by Hardwick Legal | Dec 1, 2017 | Purpose Built (LexisNexis)
Sebastien Korwin, an international environmental lawyer and senior legal and policy advisor for Climate Law and Policy (CLP), reports on the outcomes of the 23rd meeting of the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change UNFCCC, including how the UK contributed to developments.
This Analysis was originally published on Lexis®PSL Environment. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.
How has the political landscape changed since the previous Conference of the Parties (COP 22) and what were the main challenges faced by the delegates?
COP 23 of the UNFCCC was held from 6 to 17 November 2017 in Bonn, Germany, under the presidency of the government of Fiji. So far, 170 parties have ratified the Paris Agreement, which was agreed at COP 21 in Paris in December 2015. Syria, embroiled in a civil war since 2011, became a signatory on 7 November 2017.
In June 2017, US President Donald Trump announced that he would pass legislation to take the US out of the Paris Agreement. Legally, the US must wait until 2020 to officially withdraw, meaning that for the duration of Trump’s term in office the US will continue to be present during the UNFCCC negotiations. Secretary of State and ex-CEO of ExxonMobil, Rex Tillerson, has indicated that the US will continue engaging in the talks in order to protect its interests.
In reaction to the US federal government’s stance, American governors, mayors and business leaders have recently formed a sub-national coalition, referred to as the ‘We Are Still In’ coalition. Informally led by Governor Jerry Brown of California, Michael Bloomberg, the former mayor of New York, and Governor Jay Inslee of Washington, the group has vowed to uphold the Paris Agreement and move ahead with policies to fight climate change.
Since President Trump’s declaration, others have taken up the climate leadership role. In Europe, Chancellor Angela Merkel of Germany and President Emmanuel Macron of France have vowed that the Paris Agreement will flourish without the US. President Xi Jinping of China and the Canadian Prime Minister, Justin Trudeau, are promoting their countries as climate change champions.
The Paris Agreement established the principles and framework of the new international climate regime, and over the coming years the details that will make this framework a reality need to be fleshed out. The Paris Agreement is based on a bottom-up approach to emission reduction commitments, with individual countries making pledges to cut their respective carbon emissions, known as nationally determined contributions (NDCs).
However, current pledges, even if fully implemented, would still result in at least 3°C of global warming. Although COP 23 was largely technical in nature, many of the discussion were highly sensitive politically. Key challenges for delegates include making further progress on pre-2020 climate actions, increasing the ambition of NDCs and developing the Paris ‘rulebook’. Additional challenges included how to make progress on the issue of ‘loss and damage’ and most controversial of all, on climate finance.
What were the key outcomes of this year’s conference?
Pre-2020 action
One of the most significant conflicts emerging in the early days of the meeting is linked to pre-2020 action. This centres on concerns from developing countries that rich countries are not doing enough to meet the emission reduction commitments made for the period prior to the implementation of the NDCs, which apply post-2020. Even if these commitments were to be fully implemented, they would still lead to a pre-2020 am-bition gap (the difference between current commitments and the amount of emission reductions needed to meet the 1.5°C target).
Initially not on the COP 23 agenda, following complaints from developing countries including India and China, pre-2020 ambition and implementation was included in the COP 23 decision text. The decision established a process of review and enhancement of pre-2020 actions, including a ‘stock-taking’ session at COP 24 and again at COP 25 to track and report on the progress of developed countries’ pre-2020 commitments to reduce emissions and to provide finance and technology to support developing countries.
Increasing ambition
Parties in Paris agreed that there should be a global ‘stock take’ in 2018 to review the progress made on climate action to date, with the intention that this information should be used to inform the following round of NDCs, due in 2020. This global stocktake will lead to the establishment of a mechanism to regularly review and increase ambition every five years. This is known as the Paris Agreement’s ‘ratchet mechanism’.
Under the Fijian COP presidency, the 2018 global stock take (previously referred to as the facilitative dialogue) was re-named ‘Talanoa dialogue’, reflecting a traditional approach to discussions used in Fiji. The COP 23 decision states that ‘the dialogue should not lead to discussions of a confrontational nature in which individual parties or groups of parties are singled out.’ The dialogue will be structured around three general topics:
• where are we?
• where do we want to go?
• how do we get there? Importantly, the dialogue will be informed by the IPCC Special Report on global warming of 1.5°C, which is due to be published in October 2018.
Development of the Paris ‘rulebook’
Negotiations in Bonn heavily focused on trying to make progress on developing the Paris ‘rulebook’, that is, the technical rules and processes needed to meet the Paris Agreement’s goals. These discussions are overseen by the ad-hoc working group on the Paris Agreement (APA). Its work covers several areas, including NDCs, how to report on adaptation efforts, defining the information to be reported in the ‘global stocktake’ in 2023, and how to monitor compliance with the Paris Agreement.
The COP 23 outcome text recognises that additional negotiating time may be needed to ensure the completion of the Paris rulebook by COP 24 and makes provision for an additional session to be organised between May and December 2018. The decision will be made during May’s scheduled intersessional meeting depending on the progress made there (or lack thereof), with August/September 2018 being the likely time for this to take place.
Loss and damage
The Paris Agreement includes a section recognising the importance of averting—and addressing—the loss and damage caused by climate change. The absence of loss and damage from the workstream to develop the Paris rulebook, despite demands from developing countries that new additional finance will be needed for loss and damage (that is, in addition to the finance needed for NDC implementation, adaptation and reporting) was also a sticking point at the COP.
Discussions on loss and damage took place under a technical workstream called the Warsaw International Mechanism (WIM). Originally agreed in 2013 at COP 19 in Warsaw, the WIM is separate workstream to the APA discussions, with its own executive committee. At the COP, the WIM agreed on a five-year rolling work-plan but has yet to bring forward any concrete plans on finance, the main difficulty in the loss and damage discussions. A one-off ‘expert dialogue’ was also agreed for the May intersessional in 2018, which will inform the next review of the WIM in 2019.
Agriculture
One notable outcome from the conference this year was the end of a deadlock on agriculture which had lasted for years. Parties agreed to work over the next few years on a series of issues linking climate change and agriculture. They agreed to streamline two separate technical discussions on this topic into one process. Countries have now been asked to submit their views on what should be included in the work by 31 March 2018, with options including how to improve soil carbon and fertility, how to assess adaptation and resilience and the creation of better livestock management systems.
Finance
Like at most previous COPs, the issue of climate finance was the source of major disagreements in Bonn, both in relation to pre-2020 ambition and to the implementation of the Paris Agreement itself. Many developing country NDCs include conditional pledges (based on the availability of financial support from developed countries), which means that discussions on the scale and predictability of climate finance cannot easily be separated from discussions on increasing climate ambition (discussed under the Talanoa Dialogue as high-lighted above). This contrasts with the views of developed countries, who prefer to keep the discussions separate.
Unsurprisingly, discussions on how much finance developed countries intend to provide biennially (as required under Article 9.5 of the Paris Agreement) extended into the early hours of Saturday 18 November 2017 (well past the official end time of COP 23). In the end, the COP 23 decision text kicks the can down the road, leaving COP 24 to decide how ex-ante finance will be addressed, with extra time allowed for discussion during the intersessional meetings between now and COP 24.
How did the UK contribute to the discussions and outcomes?
Prior to COP 23, the UK government published its Clean Growth Strategy (October 2017), which maps out how the UK plans to meet its emission reduction goals set out under the Climate Change Act 2008 (a reduction of at least 80% below its 1990 baseline by 2050). The strategy includes a commitment to phase out the use of ‘unabated’ coal in energy production by 2025 and a continued emphasis on increasing offshore wind production.
Building on this key development, the UK, along with Canada and the Marshall Islands launched the ‘Powering Past Coal’ alliance at COP 23, inviting governmental entities from around the world to phase out dirty coal power plants. The new alliance was launched with a letter signed by Claire Perry, UK Climate Change and Industry Minister, Catherine McKenna, Canadian Minister of Environment and Climate Change and John Silk, Marshall Islands’ Minister for Foreign Affairs and Trade. Members of the alliance commit to phase out existing traditional coal power plants in their jurisdictions and to restrict legally and financially the construction of new coal plants that will not come with carbon capture and storage (CCS) technologies. So far, 27 countries and states have joined the alliance, including Austria, Belgium, Denmark, Finland, France, Italy, Luxembourg, Mexico, New Zealand, Portugal, and Switzerland. The coalition aspires to expand its signatories to 50 by the beginning of COP 24.
The UK government also committed to double its 2017 funding to the Intergovernmental Panel on Climate Change at the COP.
What are the next steps following the close of COP 23?
With the conclusion of COP 23, a busy 2018 is anticipated, with the Talanoa dialogue, the completion of the Paris rulebook (including a possible additional intersessional), the submission of views on agriculture, the expert dialogue on the WIM and the continuation of discussions on finance.
Are there any other points of interest worth mentioning here?
In parallel to the governmental negotiations, another conference was held in a temporary structure on the UN campus, bringing together civil society representatives, academia, think tanks, indigenous peoples’ groups and representatives of the private sector.
Of particular note (and of interest to legal practitioners) was a panel organised by the Heinrich Böll Foundation, where climate activists and legal professionals discussed how, in light of the perceived failures of international climate policy, litigation is becoming an increasingly important part of the strategy to hold climate polluters financially accountable for the damage they’ve caused (and therefore accelerating climate action).
Several hundred climate-related lawsuits have been filed in the past 20 years, with plaintiffs having already won significant battles, including in the Netherlands, where a court ordered the government to cut green-house gas emissions to protect a liveable climate in a ruling known as the Urgenda decision. The proliferation of such cases around the world have the potential to fundamentally change the political and economic landscape, driving investment away from fossil fuels and increasing climate ambition.
CLP is a research and advisory organisation that aims to contribute towards national and global environmental sustainability through advances in environmental governance. Sebastien leads CLP’s work in international policy fora, including the UNFCCC and CITES (the Convention on International Trade in Endangered Species of Wild Fauna and Flora). He also provides strategic and technical advice to governments, civil society organisations as well as multilateral institutions such as the UN and the World Bank, particularly in the field of forest and natural resource governance.
Source: LexisNexis Purpose Built
What are the outcomes of the COP 23 climate conference?
by Hardwick Legal | Nov 22, 2017 | Purpose Built (LexisNexis)
Chancellor of the Exchequer, Philip Hammond delivered his first Autumn Budget on 22 November 2017, after annual Budget announcements moved to publication in Autumn, rather than Spring. The LexisPSL Planning and Construction teams bring together the most important features for the infrastructure and housebuilding sectors.
The full text of the Autumn Budget 2017 is available here.
What are the Budget’s headlines for infrastructure and housebuilding?
Infrastructure
Much was said about existing efforts to invest in infrastructure: Crossrail and HS2 were mentioned as specific examples of how the government is supporting infrastructure growth. New announcements include:
- an increase in the National Productivity Investment Fund from £23bn to £31bn, to support innovation, upgrade infrastructure and underpin the government’s modern Industrial Strategy
- an update to the National Infrastructure and Construction Pipeline in December 2017, setting out a 10 year projection of public and private investment in infrastructure of around £600bn (this update had previously been expected in early 2017, see: LNB News 23/11/2016 87)
- use of the government’s purchasing power to drive adoption of modern methods of construction, such as offsite manufacturing (the Department for Transport, the Department of Health, the Department for Education, the Ministry of Justice, and the Ministry of Defence will adopt a presumption in favour of offsite construction by 2019 across suitable capital programmes)
- a programme for new homes and infrastructure in the Cambridge-Milton Keynes-Oxford corridor. This follows the National Infrastructure Commission’s (NIC) report on this topic published on 17 November 2017 (see: LNB News 20/11/2017 41)
- backing for the Northern Powerhouse and Midlands Engine with a new £1.7bn Transforming Cities fund, half of which be shared by the six areas with elected metro mayors to be spent on delivering local transport priorities, the remainder open for competition by other cities in England
- investing £300m to ensure HS2 infrastructure will accommodate future Northern Powerhouse and Midlands Engine rail improvements
- a new NIC study on the future of freight infrastructure, to be published in spring 2019
- support for electric vehicles in the form of a new £400m charging infrastructure fund, an extra £100m plug-in car grant and an additional £40m for charging research and development
- a new £200m clean air fund funded by additional taxes on diesel cars
- introduction of a VAT domestic reverse charge to prevent VAT losses (following a consultation into options for tackling fraud in construction labour supply chains)
In relation to Crossrail 2, which had not been referred to at all in the Spring Budget this year, the Chancellor said:
The government recognises the need for investment in London’s infrastructure to support its growth, and will continue to work with Transport for London on developing fair and affordable plans for Crossrail 2, including through an independent review of funding and financing.
Housebuilding
The Chancellor identified that the number of young people owning their own homes has dropped from 59% to 38%. He recognised that despite housebuilding standing at its highest rate since the last financial crisis, fixing the housing market will require spending money, planning reforms and intervention. In terms of financial commitments, the government will:
- spend, over the next five years, a total of at least £44bn of capital funding, loans and guarantees to support the housing market and boost the supply of skills, resources and building land and create the financial incentives to deliver at least 300,000 net additional homes a year on average by the mid 2020s
- invest an additional £1.5bn in the Home Building Fund, providing loans specifically targeted at supporting SMEs who cannot access the finance they need to build
- invest £630m in a small sites fund, to pay for infrastructure and remediation to unstick the delivery of small, stalled sites with capacity to deliver 40,000 homes
- invest a further £2.7bn to more than double the housing infrastructure fund
- spend £400m of loan funding for more for estate regeneration to transform run-down neighbourhoods and provide more homes
- commit £1.1bn fund to unlock strategic sites, including new settlements and urban regeneration schemes
- lift Housing Revenue Account borrowing caps for councils in high demand areas, to help them build more social housing—councils will be able to bid for increases in their caps from 2019-20, up to a total of £1bn by the end of 2021-22
- commit £8bn of financial guarantees to support private housebuilding and the private rented sector
- provide an addition £34 m to develop construction skills
- bring together public and private capital to build five new garden towns, using appropriate delivery vehicles such as development corporations, including in areas of high demand such as the South East
Planning reforms were promised. The focus will be on:
- making best use of urban areas where people want to live and most jobs are created. Green belt protections will continue. High quality and high density development in city centres and around major transport hubs will be supported; an announcement for the Secretary of State for Communities and Local Government will set out more detail on how councils in high demand areas will grant more permission for local first time buyers and affordable renters
- closing the gap between the number of planning permissions granted and the number of homes delivered by carrying out an urgent review of the reasons for this. An interim report will be published in spring 2018. If this finds that land is being held back from the market for commercial rather than technical reasons, direct interventions (including through compulsory purchase if necessary) will follow to ensure the incentives change to ensure such land is brought forward for development
- funding and delivering infrastructure to support higher density development, by expanding the Homes and Communities Agency into a new body, called Homes England, which will bring together funding, planning and compulsory purchase powers with a clear remit to facilitate delivery of sufficient new homes where they are most needed to deliver a sustained improvement in affordability
- providing an addition £1.1bn for a new Land Assembly Fund which will enable Homes England to work alongside private developers to develop strategic sites, including new settlements and urban regeneration schemes
- consulting on developer contributions, which will propose: removing restrictions on section 106 pooling, speeding up the process of setting and revising the Community Infrastructure Levy (CIL) to allow authorities to set rates which better reflect the uplift in land values between proposed and existing uses, and changing indexation of CIL rates to house price inflation (rather than build cost)
The government will also support more strategic and zonal planning approaches through housing deals in the South East, where housing need is at its most acute. A housing deal with Oxfordshire has been announced, part of its wider strategic investment in the Cambridge-Milton Keynes-Oxford corridor, where Oxfordshire will bring forward for adoption a joint statutory spatial plan and commit to a target of 100,000 homes by 2031, in return for a package of government support over the next five years, including £30m a year for infrastructure and further support for affordable housing and local capacity.
The government is also continuing housing deal negotiations with Greater Manchester, the West Midlands, Leeds and the West of England.
Additionally, pledges were made to:
- introduce legislation to allow councils to charge a 100% council tax premium on empty properties
- consult on barriers to longer tenancies in the private rented sector, and how landlords can be encouraged to offer longer tenancies to tenants who want the extra security
- invest £28m in three new pilot schemes to reduce homelessness in the West Midlands, Manchester and Liverpool, and establish a new homelessness task force to half rough sleeping by 2022 and eliminate it by 2027
Our overall verdict
Support in terms of spending on critical infrastructure will be widely welcomed and provide confidence that the infrastructure sector is underpinned by government support. Equally positive is the recognition in the Autumn Budget 2017 that infrastructure provision leads to economic growth and regeneration, with a heavy focus on areas outside of London benefitting from investment. Also of interest is the government’s support for the adoption of modern construction techniques (for example offsite construction)—while it falls short of a mandate (as has been the case for the use of building information modelling) for offsite construction, such a move is nonetheless progressive.
The financial commitments to support housebuilding will no doubt be well-received, although as perhaps expected, much of the focus is on building new homes to enable young people to become home owners and there is little other than financial guarantees and a promise to look at longer tenancies for long-term renters and the private rented sector generally. Large house-builders will not welcome the underlying allegations that land-baking is holding back delivery and it is frustrating that a further consultation on CIL is promised, given the wide-ranging CIL Review carried out in 2015/2016. Announcements on planning reform and intervention are also very thin on detail, and while the expansion of the Homes and Communities Agency is a positive move, it already possesses compulsory purchase powers, so it is unclear how it will now be incentivised to use those powers to drive up delivery.
Source: LexisNexis Purpose Built
The Autumn 2017 Budget—infrastructure and housebuilding announcements
by Hardwick Legal | Nov 15, 2017 | Purpose Built (LexisNexis)
In Gladman v SCLG, the court dismissed a challenge to an inspector’s decision to dismiss plans for up to 330 homes in Kent over air quality concerns, where an adverse effect on an Air Quality Management Area (AQMA) was demonstrated. The inspector had made clear that he understood that the government had to achieve compliance with the Air Quality Directive by the earliest possible date, but was not required to assume that local air quality would improve by any particular amount within any particular timeframe.
This Analysis was originally published on Lexis®PSL Planning. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.
What is the significance of the decision for authorities and developers?
The decision may be useful for local planning authorities, developers and objectors where an adverse effect on an AQMA has been identified.
Whether or not air quality is relevant to a planning decision will depend on the proposed development and its location. Concerns may arise where the development is likely to adversely impact upon the implementation of air quality strategies and action plans and/or lead to a breach of EU legislation, such as the Air Quality Directive 2008/50/EC.
The Gladman case is time-specific, in that the inspector did not know the likely contents of the National Air Quality Plan, which, in future, decision-makers will have to refer to in terms of ensuring that national measures relate to local measures, and what the ‘soonest date possible’ for securing compliance with the Air Quality Directive will be.
It is also worth noting that in this case, the judge considered that the financial contributions to mitigate adverse impacts on air quality ‘had not been shown to translate into actual measures likely to reduce the use of private petrol and diesel vehicles and hence reduce the forecast NO2 emissions’. Therefore if developers propose to use the DEFRA damage-cost model to calculate reasonable contributions to mitigate identified adverse impacts on air quality, they should ensure that such contributions translate into actual measures which reduce NO2 emissions.
What is the factual background to the case?
The claimant, Gladman Developments Ltd, applied pursuant to section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision in two conjoined appeals against refusals of planning permission for residential development for 330 dwellings plus 60 extra care units.
At the inquiry into those appeals, the inspector agreed with CPRE (Kent), who appeared as a Rule 6 Party, that the appeal should be dismissed due to a failure to mitigate the adverse effects on the designated Newington and Rainham AQMAs.
The claimant had proposed to fund measures to mitigate the adverse impacts of the developments on both AQMAs, whereby contributions were calculated using the DEFRA Emission Factors Toolkit and secured by unilateral undertakings. However, the inspector concluded that there was no evidence of the likely effectiveness of such mitigation measures to reduce NO2 emissions.
What were the grounds of claim?
Among other grounds of challenge, the claimant argued that the inspector erred in:
- failing to understand and apply the outcome of R(Client Earth (No.2)) v SSEFRA [2016] EWHC 2740 (Admin.), that the government had been ordered to produce a plan, at the earliest possible opportunity, which secured compliance with the Air Quality Directive at the earliest possible opportunity and, in any event, before 2020
- failing to give effect to the principle that the planning system presumes that other schemes of regulatory control are legally effective
- failing to explain why application of the DEFRA damage cost analysis and associated contribution was not likely to be effective
- failing to consider the imposition of a Grampian condition requiring a higher contribution to the mitigation fund
Why did the court dismiss the challenge?
Application of Client Earth case
The inspector had made clear in his decision that he understood that the government had to achieve compliance with the Air Quality Directive by the earliest possible date. He was not required to assume that local air quality would improve by any particular amount within any particular timeframe.
It was not known at the time of the inquiry what measures the new draft National Air Quality Plan would contain, let alone what the final version would contain following public consultation. It followed that the inspector did not know how any new national measures would relate to local measures, nor did he know what would be ‘the soonest date possible’ that the new National Air Quality Plan would aim to achieve compliance by. Therefore the inspector could not reach any view as to whether the measures in the new National Air Quality Plan would be likely to be effective in securing compliance by any particular date.
Mr Justice Supperstone concluded that the inspector had properly engaged with the Client Earth (No.2) decision, understood what the case required and formed a judgment as to what the air quality was likely to be in the future on the basis of evidence presented to him. He was entitled to consider the evidence and not simply assume that the UK would soon become compliant with the Directive.
Effectiveness of other schemes of regulatory control
The claimant referred to paragraph 122 of the NPPF in arguing that the inspector had failed to give effect to the principle that the planning system presumes that other schemes of regulatory control are legally effective. Para 122 states that:
‘local planning authorities should focus on whether the development itself is an acceptable use of the land, and the impact of the use, rather than the control of processes or emissions themselves where these are subject to approval under pollution control regimes. Local planning authorities should assume that these regimes will operate effectively. Equally, where a planning decision has been made on a particular development, the planning issues should not be revisited through the permitting regimes operated by pollution control authorities.’
The court held that paragraph 122 of the NPPF was not engaged in the consideration of air quality. Paragraph 122 concerned situations where a polluting process was subject to regulatory control under another regulatory scheme in addition to the planning system and was directed at a situation where there was a parallel system of control, such as in the case of Gateshead MBC v Secretary of State for the Environment [1995] Env LR 37. The planning system should not duplicate those other regulatory controls, but instead assume that they will operate effectively. In this case, there was no separate licensing or permitting decision that would address the specific air quality impacts of the claimant’s proposed development.
Effectiveness of DEFRA damage cost analysis
It was clear from the evidence presented and questions asked by the inspector that the likely effectiveness of the mitigation measures was a live issue at the inquiry. The inspector was required to reach his own judgment on the matter and reached a conclusion that on the evidence he was entitled to reach, explaining what was wrong with the mitigation. The financial contributions had not been shown to translate into actual measures likely to reduce the use of private petrol and diesel vehicles and hence reduce the forecast NO2 emissions.
Consideration of Grampian condition
The court rejected the submissions that the inspector should have considered the use of a Grampian condition when it had not been suggested by the claimant. Inspectors did not have an obligation to ‘cast about for conditions that are not suggested’ to them. The inspector was entitled to take the claimant’s two unilateral undertakings as the claimant’s settled position in respect of mitigation. In addition, in the light of the inspector’s finding as to the lack of evidence as to the effectiveness of the proposed mitigation measures, it was questionable whether such a condition could lawfully have been imposed.
Source: LexisNexis Purpose Built
Court upholds refusal of planning permission over air quality concerns
by Hardwick Legal | Nov 6, 2017 | Purpose Built (LexisNexis)
The UN Framework Convention on Climate Change (UNFCCC)’s 23rd Conference of Parties (COP23) begins on 6 November 2017 in Bonn, Germany. This post explores the context, agenda and hopes for COP 23.
Context
The United States’ intended withdrawal from the Paris Agreement is the ghost at the feast at COP23, with its formal notice of withdrawal submitted to the UN in August 2017 and resulting fears that this heralds the abdication of American leadership on global climate change efforts. For more on the Paris Agreement, see our previous post: “Between zero and sum” — The Paris Agreement opens for signature.
However, the sense of political urgency ignited during the Paris Agreement talks has not diminished.
COP23 launches amidst a raft of sobering climate change headlines. On the same day as the talks begin, the World Meteorological Organisation (WMO) announced that 2017 is ‘very likely’ to be one of the three hottest years on record, with many of the high-impact extreme weather events over recent months ‘bear[ing] the tell-tale sign of climate change caused by increased greenhouse gas concentrations from human activities.’ Another WMO report detailing a ‘record-breaking’ surge in atmospheric carbon dioxide emissions was published at the end of last month, the day before the UN stated in its annual Emissions Gap report for 2017 that that the gap between the Nationally Determined Contributions (NDCs) and the reductions needed to meet the Paris Agreement pledges were ‘alarmingly high’.
It is clear that COP23 will have to ensure that gap is closed as much as possible.
The role of small island states
The Fijian Prime Minister stated in his opening remarks to COP23 that he brings a ‘collective plea for the world to maintain the course we set in Paris’.
Although being held in Bonn, COP23 is being chaired by Fiji, on behalf of small island states. It is also the first time that a small island state has held this post. Bearing in mind that it was the leaders of small island states during the COP 21 negotiations who urged strongly for a 1.5°C limit to world temperature increases to give their vulnerable lands a chance of survival from warming oceans and rising sea levels, this leadership role is particularly significant.
An agenda of ambition and inclusivity
In his opening remarks, the Fijian Prime Minister was direct about his hopes for COP23:
“We must not fail our people. That means using the next two weeks and the year ahead to do everything we can to make the Paris Agreement work and to advance ambition and support for climate action before 2020.
To meet our commitments in full, not back away from them. And to commit ourselves to the most ambitious target of the Paris Agreement. To cap the global average temperature at 1.5 degrees Celsius over that of the pre-industrial age.”
In order to do so, the agenda for COP 23 is wide-ranging. Time is dedicated for discussion of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts, climate-finance, and capacity building. Mitigation and adaptation remain, again, pressing topics for dialogue and co-operation.
However, money and technology are not the only matters on the table. Gender and climate change is also an official issue for conversation, highlighting the societal impacts of climate change as well as the physical effects.
There will also be a progress check on the Climate Finance Roadmap agreed under the Paris Agreement (the delivery of $100 billion of support by developed countries for developing countries by 2020), and the bringing into force of the Doha Amendment (which establishes the second commitment period under the Kyoto Protocol).
Uniting for the climate
The mood and focus at COP23 is one of getting heads down and getting the job done. The EU has stated that it expects COP23 to demonstrate ‘clear progress on the development of the technical rules and guidelines for implementing the provisions of the Paris Agreement’, echoing the sentiments of the International Emissions Trading Association (IETA). Additionally, the conference itself is leading by example such as taking steps, including by offsetting carbon emissions, to make the conference fully climate neutral.
The potential loss of the United States has spurred Nicaragua, who had previously criticised the Paris Agreement for not going far enough, to formally accede. Although President’s Trump decision was disappointing, it has clearly not fractured the multilateral resolve and momentum that emerged from COP21 to take decisive action against the fundamental causes of climate change, in tandem with respecting climate science. It demonstrates the recognition of the wider international community that climate change is a universal threat, and the importance of putting differences aside in order to uphold and advance the Paris Agreement’s goals.
It also demonstrates one of the key values of COP23: unity for the climate. There needs to be a unity of actors from cities, regions, businesses, investors, the scientific community, and governments. Uniting these groups is necessary to work faster, more closely and more ambitiously to tackle the ever increasing impacts of climate change upon our lands, oceans, ecosystems, planet, and people.
Source: LexisNexis Purpose Built
Uniting for the climate — COP 23 Bonn kicks off
by Hardwick Legal | Oct 31, 2017 | Purpose Built (LexisNexis)
In the first of a special series on environmental localism, Sarah-Jane Denton, consultant in the environment and climate change team at Simmons & Simmons LLP, examines the rise in environmental localism and discusses some of the recent trends.
This Analysis was originally published on Lexis®PSL Environment. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.
What is environmental localism?
‘Localism’ is a move away from centralised government in favour of greater powers and decision making for local authorities, with the perceived benefit that communities and local people will be more involved and invested in issues which directly affect them, including policy and decision-making. The Localism Act 2011 (LA 2011) was passed with the stated aim of removing bureaucracy and the influence of central government. Environmental localism, by extension, represents a move towards environmental policies designed at a local level, to address local manifestations of national or international environmental challenges. The term can be used to describe a wide spectrum of environmental initiatives, from the achievement of national emission targets via the promotion of community energy programmes, to controls aimed at improving areas prone to flooding. Localism also encompasses small scale town or city-specific measures such as cycling incentive schemes which represent, individually, small changes but, in sum and over time, make a positive contribution to the achievement of environmental objectives.
What is the current status of the environmental localism movement in the UK? What are some of the main trends?
In the face of a central government with limited capacity in all areas at present, local governments are not waiting for central government to take the lead and instruct them to adopt greener practices and projects. In 2016, a large number of local leaders of boroughs, towns, cities and counties (71 at the time of writing) formed a network named ‘UK100’ to devise and implement plans for the transition to clean energy—in many cases in conjunction with private sector businesses, with the goal of achieving 100% clean energy by 2050.
The contribution of UK100 to the UK’s climate goals has been recognised and welcomed by the then Climate Minister Nick Hurd. Some of the UK100 projects already extend beyond energy and into wider sustainability and green economy plans—the success of the first round of projects could well drive local councils to go it alone in other green areas. It will be for central government, however, to provide a supportive framework in which this local leadership can grow. While councils are willing to take the initiative, the government is being urged to act to prevent continual ‘reinvention of the wheel’—to issue guidance and advice, to share best practices and facilitate councils doing the same. This is particularly true where councils have stepped up but there may not be full clarity over who bears responsibility in a particular area, with air quality being a prime example. The government even raised the possibility of passing on EU fines to local authorities, though it has since said that it would not do so unless, perhaps, local authorities fail to meet their own responsibilities which contributed to the overall achievement of air quality objectives.
The Mayor of London recently released a draft environmental strategy. Do you imagine other appointed metro mayors will promote environmentalism in their regions? Is this form of localism likely to gain more traction in the future?
An amendment to the Greater London Authority Act 1999, made by LA 2011, requires the London Mayor to publish an environmental strategy. Other regions are not under the same statutory obligation and not all share the system of government which equips London to handle its devolved powers so adeptly. However, signs are that other cities and regions do share the Mayor’s ambition—as noted above, the UK100 boasts participants from all corners of the UK, many undertaking innovative projects neither directed nor funded by central government. According to research cited by the UK100, up to a third of local residents want to be involved in environmental projects and decision making.
London has forged plans to tackle air pollution at the local level. What does the Air Quality Plan (AQP) mean for local government in this area? Can you envisage other regions following suit and, if so, how?
The plan published in July 2017 recognises a role for councils in improving local air quality, leveraging their particular understanding of the factors contributing to air quality problems in their local area. The AQP will need to be followed up with adequate funding for local councils to implement schemes in order to be effective. Several local councils of large cities with significant pollution problems voiced their disappointment, following publication, with the government’s failure to allocate new clean air zones where driving would be charged, instead asking councils to looks at equally effective other options before imposing charges.
The councils called for ‘national backing of local action’. Councils already have an ongoing obligation to monitor air quality and improve it where statutory nitrogen oxides (NOx) levels are found to be exceeding national limits, though in reality they may not have effective control of local sources of pollution. They have access to various grants for making improvements, but in relatively low amounts—only £11m has been awarded under the Air Quality Grant scheme since 2011. The plan will require local authorities to assess, choose and implement measures to achieve statutory NOx levels in the shortest possible time. This is only a subtle shift compared with local councils’ existing responsibilities, though raises the profile of the issue and increases pressure on the government to provide adequate support for local councils. Local council plans will need to adhere to criteria set centrally and the plan approved by government before it can qualify for funding, which will extend to £255m according to the plan.
The Committee on Climate Change recently released its UK Climate Change Risk Assessment for 2017 (CCRA2). What does this report say about devolved nations? Are there differences in the risks identified?
The CCRA2 presents individual chapters for each of the devolved nations, reflecting the slightly different risk levels faced by each in relation to the six identified priority areas. Temperature change, for example, is a particular risk for England (with London the most susceptible). Water shortage could become a serious issue for England before the end of the century, with demand predicted to exceed supply in some areas by 200%, whereas in Scotland demand is generally less than 25%, and most parts of Wales face no threat of water shortage. Action, however, mostly remains within the remit of central government.
Are certain devolved nations embracing environmental localism whereas others are less enthusiastic? If so, why is this the case?
Certain devolved nations have been more forward from a legislative perspective, for example, Scotland enacted its own Climate Change (Scotland) Act in 2009 which set it on a national path parallel to that followed by England and Wales—the overarching 80% reduction by 2050 target has historically been the same. However in June 2017, no doubt encouraged by the rapid growth of renewable energy in the country, Scotland announced its intention to raise its target to 90%, a move which, if the Bill becomes law, will cement its position as the UK’s leader on climate change. Wales enacted the Well-being of Future Generations (Wales) Act 2015 to oblige a wide range of public bodies from the Welsh government to the National Library to act sustainably, protecting resources and biodiversity. Rather than any particular local driver or risk factor, each nation’s policy on environmental matters and its ability to enforce the policy, as we see with localism generally, is to a large degree driven by the political priorities and distractions of the moment. While Scotland positions itself as a climate leader and an attractive destination for green business, Northern Ireland is challenged by the collapse of its government and the Westminster government has limited resources to focus on non-Brexit environmental issues.
Could devolution lead to a fragmented UK environmental policy (as seen in the Scottish government’s and the central government’s conflicting approaches to fracking)? Could Brexit soften or exacerbate the potential fragmentation?
Some 80% of environmental legislation is currently derived from the EU. This means that the whole of the UK has had to follow the EU’s lead and stay in reasonable alignment, except where legislation has yet to catch up with technology or where the EU permits legislative ambition over and above the requirements of a Directive. The Scottish and Welsh governments accused the Westminster government of a ‘naked power grab’ when the Withdrawal (European Union) Bill was first published in July 2017. The Bill prevents the devolved legislatures from legislating contrary to retained EU law after Brexit, which in simple terms means that central government is defining policy in devolved areas for the immediate future by preventing a departure from EU rules.
In Scotland, the SNP pledged in its 2017 election manifesto to ensure that powers, including in the environment sphere, repatriated from Brussels to the UK would be devolved to Scotland. There is a lot of speculation about the approach that central government will take to environmental policy after Brexit, not helped by the ongoing delays to the publication of Defra’s 25-year plan. Whether Scotland and perhaps Wales will look to diverge their environmental policies depends to a large degree on the level at which the bar is set by central government.
Source: LexisNexis Purpose Built
What is environmental localism?
by Hardwick Legal | Oct 24, 2017 | Purpose Built (LexisNexis)
While UAE law generally recognises the parties’ freedom to contract as they see fit, there are mandatory provisions of the UAE Civil Code that will override any agreed risk allocation for adverse ground conditions. Bill Smith, Partner, and Alistair Price, Associate, at Pinsent Masons give a brief introduction to the key legal issues to be aware of under UAE law when disputes concerning adverse ground conditions arise.
Who is liable if adverse conditions are discovered prior to completion of the project?
If the contract between the parties does not contain provisions apportioning this risk, the starting position is that the contractor will be liable for the costs of overcoming any adverse ground conditions encountered. Whilst UAE law does not contain any direct provisions dealing with the apportionment of risk in this situation, it is likely that a Court or Tribunal would have regard to Article 53 of the UAE Civil Code. This requires the contractor to provide that which is ‘ancillary’ to the contract, even if not specified within it. Overcoming adverse ground conditions may well be considered ancillary to, and therefore part of, the contractor’s obligations to complete the project in accordance with the contract in some circumstances.
If the contract does contain provisions dealing with the risk of adverse ground conditions encountered prior to completion of the project, those agreed contractual terms will govern which party is liable. The majority of projects in the region are let upon standard forms, often containing complex provisions dealing with the apportionment of the risk of encountering adverse ground conditions.
Risk allocation under FIDIC Red and Silver Books
By way of example, the most commonly encountered form of contract in the region, the FIDIC Red Book 4th Edition apportions the risk (and therefore the cost) of encountering adverse ground conditions on the basis of what would be foreseeable to an experienced contractor. A full analysis and explanation of these provisions is beyond the scope of this article. However it is important to be aware that the test is not what is foreseeable to the contractor itself, but instead what would have been foreseeable to an objectively experienced contractor who was in possession of the geotechnical information (if any) which had been provided by the employer and which had carried out any other ground investigations required of it under the contract (whether it in fact carried them out or not). If the conditions are found to be foreseeable following this analysis, the contractor will be liable. If, following its own analysis, the contractor still considers that the conditions are unforeseeable, it must (under the FIDIC Red Book 4th Edition and a number of other standard forms) notify the Engineer of this as soon as possible in order to preserve its entitlement to extensions of time and additional cost.
Of course, provisions in standard forms are often heavily negotiated and amended. We have seen and dealt with relatively minor amendments but have also seen, by way of contrast, the wholesale incorporation of the FIDIC Silver Book ground conditions provisions into the FIDIC Red Book. The effect of these provisions is to hold the contractor liable even where the conditions are unforeseeable by an experienced contractor and where they are totally outside the contractor’s control. In summary, the parties’ bespoke amendments can radically alter the apportionment of risk between them in relation to this issue.
Potential defences available to contractors
Both where contracts contain provisions apportioning the risk of encountering adverse ground conditions and where they are silent, defences are potentially available to contractors that would otherwise be at risk for dealing with the consequences of those conditions. By way of illustration, Article 106 of the UAE Civil Code provides that the exercise of a right, for example by an employer requiring a contractor to overcome adverse ground conditions at its own cost, may be unlawful if its interests in requiring the remediation are disproportionate to the harm that would be suffered by the contractor. In addition, Article 246(1) of the UAE Civil Code, which obliges parties to a contract to observe the requirements of good faith, may assist a contractor otherwise facing the burden of overcoming adverse ground conditions.
Finally, in accordance with Articles 185 and 186 of the UAE Civil Code, an employer who provides limited or misleading geotechnical information as part of the tender documentation may be liable for misrepresentation if the contractor is able to prove that the employer either was aware of the true nature of the ground, or had deliberately withheld information which would have allowed the contractor to become aware of its true nature and the contractor relied upon the information provided in entering into the contract. This defence would not of course assist the contractor in every situation; by way of example, the FIDIC Red Book 4th Edition standard form explicitly requires the contractor to carry out its own investigations of the land (albeit to the extent practicable) prior to entering into the contract, putting in doubt any reliance it could place on the geotechnical information provided to it by the employer.
In reality, if a dispute arises during the build period of a project, the parties must in every case analyse the precise terms of the contract which they have entered into to ascertain how they apportion the risk of encountering adverse conditions and whether, as against them, any defences are available which could reduce or eliminate their liability.
Decennial liability for adverse ground conditions
Whilst the majority of ground condition disputes arise during the course of a project, it is possible for these issues to arise at a later date. For example subsidence which affects the structural integrity of the completed structure, or water leakage from a swimming pool which threatens the safety and stability of adjoining structures.
If adverse ground conditions cause serious problems with a building or other structure after the works have been handed over, the contractor and the designer will be primarily liable pursuant to the mandatory decennial liability provisions of the UAE Civil Code.
Article 880 of the UAE Civil Code is a mandatory provision which overrides any provisions in the building contract, or the professional appointment. Article 880(2) requires the employer to be compensated for any defect in the land which results in the total or partial collapse of a building, or even any defect threatening the stability or safety of the structure. The liability exists for a period of 10 years from the date on which the works were handed over. However, in practice, the contractor’s and designer’s exposure to liability may be longer or shorter than the 10 year period as the employer must commence proceedings within three years from the collapse or discovery of the defect.
Whilst Article 880 imposes strict liability, there are limits placed on this. If a designer has only prepared the design, Article 881 of the UAE Civil Code expressly limits its liability to defects caused by its design. That said, if the designer acted in a supervisory capacity during the build period, its liability will not be limited in this way.
Likewise, in accordance with Article 878 of the UAE Civil Code, contractors are only responsible for defects arising from their execution of the works unless (i) they prepare the design, (ii) the designer is a subcontractor to the contractor, or (iii) an experienced professional in the same position as the contractor would have been aware of such design defects.
Going forward
Before contracting, parties should take care to analyse the precise terms of the contract to ascertain how the risk of encountering adverse conditions is allocated. The common sense principle that risk should be allocated to the party best placed to manage it, is not always observed when it comes to ground conditions. This false economy during the procurement phase often provides fertile ground for future disputes.
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Source: LexisNexis Purpose Built
Adverse ground conditions in the UAE—what you need to know
Sebastien Korwin, an international environmental lawyer and senior legal and policy advisor for Climate Law and Policy (CLP), reports on the outcomes of the 23rd meeting of the Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change UNFCCC, including how the UK contributed to developments.
