this story made it to the front page of the New York Times, (see Schuetze 2013), the US press continues to fail to educate American citizens fully about the seriousness of the problem that the world is facing particularly in regard to the urgent need of nations to take immediate steps to reduce their emissions to their fair share of safe global ghg emissions. Ethicsandclimate.org has previously examined the failure of the US press to communicate to American people the importance of the equity issue in formulating US policy. (See, The US Media’s Grave Failure To Communicate The Significance of Understanding Climate Change as A Civilization Challenging Ethical Issue.Yet, as we will explain, in light of the rapidly decreasing amount of time remaining for the world to prevent dangerous climate change, there is now more than ever a need to increase political support at the national level around the world for the adoption of policies on climate change that reflect each nation’s fair share of safe global emissions.

When almost all nations around the world agreed to the 1992 United Nations Framework Convention on Climate Change (UNFCCC), they promised to adopt policies and measures to limit warming based upon “equity” to prevent dangerous anthropogenic interference with the climate system. (UNFCCC, Art. 3) Up until very recently it was possible for nations to ignore that they had a responsibility to reduce their ghg emissions to levels based upon “equity.” And so many, if not most, nations have been entering international climate negotiations as if they need only look to their national economic interest to determine what ghg emissions reductions commitments they need to make under the UNFCCC. However, now that the world is running out of time to prevent dangerous climate change, the urgent need of nations to reduce their emissions to levels required of them on the basis of equity and basic fairness is now obvious and undeniable. This was not the case only a few years ago. For instance, just three years ago it was possible for the United States to ignore what was required of it as a matter of basic fairness because nations were happy when the United States made any commitment to reduce its ghg emissions having refused to do so from the early 1990s through 2010. Any US commitment was viewed as a positive step. And so, when President Obama made a voluntary commitment in 2010 in Copenhagen to reduce US emissions by 17% below 2005 levels by 2020, it was widely celebrated throughout the international community even though most observers knew this commitment was far short of what justice required of the United States. Yet just two years later in Qatar, the same US commitment was almost universally condemned on justice grounds. (See: Qatar: Bumping Up Against Climate Change Limitations On Human Activities Makes Ethical and Justice Issues Unavoidable)

The importance of each government entity’s responsibility to limit their emissions to their fair share of safe global emissions has become undeniably obvious to most observers of international climate negotiations now that it has become clear to all that there is precious little time for the global community to avoid dangerous climate change. The central importance of the need to get nations to respond to climate change on the basis of “equity” becomes very obvious once a number of scientific aspects of climate change are fully understood. However, too few people understand these scientific aspects of climate change and the press is failing to educate citizens about these issues.

To fully understand the importance of national responses on the basis of “equity” it is necessary to understand some features of climate change that make it unlike any other environmental problem facing the world. The atmosphere is like a bathtub, it has limited volume. Nations have been filling up the atmospheric bathtub since the beginning of the industrial revolution in the late 1790s. Because CO2 is long-lived in the atmosphere, the bathtub continues to fill up with CO2 even if rates of CO2 emissions slow down somewhat unless all ghg emissions are reduced to the rate at which the Earth’s natural carbon cycle can remove CO2, an amount which is less than 20% of existing emissions levels. Decreasing ghg emissions does not prevent global atmospheric concentrations from increasing unless they are cut back globally by huge amounts. And so to prevent dangerous climate change nations have to do much more than cut back on the ghg emissions levels that they are entering the atmosphere, they have to cooperate to prevent the level in the bath tub from reaching levels that will cause dangerous climate change. As we shall see, this is a level that the world is fast approaching. Furthermore because CO2 is well mixed in the atmosphere it makes no difference where on Earth the ghgs come from, the atmospheric concentrations of ghg continue to rise without regard to location of the source of emissions.

What makes the current climate change threat so ominous is that the levels of CO2 that have been building up for over 200 years are quickly approaching levels that could trigger dangerous climate change as emissions are increasing in many parts of the world.

In our experience, most Americans don’t understand the scale of the climate change facing the world. In Copenhagen in 2010 the international community agreed to set as a goal warming limit of 2°C not withstanding there are some scientific evidence to believe that the warming limit should be lower at 1.5 °C. The 2°C warming limit was chosen because there is strong scientific evidence that warming above 2°C could trigger rapid nonlinear climate change thereby threatening hundreds of millions of people around the world and the ecological systems on which they depend. Even if 2°C warming doesn’t trigger nonlinear warming, this amount of warming will cause great harm around the world to people and places that have done little to cause climate change.

The following graph describes the staggering challenge facing the world if the international community desires to limit warming to 2°C. The graph depicts three different emissions reductions pathways where the steepness of ghg emissions reductions needed to limit 2°C depend upon when global emissions levels peak, that is in 2015, 2020, or 2025. Despite over twenty years since the international community agreed in 1992 to adopt policies and measures based upon equity to prevent dangerous climate change, global ghg emissions levels continue to rise despite a global economic turn down in 2008. Global CO2 emissions grew 3 percent in 2011 and were estimated to rise 2.6 in 2012. (Morello, 2012). Since the international community began to negotiate a climate change solution, rather then emissions levels diminishing they have grown to 58 percent above the 1990 emissions level in 2012 (Morello, 2012). And so, the world is facing the urgent need to reduce ghg emissions at hard to imagine rates as seen in the following graph where the different colored lines on this chart represent different assumptions about climate sensitivity. This graph shows that if the world waits to act together to prevent ghg emissions from rising until 2020 or 2025, the world will need to reduce ghg emissions at staggering reduction levels after the peak years.

(Anderson, K.. 2012)

On the basis of the magnitude of the ghg emissions reductions challenge facing the world, mainstream scientists around the world are now emphatically trying to get the world’s attention about the urgency of the need to act dramatically to prevent dangerous climate change. Yet there has been little discussion in the media about the importance of equity in national responses to this global emergency coupled with the fact that one needs to understand other aspects of the climate change problem to fully understand the importance of requiring nations to reduce their emissions based upon “equity.”

Once one identifies an atmosphere ghg concentration level that will serve as a goal for preventing dangerous warming it is a relatively straightforward calculation to identify the remaining amounts of ghg emissions that can be emitted worldwide to prevent atmospheric ghg concentrations from exceeding the maximum concentration goal. This calculation is the basis for determining an emissions budget. Because there is some uncertainty about climate sensitivity, that is how much warming the Earth will experience at different atmospheric ghg concentrations, different atmospheric ghg concentration goals create different levels of probability of limiting warming to 2°C. The following chart identifies the quantity of ghg emissions in gigatons of CO2 equivalent that the world may emit to achieve different levels of probability that the 2° C warming limit will not be exceeded. Therefore we see from this chart that if the entire world is assumed to be allowed to emit no more than 886 gigatons (Gt) of CO2 equivalent, this budgetary limit creates between a 8% and 37%, with a best estimate of 20%, probability that temperatures will exceed the warming limit of 2°C. At the upper end of this chart, a 1437 Gt CO2 budgetary limit creates a probability of between 29 to 70 probability, with a best estimate of 50%, that the 2°C warming limit will be exceeded.

The chart also shows that if the world emits ghgs at levels projected at 56 Gt per year, then, assuming that the world chooses to live with a budget of 886 Gt CO2 which gives the world an 80% probability that future warming will be limited to 2°C, then after12 years there will be zero emissions left in the budget. The chart also demonstrates that even if the world chooses to run the risk of accepting a 50% probability that the 2°C warming will be exceeded then world can only emit greenhouse gases at projected levels for 22 years.

As gloomy as this picture in regard to the remaining global ghg emissions budget, we have not yet explained why getting nations to commit to reduce their emissions to levels required of them by equity is so important and indispensable for thinking clearly about how the world must respond to the threat of climate change. And so, now, for the first time, we can explain the importance of “equity” in guiding international responses to climate change.

Returning to the use of a bathtub as a metaphor for the atmosphere, we note that there is already elevated levels of ghg (metaphorically water) in the bathtub that have risen to current levels from over 200 years of human activities. That is CO2 has increased in the atmosphere from 280 ppm to 400 ppm since the beginning of the industrial revolution. If we assume that atmospheric concentrations of CO2 equivalent should be limited to 450 ppm to give the world a 50% chance of keeping warming from exceeding the 2°C warming limit, atmospheric concentrations have increased already by120 ppm from pre-industrial levels and only 50 ppm of atmospheric space are left to allocate to the entire world. The 120 ppm increase in atmospheric CO2 concentrations that has already been put into the bathtub by human activities has overwhelmingly been caused by activities in some rich, developed countries much more than poor developing countries. The following chart shows which countries have contributed the most elevated concentrations of CO2 in the atmosphere.

(EPA, 2002)

And so some countries more than others have contributed far more than others to elevated ghg concentrations. Given that there’s only 50 ppm of atmospheric space left to allocate (assuming and atmospheric goal of 450ppm giving approximately a 50 % chance of exceeding the 2°C) and some developing countries desperately need to use the remaining atmospheric space to escape grinding poverty, it is obviously unfair or inequitable to require all countries to reduce emissions by the same amount.

Furthermore, the above chart demonstrates that some countries including the United States, Canada, and Australia, for instance, far exceed others in per capita levels of emissions from their citizens compared to other countries such as India.

If it is determined that the entire world must reduce its emissions by 80% below 1990 levels to prevent dangerous climate change, high-emitting nations or governments around the world, including the US, Canada, and Australia, will need to reduce their emissions to even greater levels on the basis of equity and fairness. To require each nation or government to reduce emissions by the same percentage amount would freeze into place unjust emission levels for high-emitting governments and very low emissions rates for poor developing countries. For this reason, almost all the nations of the world, including the United States in 1992 when it ratified the UNFCCC, agreed that each nation must reduce its emissions on the basis of “equity” to prevent dangerous climate change. (UNFCCC, 1992: Art 3, Para 1) If all nations need only reduce their emissions by equal percentage amounts, then a high-emitting nation like the United States that emits ghg at rate of 17.3 tons per capita would be allowed to emit at a level 10 times more per capita than a country like Vietnam that emits 1.7 tons of ghg per capita. (World Bank, 2012b) As a result, all nations have agreed that national targets must be based upon fairness or equity.

Given that the entire world has only 50 ppm of atmospheric space left to allocate to give the world a reasonable expectation of preventing dangerous climate change, the equitable and fairness dimensions of national ghg emissions reductions commitments become obvious and crucial to increasing the ambition of nations to reduce their ghg emissions. Yet most citizens seem completely unaware of the equity issues entailed by climate change and many high-emitting nations are ignoring their equitable responsibilities.

However, the ability of nations to ignore what equity requires of them will become more and more difficult as the world wakes up to the hard-to-imagine stringent carbon budget that the world must face to avoid catastrophe warming. In addition the longer nations wait to respond to climate change on the basis of equity, the more difficult it will be in the future to do so because the steepness of their emissions reductions pathways needed to comply with what equity requires increases the longer nations wait to respond appropriately.

References:

Anderson, Ken, (2012) , Climate Change Going Beyond Dangerous, Brutal Numbers, Tenous Hope, http://whatnext.org/resources/Publications/Volume-III/Single-articles/wnv3_andersson_144.pdf

EPA, (2002), CO2 emissions by country (http://www.epa.gov/climatechange/emissions/)

Kunzig, Robert, (2013) National Geographic News, Climate Milestone: CO2 Level Passes 400 ppm, National Geographic, http://news.nationalgeographic.com/news/energy/2013/05/130510-earth-co2-milestone-400-ppm/

Morello, (2012), Global CO2 Emissions from Fossil-Fuel Burning Rise into High-Risk Zone, Scientific American, http://www.scientificamerican.com/article.cfm?id=global-co2-emissions-from

Open Source, (2013) http://ossfoundation.us/projects/environment/global-warming/what-we-dont-know

World Bank, (2012), CO2 Emissions (Metric Tons Per Capita), http://data.worldbank.org/indicator/EN.ATM.CO2E.PC

United Nations Framework Convention on Climate Change (UNFCCC), (1992), http://unfccc.int/essential_background/convention/background/items/1349.php

By:

Donald A. Brown

Scholar In Residence,

Sustainable Development Ethics and Law

Widener University School of Law

dabrown57@gmail. com

Agenda 21: A Guide for the Perplexed: Disinformation Campaign About Sustainable Development Emerges In the United States

Editor’s note: The following guest entry by Professor John Dernbach of Widener University School of Law is being reproduced here because it is a response to an emerging disinformation campaign about sustainable development that appears to be growing in the United States recently. This attack on sustainability and reasonable land use planning raises many of the same ethical issues discussed frequently on Ethicsandclimate under the topic of “climate change disinformation campaign.” Future posts on this web site will further develop the ethical issues entailed by this kind of attack on sustainable development because such attacks raise ethical issues for climate change policy formation as climate change policies should consider environmental, economic, and social goals of policies, the essential idea of sustainable development. In the following post, Professor Dernbach explains the emerging disinformation campaign which untruthfully characterizes Agenda 21, the international agreement on sustainable development which was finalized at the 1992 Earth Summit in Rio de Janeiro. The attacks attempt to convince citizens and local and regional governments that reasonable land use planning is the implementation of a United Nations scheme that will decrease individual liberty and diminish property rights. This post was originally posted on the website of the American College of Environmental Lawyers at http://www.acoel.org/post/2013/03/27/AGENDA-21-A-GUIDE-FOR-THE-PERPLEXED-.aspx

Agenda 21: A Guide for the Perplexed

At a local government meeting on a land use plan, officials hear opposition based on the claim that it is tainted by Agenda 21. A state public utility commission considering smart meters hears similar claims. They are confused: what is Agenda 21 and why does it matter?

A well organized campaign against Agenda 21, spread by the Tea Party, Glenn Beck, and the John Birch Society, exists well outside the realm of ordinary environmental law work. But it is beginning to affect that work. The real target of this campaign, moreover, is not Agenda 21 but sustainable development—a common sense approach to reconciling environment and development that provides the basis for our environmental and land use laws. Environmental lawyers thus need a basic understanding of what Agenda 21 is and what it is not.

Agenda 21 is a comprehensive public strategy for achieving sustainable development. It was endorsed by the U.S. (under the presidency of George H.W. Bush) and other countries at the U.N. Conference on Environment and Development in 1992. Agenda 21 stands for two broad propositions: 1) environmental goals and considerations need to be integrated into all development decisions, and 2) governments and their many stakeholders should work out the best way to integrate environment and development decisions in an open and democratic way.

Agenda 21 contains an almost encyclopedic description of the best ideas for achieving sustainable development that existed in 1992. On land use, it specifically counsels respect for private property. It contains a detailed description of the role that many nongovernmental entities, including business and industry, farmers, unions, and others, should play in achieving sustainability.

Agenda 21 endorses, and to a great degree is based upon, ideas that were already expressed in U.S. environmental and natural resources laws. Its core premise is espoused in the National Environmental Policy Act of 1969. Long before Agenda 21, NEPA set out “the continuing policy of the Federal government” to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans” (42 U.S.C. § 4331).

Ironically, Agenda 21 was never taken seriously as such in the United States; there has never been much enthusiasm here for following international agreements. It is not a legally binding treaty; it contains no provisions for ratification, for example. Agenda 21 also says nothing about new ideas like green building, smart growth, and smart meters. But sustainable development as an idea—achieving economic development, job creation, human wellbeing, and environmental protection and restoration at the same time—is gaining traction.

In response, opponents are attacking sustainability by making false statements about Agenda 21. They say that Agenda 21 is opposed to democracy, freedom, private property, and development, and would foster environmental extremism. For many opponents, the absence of a textual basis in Agenda 21 for such claims (in fact, the text explicitly contradicts all of these claims) is not a problem. First, they are attacking a document that is not well known, and so they count on not being contradicted. Second, the false version of Agenda 21 fits a well known narrative that is based on fear of global governance and a perceived threat of totalitarianism, and on distrust of the United Nations. Indeed, the absence of information to support such fears only deepens their perception of a conspiracy. According to this view, moreover, people who talk about sustainable development without mentioning Agenda 21 are simply masking their true intentions.

Far-fetched, you say? Well, consider this: in 2012, Alabama adopted legislation that prohibits the state or political subdivisions from adopting or implementing policies “that infringe or restrict private property rights without due process, as may be required by policy recommendations originating in, or traceable to ‘Agenda 21’” (Ala. Code § 35-1-6). This, of course, could chill a variety of otherwise ordinary state and local decisions. Similar bills are pending in state legislatures across the country.

In a variety of other places, elected officials and professional staff who have worked with stakeholders for years to produce specific land use and energy proposals find their work mischaracterized as the product of Agenda 21, even though they have never heard of it. Agenda 21’s lack of direct relevance to the specific proposals should, but does not always, provide an answer to such claims.

The campaign against Agenda 21 has no serious empirical or textual foundation. But it can work against sustainability and good decisions—and cost time and money—when clients and their lawyers don’t recognize it for what it is.

By:

Professor John Dernbach

Distinguished Professor

Widener University School of Law.

On The Practical Need To Examine Climate Change Policy Issues Through An Ethical Lens

2-17 DC rally 9.jpg

Although infrequently, one occasionally hears acknowledgement in US public discussions about climate change that human-induced warming is a moral issue. US President Obama, for instance, recently acknowledged that the US Congress should act for the purpose of protecting future generations in his State Of the Union Address.

Hardly ever, however, does the public debate about climate change policy acknowledge the significance for policy formation if climate change is a moral issue. In a new book, Climate Change Ethics: Navigating the Perfect Moral Storm, this writer examines the thirty year climate change policy debate in the United States in significant detail and concludes that climate change policy arguments for and against action on climate change have been exclusively argued in the languages of science and economics, technical languages that often pretend to be “value-neutral.” Ethical examination of policy options have been almost completely absent from the public debate and the US press has completely failed to cover the obvious ethical and justice issues raised by climate change despite the fact that some vulnerable nations have been raising justice issues in international negotiations for over twenty years.

In addition, even those who acknowledge that climate change is a moral problem often argue that the only way to get US citizens to respond to climate change is to appeal to their self-interest. Thus, these people often advise those trying to get US citizens to support climate change policies to talk about the adverse impacts to the US that are predicted to motivate support for climate change policies. That is, frequently one hears some claim that US citizens will not respond to ethical arguments about duties of the United States to not harm people in Africa or Asia. For this reason, when potential adverse harms from climate change are discussed in the United States the examples given are most frequently climatic events in the United States such as hurricanes Katrina and Sandy or droughts in the US Midwest. Very rarely are links between US greenhouse gas emissions and killer droughts, floods, storms and sea rise around the world discussed during US climate change debates Even rarer are ethical issues identified when specific proposals for climate change legislation or policies are under discussion in the public media.

It would appear that, to the extent that climate change is understood to be a moral issue in the United States, it is understood solely as a potential motivating consideration for taking any action on climate change. For many there is no practical value in making moral arguments because appeals to self-interest are deemed to be stronger motivating influences. And so, even those that see climate change as an ethical and moral concern often ignore the moral dimensions of climate change when arguing on behalf of climate policies.

Given this reality, one might ask why is it practically important to see climate change policy issues as raising important ethical issues.

As we have explained frequently on Ethicsandclimate.org, climate change is a problem with features that particularly require that it be seen as an ethical problem even more than other environmental problems. Those features include that it is a problem that is being caused by some people in one part of the world who are putting others in another part of the world who have often done little to cause the problem at great risk. Secondly the harms to those at most risk are not mere inconveniences but catastrophic harms to life and natural resources on which life depends. Finally climate change is a problem of about which the victims can do little to protect themselves by petitioning their governments. The victims’ best hope is that the those high-emitters causing the problem will see that they have duties to the victims to avoid harming them. And so, the ethical dimensions of climate change are important to understand because unless those nations and individuals that are emitting greenhouse gases at high levels reduce their emissions in accordance with their ethical obligations, climate change will exacerbate the injustice in the world and cause great harm to hundreds of millions that have done little to cause the problem.

And so, people around the world should respond to climate change in accordance with their ethical obligations because it is the right thing to do. Yet in addition to the moral reason for acting ethically, there are numerous practical reasons for framing climate change policy issues through an ethical lens because these policy questions cannot be thought about clearly without an ethical framing.

Ethicsandclimate.org has sought to identify and examine ethical issues that must be faced in climate change policy formation. This site now includes over 100 articles and 11 videos that look at ethical issues that have arisen in the discussions about climate change policies over the last six years.

As we have demonstrated in Ethicsandclimate.org, the following controversies entailed by the need to develop policy on climate change cannot be thought about critically and clearly without considering the ethical dimensions of these issues:

Setting an atmospheric greenhouse gas stabilization target. (Ethical issues in setting an a ghg atmospheric stabilization level include the need to protect the most vulnerable around the world in the face of scientific uncertainty about climate sensitivity.)
The selection of a warming limit for implementation of the United Nations Framework Convention on Climate Change. (Ethical issues that must be faced include the need to protect the most vulnerable given that any increases in global temperatures will harm some people in some places and scientific uncertainty about where thresholds that will trigger rapid non-linear climate system responses are not known precisely. These question raise clear ethical issues.)
Allocating responsibility among nations, sub-national governments, organizations, businesses, and individuals to reduce the threat of climate change. (This issue entails numerous ethical issues that cannot be avoided in policy formation in regard to how to allocate responsibility for greenhouse gas emissions reductions given differences among nations, sub-national governments, organizations, businesses, and individuals in emissions on a per capita basis, historical responsibility, and financial ability to take action among other ethical considerations.)
Economic arguments in opposition to or in support of climate change policies. (There are numerous ethical problems with economic arguments that are frequently made against climate change policies on economic grounds including the implicit denial of obligations, responsibilities, and duties to not harm others, the implicit rejection of the well established international law norm that polluters should pay for the harms of pollution, the inapplicability of cost arguments if the harms are violating human rights, numerous ethical problems with “cost-benefit” analysis that are used to justify non-action on climate change including the frequent failure to disaggregate harms and benefits, issues with the discounting future benefits and numerous other ethical problems with some costarguments made in opposition to climate change policies.)
Scientific uncertainty arguments in opposition to or in support of climate change policies. (Decision-making in the face of scientific uncertainty raises numerous ethical issues including who should have the burden of proof, what quantity of proof should satisfy the burden of proof, and do potential victims of climate change impacts about which there is some uncertainty have rights to participate in decisions that could adversely affect them, and many others.)
The climate change disinformation campaign compared to responsible climate change scientific skepticism. (The well-documented climate change disinformation campaign that has flourished in the United States and several other countries for the last 20 years raises numerous ethical questions including ethical problems with telling untruths about climate change science, ethical questions about norms that should be followed by responsible skepticism, whether the disinformation campaign is some kind of new assault against humanity and many others.)
Who should be responsible for needed adaptation to climate change? (The need for adaptation particularly in poor vulnerable countries raises numerous ethical questions about who should be responsible for adaptation costs, how to prioritize adaptation needs, and who gets to decide how funding will distributed among adaptation needs among others.)
Who should be responsible for loss and damages from climate change? (Because damages and losses from climate change are being experienced by some people around the world that have been caused by the activity of others, determining criteria for who should pay for damages and losses are ethical matters.)
Whether politicians can ethically rely on their uninformed opinion of climate change science to justify their position on climate change policies. (Politicians who have the power to prevent their constituents from harming others through the release of greenhouse gases have ethical duties not to rely upon their own uninformed opinion about climate change science.)
The justifiability of commercials and advertising designed to influence citizens about the need to adopt climate change policies. (Fossil fuel companies and others with economic interests in preventing climate change policies from being enacted may not ethically mislead the general public on the science of climate change in advertising campaigns.)
The extent to which high-emitting entities may rely on self-interest as justification for reducing the threat of climate change. (No high emitters of greenhouse gases may justify their emissions on self-interest based arguments alone, something they frequently do, but must acknowledge that they have duties, responsibilities, and obligations to reduce the threat of climate change.)
Issues raised by technical solutions to climate change such as geological carbon sequestration, nuclear power, geo-engineering, wind power, and solar power. (All technical solutions to climate change including biofuels, geo-engineering, nuclear, wind, solar, and other renewables have some negative impacts that need to be ethically evaluated in the context of the enormous adverse impacts caused by climate change.)
Whether nations may wait to take action on climate change on the basis that new less costly technologies to reduce the threat of climate change. (Whether a nation may wait to reduce greenhouse gas emissions that exceed its fair share of safe global emissions on the basis that new less costly technologies will be invented latter is an ethical matter.)
Whether a nation may justify its refusal to take action to reduce the threat of climate change on the basis that other nations have not acted. (This justification for not taking action is deeply ethically problematic.)
Issues raised by cap and trade systems for managing greenhouse gas emissions. (Cap and trade regimes raise numerous ethical issues including questions of distributive justice about how allowances are allocated, issues about the environmental sufficiency of the cap and trade regime, and how to resolve conflicts between environmental sufficiency and minimizing transaction costs among other issues.)
The positions of individual politicians about climate change. (Politicians supporting or opposing specific climate change policies frequently raise issues that can only be critically evaluated through an ethical lens.)
The role and responsibility of the media in reporting on climate change issues. (Given the enormous amount of potential harm from human-induced warming and a well-organized and well-funded disinformation campaign to undermine climate change science, ethical issues about journalistic norms for reporting on climate change science have arisen.)
The appropriateness of attributing certain potential climate change impacts to human causation such as tornadoes and hurricanes. (Some potential climate change impacts such as the frequency and intensity of hurricanes and tropical storms are not yet fully understood, however, once it is established by the scientific community that these impacts are plausible but not yet proven, ethical questions arise about whether these potential impacts should be identified in discussions about policy formation.)
Procedural rights of victims of climate change to participate in climate change decisions. (Occasionally nations have chosen not to reduce greenhouse gas emissions on the basis of scientific uncertainty or cost to their economy without consulting the potential victims of climate change in ways that raise questions of procedural justice.)
The positions nations have taken in international climate change negotiations. (Many nations have entered international climate negotiations taking positions based upon national economic self-interest and thus have ignored duties and responsibilities to others. An ethical analysis of these positions is needed to identify ethical problems with these positions.)
The evaluation of outcomes of Conferences of the Parities under the United Nations Framework Convention on Climate Change. (The evaluation of whether any outcome of any international negotiating session under the UNFCCC is acceptable is, at least in part, a matter of whether the parties have made commitments consistent with their ethical obligations.)
The application of international legal norms to climate change policies. (The development of an international climate regime on climate change should be informed by numerous international norms that have ethical significance including the “no harm,” “precautionary,” and “polluter pays” principles, and numerous soft-law principles on human rights and duties of sovereign states. The application of these principles to any climate proposed change regime raises ethical questions)
Human rights and climate change. (If climate change prevents human rights from being enjoyed by sone people around the world, ethical analysis is necessary to evaluate what justifications for national positions on climate change are acceptable.)
The creation of climate change law. (Nations around the world are considering new laws on climate change. Although there are differences between legal and moral obligations, laws should be consistent with ethical obligations.)

And so, an ethical framing of climate change issues is practically necessary to evaluate numerous policy issues that arise in climate change policy formation.

By:

Donald A. Brown

Scholar In Residence,

Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

A video: Why Politicians May Not Rely On Their Own Uninformed Opinion On Climate Change Science.

This 11 minute video examines why politicians, unlike many ordinary citizens, may not rely upon their own uninformed opinion on climate change science as a basis for refusing to support climate change policies. The video argues that politicians have responsibilities that ordinary citizens do not have to protect others from harms that their constituents are causing others.

This video follows the last entry on this subject:

Why Politicians May Not Ethically Rely on Their Own Uninformed Opinion About Climate Science and 10 Questions That The Press Should Ask Politicians About Climate Science In Light of This Responsibility.

By:

Donald A. Brown

Scholar In Residence, Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

Why Politicians May Not Ethically Rely on Their Own Uninformed Opinion About Climate Science and 10 Questions That The Press Should Ask Politicians About Climate Science In Light of This Responsibility.

Marco Rubio, a US Senator from Florida, recently said that he was not sure the climate change was human caused. This is one of the reasons why he’s unwilling to support US government action to reduce the threat of climate change. Many other US politicians have also recently said they will not support legislation to reduce US greenhouse gas emissions because they are not convinced that climate change happening or is human-caused. In fact, 7 out of 8 Republican candidates for the US presidency proclaimed they didn’t believe that climate change was a problem. (Skeptical Science) When these politicians are asked about the basis for their positions on climate change, they almost always respond by saying such things as they “have heard that there is a disagreement among scientists” or similar responses that strongly suggest they have informed an opinion on climate change science without any understanding of the depth of the scientific evidence on which the scientific consensus view 0f climate change has been based. For instance, US politicians frequently assert that it is an open question whether humans are causing the undeniable warming that the Earth is experiencing, thus exposing ignorance of dozens of lines of independent robust evidence of human causation including attribution studies, finger print analyses, strong evidence that correlates fossil fuel use to rising atmospheric concentrations of greenhouse gases, and other physical and chemical evidence.

Although ordinary individuals may have no duty to go beyond their own personal opinion about the science of climate change, government officials who have the power to enact policies that could present catastrophic harm to millions of people around the world may not as a matter of ethics justify their refusal to support policies to reduce the threat of climate change on the basis of their uninformed opinions on climate science. This is so because government officials, unlike ordinary citizens, have the power to prevent or minimize great harms to millions of people around the world that mainstream scientists have concluded that their constituents or governments that they represent are causing or contributing to. That is, a government officials have more responsibility than the average citizen to understand the state of climate change science because the government official can uniquely prevent harm that their constituents or governments are causing. And so, when government officials with the power to enact climate change policies are on notice that respectable scientific evidence supports the conclusion that their constituents or governments are likely causing great harm, they may not appeal to their uninformed opinion on climate science as justification for not taking action.

The government official is like the railroad official who has been told by employees who are in a position to know the location of the company’s trains that there is a runaway train hurtling toward a bus full of children that is stuck on the track, when the official has the ability to divert the train onto a track on which no humans will be harmed.

In the case of climate change, government officials should know that 97 of every 100 scientists that actually do peer-reviewed climate science research and in the United States by the most prestigious scientific organizations including the US National Academy of Sciences that greenhouse gases coming from his constituents threaten catastrophic harm not only to his constituents but to millions of people around the world, most of whom have done little to cause climate change.

In the case of climate change, the US politician not only has the power, working with colleagues, to prevent great harm caused by his or her constituents, he or she has the responsibility to prevent his or her constituents from harming others outside United States. This responsibility was expressly agreed to by the United States when it ratified the United Nations Convention on Climate Change which contains the following acknowledgment of the US governments responsibility to prevent harm to those outside the United States in the convention’s Preamble:

Recalling also that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (UNFCCC Preamble)

In the case of climate change, the people that will be harmed (those in our metaphorical bus) are not only the constituents of the politician but hundreds of millions of people around the world that have done little or nothing to cause climate change.

The vast majority of climate scientists and over 100 scientific organizations whose members have climate science expertise have concluded that humans are causing climate change and human-induced climate change creates catastrophic threats for the human race and particularly for hundreds of millions of poor people around the world who are most vulnerable to climate change impacts. Although there are some differences among some mainstream scientists about some of the details of the consensus view, an open letter from the American Association for the Advancement of Science’s which was endorsed by 18 of the most prestigious scientific organizations in the United States summed up the nature of the scientific consensus as follows:

As you consider climate change legislation, we, as leaders of scientific organizations, write to state the consensus scientific view. Observations throughout the world make it clear that climate change is occurring, and rigorous scientific research demonstrates that the greenhouse gases emitted by human activities are the primary driver. These conclusions are based on multiple independent lines of evidence, and contrary assertions are inconsistent with an objective assessment of the vast body of peer- reviewed science. (AAAS 2009)

Though scientific consensus must always be open to responsible skepticism given: (a) the strength of the consensus on this topic, (b) the enormity of the harms predicted by the consensus view, (c) an approximately 30 year delay in taking action that has transpired since a serious climate change debate began in the United States in the early 1980s, (d) a delay that has made the problem worse while making it more difficult to achieve ghg emissions reductions necessary to prevent dangerous climate change because of the steepness of reductions now needed, no politician can ethically justify his or her refusal to support action on climate change based upon a personal opinion that is not supported by strong scientific evidence that has been reviewed by scientific organizations with a wide breadth of interdisciplinary scientific expertise. Because any further delay will make the climate change threat worse, US politicians have a duty to support policies that will reduce the threat of climate unless they can produce strong scientific evidence that has been fully vetted by respectable scientific institutions that climate change is not the threat entailed by the scientific consensus view.

In this situation the government official has a strong duty to go beyond his or her own uninformed opinion about whether humans are causing dangerous climate change. They must justify their refusal to act on strong, peer-reviewed scientific evidence that is accepted by mainstream scientific institutions that have the breadth of expertise to consider one study in the context of thousands of other studies in climate change science. And so, government officials may not justify their refusal to act simply on the basis of their personal opinion.

Because politicians have an affirmative duty to initially rely upon mainstream scientific views in regard to human activities that could cause great harm, the press has a journalistic duty to help citizens understand any politician’s views that oppose action on climate change policies on scientific grounds. The US press has almost always failed to probe the justifications of those opposing action on climate change on scientific grounds. For this reason, journalists should ask politicians that claim there is not sufficient scientific support for government action climate change the following questions:

1. What specific scientific references and sources do you rely upon to conclude that there is a reasonable scientific dispute about whether human actions are causing dangerous climate change?

2. Are you aware that the United States Academy of Sciences and almost all respected scientific organizations whose membership includes scientists with expertise relevant to climate change science support the scientific consensus view that holds has that the planet is warming, that the warming is mostly human caused, and that harsh impacts from warming are very likely under business-as-usual?

3. On what basis do you disregard the conclusions that humans are causing dangerous climate change held by the United States Academy of Sciences, over a hundred scientific organizations whose membership includes experts with expertise relevant to the science of climate change, and 97 percent of scientists who actually do peer-reviewed research on climate change?

4. When you claim that the United States need not adopt climate change policies because adverse climate change impacts have not yet been proven, are you claiming that climate change skeptics have proven that human-induced climate change will not create adverse impacts on human health and the ecological systems of others on which their life often depends and if so what is that proof?

5. When you claim that the United States should not adopt climate change policies because there is scientific uncertainty about adverse climate change impacts, are you arguing that no action of climate change should be taken until all scientific uncertainties are resolved given that waiting to resolve all scientific uncertainties before action is taken will very likely make it too late to prevent dangerous human-induced climate change harms according to the consensus view?

6. Do you deny that those who argue that they should be allowed to continue to emit greenhouse gases at levels that may be dangerous should assume the burden of proof that their actions are safe given the strength of the consensus view on climate change science?

7. Do you deny that those who are most vulnerable to climate change’s harshest potential impacts have a right to participate in a decision about whether to act to reduce the threat of climate change in the face of scientific uncertainty?

8. Given that in ratifying the United Nations Framework Convention on Climate Change (UNFCCC) the Untied States in 1992 agreed to the following under Article 3, do you believe the United States is now free to ignore this promise by refusing to take action on climate change on the basis of scientific uncertainty?

The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.

(UNFCCC, Art 3)

9. If you claim that the climate change impacts predicted by the Intergovernmental Panel on Climate Change (IPCC) have not reached a level of scientific certainty that warrants action, do you agree that climate change impacts predicted by IPCC could be wrong in both directions, potentially leading to even harsher adverse impacts than those predicted?

10. Given that for over 20 years since international climate change negotiations began, the United States has refused to commit to reduce its greenhouse gas emissions based upon the justification that there is too much scientific uncertainty to warrant action, if it turns out that human-induced climate change actually greatly harms the health and ecological systems on which life depends of others, should the United States be responsible for the harms that could have been avoided if preventative action had been taken earlier?

By:

dabrown57@gmail.com

Donald A. Brown

Scholar In Residence,

Sustainability Ethics and Law

Widener University School of Law

A short video : Can The United States Justify Its Unwillingness to Reduce Its GHG Emissions on the Basis of US Economic Interest Alone?

Some US politicians claim that the US need not reduce its GHG emissions because it is not in the US economic interest to do so. This short vide explains why the US has ethical duties to the rest of the world to reduce US ghg emissions, not only economic interests.

By:

Donald A Brown
Scholar in Residence, Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

The Climate Change Disinformation Campaign: What Kind Of Crime Against Humanity, Tort, Human Rights Violation, Malfeasance, Transgression, Villainy, Or Wrongdoing Is It? Part Two: Is The Disinformation Campaign a Human Rights Violation Or A Special Kind of Malfeasance, Transgression, Villainy, Or Wrongdoing ?

This is the second in a series looking at how to classify the climate change disinformation campaign given that it is some new kind of assault on humanity, yet not easily classifiable into existing categories of behaviors that cause great harm. Part One of this series identified four prior articles and three videos that Ethicsandclimate.org has previously produced on this subject as well as looking at whether this effort to undermine the mainstream scientific view about climate change can be classified as a crime against humanity or a tort under common law. These previous articles distinguished the tactics of the disinformation campaign from responsible skepticism and the acceptable exercise of free speech after explaining what is meant by the “climate change disinformation campaign” and how it operated.

I. Is The Climate Change Disinformation Campaign A Human Rights Violation?

A. Introduction

A very strong case can be made that human-induced climate change triggers human rights violations because of the destructive nature of climate change damages. If human rights are to be understood to be recognition of those norms that are necessary to protect human dignity, inadequate climate change policies must be understood to trigger human rights violations because climate change will not only make human dignity impossible for millions of people around the world, including countless members of future generations but also directly threaten life itself and resources necessary to sustain life. And so, as we shall see, climate change causing activities create human rights violations because of the enormity of harm to life, health, food, property, and inviolability of the right of all people to enjoy the places where they live.

Yet finding legal remedies under human rights legal theories for the the destructive role that the disinformation campaign has played in preventing or delaying solutions to climate change will require finding at a minimum: (a) a specific human right under and an existing human rights regime that has been violated by climate change, (b) a human rights regime that has the jurisdiction and legal authority to grant the requested remedy in the specific human rights controversy before it, (c) a legal theory supporting the claim that non-state actors, not just governments, responsible for the violations of human rights have duties to prevent human rights, and (d) a legal justification to link the duties of non-state actors to prevent human rights violations to the activities of the disinformation campaign.

B. Which human rights are violated by climate change and do human rights fora have the authority to adjudicate claims based upon the tactics of the disinformation campaign?

The 1948 Universal Declaration of Human Rights (UDHR) is usually viewed to be the foundational document in modern international human rights law. (UN, 1948). The UDHR is a non-binding ‘soft-law’ agreement among nations that over time has been complemented by a series of legally binding international treaties while retaining its status as customary international law. Because it is customary international law it could be relevant to damage claims made in civil litigation requesting damages in cases before international courts such as the International Court of Justice.

The two most important global human rights treaties in addition to the UDHR often stated to be the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).

The Universal Declaration on Human Rights identifies the following as entitled to rights protections that are relevant to climate change:

(a) Life, liberty, and security of person. (Article 1)

(b) Right to an effective remedy by national tribunals for violations of fundamental or constitutionals rights. (Article 8)

(c) Full equality to a fair public hearing by an independent and impartial tribunal, in the determination of a person’s rights and obligations. (Article 10)

(d) Freedom from arbitrary interference with privacy, family, home or correspondence. (Article 12)

(e) Freedom from being arbitrarily deprived of property. (Article 17)

(f) Right to a standard of living adequate for the health and well being of himself and his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (Article 25)

(g) Rights to a social and international order in which the rights and freedoms can be fully recognized. (Article 28) (UN1948)

The International Covenant on Economic, Social, and Cultural Rights (ICESCR) identifies the following as entitled to rights protections relevant to climate change protections:

(a) The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. (Article 11)

(b) The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

a. To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources;

b. Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

(c) The right of everyone to the enjoyment of the highest attainable standard of physical and mental health… The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:… (c) prevention, treatment and control of epidemic, endemic, and occupational and other diseases. (Article 12)

The International Covenant on Civil and Political Rights (ICCPR) identifies the following as entitled to rights protections that are relevant to climate change protections:

(a) Inherent Right to Life. This right shall be protected by law. (Article 5)

(b) Right to be protected from arbitrary and unlawful interference with his privacy, family, home…. (Article 15)

A strong case can be made that climate change prevents people all around the world from enjoying the above rights.

These three documents i.e. the UDHR, the ICESCR, and the ICCPR are often considered to be the foundational documents that comprise an international bill of rights. Yet not all nations have adopted all three documents. Although the UDHR has been accepted by most nations of the world, the ICPCR and ICCPR have been less widely so. In fact the ICESCR has not been ratified by the United States and therefore may be inapplicable to climate change caused human rights violations in the United States. To date, these two treaties have been ratified by about 75 percent of the world’s countries. The UDHR is a “soft-law” document which has normative, but not legal force in the international system. The ICESCR and ICCCPR were the first of many treaties that have been enacted to give the protections identified in the UDHR the force of law.

A country ratifying a UN human rights treaty agrees to respect and implement within domestic law the rights the treaty covers. It also agrees to accept and respond to international scrutiny and criticism of its compliance. It does not necessarily agree to make the human rights norm directly enforceable in domestic courts. That usually requires implementing legislation.

Treaty enforcement is accomplished within the UN often with the creation of a body to monitor states’ performance, and to which member states are required to submit periodic reports on compliance. For instance, the ICCPR is implemented through the Human Rights Committee (HRC) which was created to promote compliance with its provisions. The HRC frequently expresses its views as to whether a particular practice is a human rights violation, but it is not authorized to issue legally binding decisions. Other treaties and bodies exist within the UN system with varying enforcement and implementation powers and duties to implement human rights goals. For the most part, these enforcement powers are weak and improvements in human rights violations are best achieved through holding offending nations to the court of international opinion rather than law.

In addition, several regional human rights regimes have been enacted that promote human rights in particular parts of the world. These regions include Europe, the Americas, and Africa which have their own declarations and conventions for enforcement of human rights on a regional basis.

Thus far no one has successfully brought a human rights claim for climate change caused damages although the Inuit Peoples filed such a claim in the Inter-American Commission on Human Rights. Before a successful human rights claim can be brought in an existing legal forum in regard to climate change, several potential legal hurdles need to be overcome that have little to do with whether a nation or an individual has committed a human rights violation. These hurdles include jurisdictional, issues, questions of proof, and authority of the relevant forum. For this reason, the failure to successfully bring legally recognized human rights claims may have little to do with whether the offending behavior has created a violation of the protected right but more with the limitation of the existing legal regime. And so, the failure to bring a successful action against the climate change disinformation campaign in an existing human rights forum does not mean the disinformation campaign is not responsible for human rights violations.

Examining climate change through a human rights lens has the benefit of providing potential access to legal fora that have been created to adjudicate aspects of human rights violations. Given that there are no obvious legal fora to bring civil actions against those who have participated in the climate change disinformation campaign, pursuing remedies for human rights violations caused by climate change has the advantage of being able to file legal claims in existing judicial fora.

Potential fora include, at the global level, the Human Rights Committee established by the International Covenant on Civil and Political Rights and the Committee on Economic, Social and
Cultural Rights established by the International Covenant on Economic, Social and Cultural Rights. Regional tribunals include the Inter-American Commission and Court of Human Rights and the
European Court of Human Rights. In addition, claims could potentially be pursued in national courts–for example, in the United States under the Alien Tort Statute.

Yet each of these fora have different jurisdictional limits on bringing legal actions on human rights basis. In this regard, a case brought on behalf of the Inuit Peoples in the Inter-American Commission on Human Rights sought to find that the United States was responsible for international human rights violations is illustrative of potential road blocks to bringing successful cases for human rights violations in existing legal rights fora.

The petition detailed the effects of rising Arctic temperatures on the ability of the Inuit to enjoy a wide variety of human rights, including the rights to life (melting ice and permafrost make travel more dangerous), property (as permafrost melts, houses collapse and residents are forced to leave their traditional homes) and health (nutrition worsens as the animals on which the Inuit depend for sustenance decline in number). The petition connected the rising temperatures to increasing levels of greenhouse gases, and in particular, to the failure by the United States to take effective steps to reduce its emissions.

In November 2006, the Commission informed the petitioners
that it had determined that “it will not be possible to process your
petition at present.” The IACHR did not explain its reasoning, stating only that “the information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of [protected human] rights.” The Commission did hold a hearing on the connection between climate change and human rights in March 2007, but it has taken no further action.

It would appear that IACHR did not believe it had the legal authority to order the specific relief requested by the petitioners, namely to issue an order to the United States to reduce its greenhouse gas emissions. And so the IACHR did not decide the case on the merits of the underlying claim that the United States had contributed to human rights violations of the Inuit people, it appeared to decline to act on the basis of legal issues about its own authority.

(B) Do the duties to prevent human rights violations bind non-state actors including corporations?

It is not clear as of yet the extent to which human rights regimes create duties for individuals and corporations, that is non-state actors. Bodansky summarizes the current state of this legal question.

[A] crucial question is whether the duties to respect, protect and fulfill apply to private actors as well as states. International criminal law demonstrates that international law can in some case impose duties directly on individuals, and some have proposed that corporations have duties to respect human rights. So, at least in theory, human rights law could impose a duty on private actors to respect human rights by limiting their emissions of greenhouse gases. But generally, human rights law – like international environmental law – imposes duties on states rather than on corporations. If this is true of climate change,then human rights law limits the activities of non-state actors only to the extent that states have a duty to protect against climate change by regulating private activities.

And so, it is not clear whether the corporations that have participated in the disinformation campaign can be sued in the various human rights tribunals, yet nations may have a duty to regulate emissions from those corporations participating in the climate change disinformation campaign under human rights theories.

(C) Are the participants in the disinformation campaign liable for contributing to human rights violations?

A final issue that needs to be overcome to successfully bring a legal action against the participants in the disinformation campaign for violating civil rights of people around the world is identifying a legal basis for concluding that the disinformation campaign unlawfully caused the violation of civil rights. Because most of the participants in the disinformation campaign are corporations that are also emitters of greenhouse gases, these corporations like all greenhouse gas emitters arguably have duties to reduce their greenhouse gas emissions to levels that in combination with other emitters do not deprive people around the world from enjoying legally protected rights. Yet it is not clear, that the tactics of the disinformation campaign alone make the participants in the disinformation campaign responsible for human rights violations by themselves.

However, most governments make it a crime for individuals to conspire to deprive people of their human rights. For instance, under US law it is a crime for persons to conspire to deprive another of the rights of an individual that has been secured by the individual through the United States Constitution or through any other laws of the United States. Although this specific law has not been tested in regard to climate change, it is generally viewed to be a breach of civil and sometimes criminal law to conspire to deprive people of their rights. As we saw in Part One of this series, the Plaintiffs in the case of Kivalina versus ExxonMobil et al asserted that the fossil fuel companies that have been part of the disinformation campaign conspired to harm the residents of Kavalina. And so there may be sufficient facts about the disinformation campaign that could form the basis of a claim that if proven could be the basis for finding responsibility for individuals participating in the climate change disinformation campaign yet only an actual case will test this possibility.

(D) Conclusions in regard to classifying the disinformation campaign as a violation of human rights.

There is little question that the more than 20 year delay in taking action on climate change in the United States for which the disinformation campaign is at least partially responsible for has prevented people around the world from enjoying a host of human rights that are now recognized in a variety of human rights regimes around the world. Yet, as was the case in categorizing the disinformation as a crime against humanity or a common law tort, there may be no existing legal remedy under existing human rights law that can be deployed to deal with the harms created by those participating in the disinformation campaign. And so once again, there may be serious deprivations of human rights caused by the disinformation campaign without legal remedies. Only time will tell whether those who have been harmed by climate change will be able to successfully bring a legal action against those engaged in the disinformation campaign for damages.

II. What Kind of Malfeasance, Transgression, Villainy, Or Wrongdoing is The Behavior of the Disinformation Campaign?

We have seen thus far from the previous analysis in this two part series that there may be no legal remedy under existing law relating to crimes against humanity, civil tort, or human rights law for the harms caused by the climate change disinformation campaign. Yet the harms attributable to the disinformation campaign are so potentially catastrophic to hundreds of millions of people around the world that laws relating to crimes against humanity, civil tort, and human rights should be amended to provide legal sanctions under these legal theories for at least for the more egregious tactics that have sometimes been deployed by some participants in this campaign.

Yet there is no doubt that some of the tactics deployed by the disinformation campaign, to be distinguished from responsible skepticism that should be encouraged, constitute some kind of malfeasance, transgression, villainy, or wrongdoing. To understand the full moral abhorrence of the disinformation campaign, a complete description of the tactics employed by the disinformation campaign is necessary and how the moral abhorrence of these tactics can be distinguished from the reasonable exercise of free speech, the right of individuals to express opinions, and the benefits to society from skeptical inquiry. Ethicsandclimate.org reviewed these issues in four articles and three videos. These prior articles explained what is meant by the disinformation campaign, distinguished the tactics of the campaign from responsible scientific skepticism which should be encouraged, and described how the disinformation campaign was funded and organized.

The four part written series can be found at:

1. Ethical Analysis of the Climate Change Disinformation Campaign: Introduction to a Series.

2.Ethical Analysis of the Disinformation Campaign’s Tactics: (1) Reckless Disregard for the Truth, (2) Focusing On Unknowns While Ignoring Knowns, (3) Specious Claims of “Bad” Science, and (4) Front Groups.

3.Ethical Analysis of Disinformation Campaign’s Tactics: (1) Think Tanks, (2) PR Campaigns, (3) Astroturf Groups, and (4) Cyber-Bullying Attacks.

4. Irresponsible Skepticism: Lessons Learned From the Climate Disinformation Campaign.

The three part video series can be found at:

Why The Climate Change Disinformation Campaign Is So Ethically Abhorrent.

The Ethical Abhorrence of The Climate Change Disinformation Campaign, Part 2.

The Ethical Abhorrence of the Climate Change Disinformation Campaign, Part 3.

We particularly recommend the first video for an overview of why the disinformation campaign is so morally abhorrent. Here it is:

This video explains how destructive the disinformation campaign has been in preventing or delaying government action to reduce the threat of climate change.

In summary, at least some of the tactics of the climate change disinformation campaign are some new kind of assault on humanity which could be dealt with under expanded legal theories about crimes against humanity, civil tort, or human rights.

The philosopher Hans Jonas argued that the potential of new technologies to create great good and great harm creates the need to establish new social norms about how to deal with scientific uncertainty. Following Jonas’ logic, the enormity of potential harms from a problem like climate change creates the need to establish new norms about the need to be extraordinarily careful about claims that there is no danger threatened by certain human activities. We have examined in the last of the four articles above, what these new norms might look like given the need to encourage responsible skepticism yet assure that assertions that there is no danger are made responsibly. Because the climate change disinformation campaign deployed tactics that were designed to undermine the scientific basis that supported taking policy action to reduce the threat of climate change and in so doing used tactics that are ethically abhorrent, the climate change disinformation campaign should be used to develop new legal and moral norms about the need to be responsible when discussing very dangerous human activities. Just as it would be morally abhorrent for someone to tell a girl who is lying on a railroad track that she can continue to lie there because no train is coming when that person did not have reliable knowledge that no train was coming while having an economic interest in the girl staying on the track, so it is deeply ethically troublesome for those engaged in the disinformation campaign to tell the US people that there is no evidence that fossil fuels are causing climate change without subjecting their claims to the rigor of peer-review.

By:

Donald A. Brown

Scholar In Residence

Sustainability Ethics and Law

Widener University School of Law

dabrown57@gmail.com

The Climate Change Disinformation Campaign: What Kind Of Crime Against Humanity, Tort, Human Rights Violation, Malfeasance, Transgression, Villainy, Or Wrongdoing Is It? Part One: Is The Disinformation Campaign a Crime Against Humanity or A Civil Tort?

I. Introduction. The French philosopher Diderot said that skepticism in all things is the first step on the road to the truth. Although responsible scientific skepticism about climate change science is a good thing that should be encouraged, as we have written about frequently on Ethicsandclimate.org, there has been a well-organized, well-funded disinformation campaign about the science of climate change that has used tactics that are deeply ethically reprehensible. In this entry we continue to explore how society should classify this very harmful development.

The tactics deployed by this campaign are now all well documented in the books and peer-reviewed sociological literature identified in the Appendix to this article. The tactics used by the climate change disinformation campaign have included the following ethically abhorrent tactics:

Lying or reckless disregard for the truth
Cherry picking the science
Cyber-bullying and ad hominem attacks on scientists and journalists
Manufacturing bogus, non-peer-reviewed science in ideological organized conferences and publications that don’t subject conclusions to peer-review
The use of ideological think tanks to promote the views of ideological skeptics
The use of front groups and fake grass-roots organizations known as Astroturf groups that hide the real parties in interests
Specious claims about “bad science” that are based upon the dubious assumption that no conclusions in science can be made until everything is proven with high levels of certainty

These tactics obviously do not constitute responsible scientific skepticism but disinformation, misinformation, propaganda, and even intimidation in the case of cyber-bullying.

EthicsandClimate.org has described this disinformation campaign in a four part paper series and a three part video series that has examined these ethically abhorrent tactics in considerable detail.

The four part written series can be found at:

1. Ethical Analysis of the Climate Change Disinformation Campaign: Introduction to a Series.

3.Ethical Analysis of Disinformation Campaign’s Tactics: (1) Think Tanks, (2) PR Campaigns, (3) Astroturf Groups, and (4) Cyber-Bullying Attacks.

4. Irresponsible Skepticism: Lessons Learned From the Climate Disinformation Campaign.

The three part video series can be found at:

Why The Climate Change Disinformation Campaign Is So Ethically Abhorrent.

The Ethical Abhorrence of The Climate Change Disinformation Campaign, Part 2.

The Ethical Abhorrence of the Climate Change Disinformation Campaign, Part 3.

In this entry we continue to examine how we should classify this kind of disinformation, an important question because the disinformation campaign is, we believe, a new kind of assault on humanity which raises questions about how we should classify it and how society should sanction disinformation about potentially very harmful human behavior. We first examine the basis for claiming that the disinformation campaign is a crime against humanity.

II. Crime Against Humanity

Because the international community has lost over twenty years in developing an adequate solution to climate change, a matter discussed in considerable detail in this writer’s recent book Climate Change Ethics, Navigating the Perfect Moral Storm, in no small measure due to the climate change disinformation campaign and given that the international community is now running out of time because of this delay to prevent dangerous climate change, the disinformation campaign is likely responsible for huge quantities of human suffering. That is this delay is causing or increasing the severity of droughts, floods, adverse human health impacts, intense storm damage, and heat related deaths among others adverse impacts. Without doubt the failure to act in the last twenty years is putting hundreds of millions of people at great risk including some the world’s poorest people and the ecological systems on which their lives depend.

Given the scale of these impacts, what sense can be made of a claim that the tactics of the disinformation campaign (to be distinguished from responsible scientific skepticism) is some new kind of crime against humanity.

Crimes against humanity are understood to be grave offenses that are part of a widespread or systematic attack against a civilian population.

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity, and war crimes. The definition of what is a “crime against humanity” are contained in Article 7 of the Rome Statute which says that:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Thus far only these very odious acts have been recognized as crimes against humanity. Furthermore only crimes that have been committed in nations that have consented to the jurisdiction of the International Criminal Court (ICC) may be prosecuted in the ICC. Because the United States has not consented to the ICC and many of the activities of the disinformation campaign have taken place in the United States, it is not likely that fossil fuel companies who have participated in in the disinformation campaign could be prosecuted for a crime against humanity even if the court construes the tactics of the disinformation campaign as “inhumane acts of a similar character intentionally causing great suffering.” Furthermore it is not clear that the disinformation campaign constitutes a “systematic attack against a civilian population” as defined in the ICC statute. Therefor although the disinformation campaign can be understood as a new kind of assault on humanity, it does not obviously fit the definition of crime against humanity under the ICC.

And so, although a strong case can be made that the intentional acts of those participating in the disinformation campaign are metaphorically some kind of new crime against humanity, it is not likely that these acts would be construed to be legally prosecutable as crimes against humanity under existing international law.

Before accusing someone of a crime, it is also necessary to be able to prove that they knew or should have known that that they were misleading people in ways that could cause damage or harm. One might ask whether anyone engaging in the tactics discussed in this series on the disinformation campaign is ethically blameworthy. Some skeptics, for instance, who engage in the ethically dubious practice of stressing unknowns while ignoring the large body of well-settled science are simply expressing their opinions or their interpretations of what they know about the science. If people have a right to free speech, it follows that people should be able to express their views on climate science freely, even if their views are based upon incomplete knowledge of the peer-reviewed science on which the consensus view has been based.

Yet there is abundant evidence that some of those participating in climate change disinformation campaign were being advised by scientists advising them that the mainstream scientific view was entitled to strong scientific respect, yet they persisted in spreading claims that there was no scientific basis for concern about human-induced climate change.

Furthermore, those funding the disinformation campaign consistently funded organizations and individuals that were regularly making demonstratively false claims about the state of climate change science or claims made in reckless disregard for the truth.

And so, some of the activities of those engaged in the disinformation campaign could likely be prosecuted on criminal grounds provided a court had jurisdiction to make criminal determinations in such matters under a law that criminalized known false claims about very dangerous behavior. Given the immensity of the harm from the climate change disinformation campaign, a case can be made that new laws criminalizing disinformation on matters as dangerous as climate change are warranted where the disinformation is transmitted to protect economic interests.

III. Civil Liability Under Common Law for Disinformation

A tort is a violation of civil duties, that is a tort, in common law jurisdictions, is a civil wrong. Tort law deals with situations where a person’s behavior has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but an act that causes harm. The law allows anyone who is harmed to recover their loss.

We begin with a specific case, Kivalina vrs ExxonMobil Corporation, because although this case has now been dismissed, the plaintiffs in this case set out in the complaint assertions they claimed they could prove about the actions of the defendants actions, the majority of which were fossil fuel companies, that are are relevant to to the disinformation campaign.

Kivalina v. ExxonMobil Corporation, et al. is a lawsuit filed on February 26, 2008 in a US district court asking for climate change damages from flooding to the Alaskan village of Kavalina. This case has subsequently been dismissed by the US Court of Appeals for the Ninth Circuit in October of 2012 on the basis that climate change raises political issues that need to be decided by legislative action rather than by a court.

Nevertheless, the allegations made by the plaintiff, an Alaskan village, asserted that some of the defendants including ExxonMobil Corporation, BP America, Inc., Chevron Corporation, ConocoPhillips Company, Peabody Energy Corporation, American Electric Power Company, Inc, Duke Energy Corporation, and The Southern Company, conspired to misinform the public on the science of climate change either individually or through their various front groups or industry trade associations. The complaint in this case further asserted that the object of the conspiracy was to create unwarranted doubts about the existence of global warming and its causes among the public and that the defendants did this to protect their economic interests.

The plaintiffs also claimed that some of the defendants have conspired to mislead the public about the science of global warming creating flooding harms to the Village of Kivalina.

The plaintiffs alleged that the defendants also funded “front groups,” including phony citizens’ organizations and bogus scientific bodies, to regularly publish views expressing doubts about global warming in mainstream publications such as the Wall Street Journal. The plaintiffs also alleged that the defendants funded and circulated misleading advertising which questioned the “science” of global warming and human causation. The plaintiffs also alleged that defendants coordinated a “skeptics campaign” that include funding for energy industry groups and other public policy organizations which voiced skepticism regarding global warming, creating the appearance of numerous independent voices speaking out against global warming.

The plaintiffs further claimed that the defendants engaged in a civil conspiracy by and through agreements to participate in the intentional creation, contribution to and/or maintenance of a public nuisance through global warming by undermining the public’s understanding of climate change science.

The plaintiffs also alleged that the fossil fuel companies were being told by scientists that were advising them that climate change was a serious threat, yet they continued to fund projects which sought to undermine the science.

The court finally dismissed the case on the ground that the “the solution to Kivalina’s dire circumstances must rest in the hands of the legislative and executive branches of our government, not the federal common law.” Kivalina may be the last blow for parties that are seeking to address climate change via the federal common law. Kivalina was the last in a series of cases seeking to recover damages from climate change under theories of liability for a public nuisance. These other cases also have been dismissed on the grounds that climate change liability is a matter that must be resolved by legislatures not courts. The opinion in the Kivalina case makes it clear that both abatement actions and monetary damage actions pertaining to greenhouse gas emissions have been displaced by the Clean Air Act. Most observers have concluded that public nuisance litigation in the future will likely be litigated in the states, where common law public nuisance actions are still viable although efforts to address climate change via state common law have been unsuccessful (at least so far).

The apparent reasoning followed by the court in this case is that there is no right to damages from climate change under the theory of public nuisance in federal courts because climate change emissions now must be regulated under the federal Clean Air Act. In other words, federal statutory law has preempted the way in which greenhouse gas emissions will be regulated and the penalties that will be allowed for excess emissions. Such a decision is not understood to conclude that the defendants have not been harmed by the conspiracy of the defendants to mislead the public, only that there is no right to recover damages from this harmful behavior in US federal courts using common law tort theories.

And so the tactics employed by fossil fuel companies to undermine the public’s understanding of mainstream scientific conclusions about climate change may be a wrong without a civil remedy for damages under common law, at least in the United States. It is not clear, however, that civil liability for disinformation may not be adjudicated in courts outside the United States. Only time will tell.

Because climate change damages are likely to be so catastrophic for some people in some places, a case can be made that governments should create statutes that would impose severe financial penalties on parties that spread false information about very harmful behavior such as spreading misinformation about climate change.

Part II in this series will look at other legal theories for responding to the disinformation including human rights theories.

IV Conclusion

Thus far we have shown that although the climate change disinformation campaign is equal in destructive power to many human activities that are classified as crimes against humanity, yet the current international legal regime for prosecuting crimes against humanity does not provide an adequate remedy for climate change caused damages that have been caused by those participating in the disinformation campaign. This is so despite the fact that there is strong evidence that at least some of those participating in the disinformation campaign knew or should have known that they were spreading false information about the enormous threat of climate change and did so to protect economic interests.

We have also seen, there appears to be no civil law remedy for damages that tens of millions will experience at least in part because of tactics of the disinformation campaign. Yet a strong case can be made that there should be some civil legal remedy for those who have been harmed by the those responsible for the disinformation campaign.

By:

Donald A. Brown

Scholar In Residence, Sustainability Ethics and Law

Widener University School of Law

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Ethics and Climate

Donald Brown

Ethical Issues with Relying on Natural Gas as a Solution to Climate Change

Why US States Have A Duty To Reduce Their Emissions to Their Fair Share of Safe Global Emissions: The Case of Pennsylvania.

Agenda 21: A Guide for the Perplexed: Disinformation Campaign About Sustainable Development Emerges In the United States

Agenda 21: A Guide for the Perplexed

On The Practical Need To Examine Climate Change Policy Issues Through An Ethical Lens

A video: Why Politicians May Not Rely On Their Own Uninformed Opinion On Climate Change Science.

Why Politicians May Not Ethically Rely on Their Own Uninformed Opinion About Climate Science and 10 Questions That The Press Should Ask Politicians About Climate Science In Light of This Responsibility.

A short video : Can The United States Justify Its Unwillingness to Reduce Its GHG Emissions on the Basis of US Economic Interest Alone?

The Climate Change Disinformation Campaign: What Kind Of Crime Against Humanity, Tort, Human Rights Violation, Malfeasance, Transgression, Villainy, Or Wrongdoing Is It? Part One: Is The Disinformation Campaign a Crime Against Humanity or A Civil Tort?