Alternative Dispute Resolutions As A Means To Resolving Climate Change Disputes By Josephine Tolulope Ogundeji, Esq

• Abstract

Climate change is real and the fact that its effects are exceedingly deleterious on man is no longer news. Researchers have equally shown that most of the changes in the climate are the natural consequences of certain selfish exploitative activities of man and that for the effects of climate change to be mitigated, man should be ready to limit its selfish exploitation of the earth’s resources.

This article looks into the concept of climate change and the use of alternative dispute resolution to resolving climate change disputes.

2. Introduction

Climate change is a global challenge that has no borders and combating it requires a coordinated work by all countries. It is also an issue that demands a multinational approach to tackle. The main cause of climate change is global warming, which has many negative effects.

Global warming is caused by the greenhouse effect, which is a natural process by which the atmosphere retains some of the sun’s heat, allowing the Earth to maintain the necessary conditions to host life. Without the greenhouse effect, the average temperature of the planet would be 18^oC. The problem is that daily human activities maximize the greenhouse effect, causing the planet’s temperature to increase even more.

Climate change justice demands that those individuals who will be disproportionately affected by climate change, and who are least equipped to deal with its effects, must be protected by fair access to legal mechanisms to help them.[1]

Disputes arising from climate change abound due to the denial of fair access to legal mechanisms or refusal of authorities to implement available legal mechanisms provided in statutes, conventions, laws, Acts, bye-laws and regulations. Other forms of disputes relating to climate change are traceable to the dearth or non-existence of any legal mechanism to assist individuals who would be disproportionately affected by climate change.

3. Definition of Terms
   • Climate change

UNFCC (United Nations Framework Convention on Climate Change) defines climate change as a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods.

Oxford Dictionary of Science (2005) defines climate change as a long term change in the elements of climate, such as temperature, precipitation, wind and pressure measured over a long period of time of at least several decades.

Climate change refers to changes in global temperature, precipitation, wind patterns and other measures of climate that occur over several decades or longer. It is the defining issue of our time as we are constantly faced with evolving issues relating to climate change in the form of deforestation, desert encroachment, gas flaring, ozone layer wear out, greenhouse effect, water pollution through oil spillage, wild/bush fire, carbonation, tsunamis, tornadoes etc. From shifting weather patterns that threatens food production, to rising sea levels that increase the risk of catastrophic flooding, the impacts of climate change are global in scope and unprecedented in scale.

3.2 Climate Change Disputes

The range of climate-change disputes is vast- it is a global phenomenon, where legal issues traverse multiple fields of law and various causes of action, and involve a wide range of claimants and defendants from multiple sectors. Climate change disputes are conflicts, disagreements or wrongs arising from the adverse effects of climate change.

These disputes revolve around the energy sector or the environmental sector. This is not to say that all climate change disputes are energy or environmental related. Climate change disputes can be roughly divided into two categories:

• Cases brought to either mandate or change climate related policy or conduct;
• Cases brought to seek financial redress for damages associated with climate change.

• Litigation

Litigation is the term used to describe proceedings initiated between two opposing parties to enforce or defend a legal right. Litigation can be settled by agreement between the parties, but are typically heard and decided by a jury or judge in court, with an enforceable judgment as its end result.

Contrary to popular belief, litigation is not simply another name for a lawsuit. Litigation includes any number of activities before, during, and after a lawsuit to enforce a legal right.[2]

• Arbitration

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.[3]

The characteristics of arbitration are:

• It is consensual.
• The parties retain the right to choose the arbitrator(s).
• It is a confidential procedure.
• The decision of the arbitral tribunal in the form of an award is final and easy to enforce.
• Mediation

Mediation is a method of alternative dispute resolution (ADR) available to parties. Mediation is essentially a negotiation facilitated by a neutral third party. In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. The mediator facilitates the resolution of the parties’ disputes by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting a final settlement. The role of the mediator is to interpret concerns, relay information between the parties, frame issues, and define the problems.[4]

• Effects of and Responses to Climate Change

The global temperature increase of climate change brings disastrous consequences, endangering the survival of the Earth’s flora and fauna, including human beings. The worst climate change impacts include the melting of the ice mass at the poles, which in turn causes rising sea level, producing flooding and threatening coastal environments through which small island States risk disappearing entirely.

Climate change also increases the appearance of more violent weather phenomena, drought, fires, heat waves, the death of animal and plant species, flooding from rivers and lakes, the creation of climate refugees and destruction of the food chain and economic resources, especially in developing countries.

There are two responses to global climate change:

1. Mitigation- intervention or polices to reduce the emissions or enhance the sinks of greenhouse gases;
2. Adaptation- response to the changing climate (e.g. acclimatization in humans and policies to minimize the predicted impacts of climate change (e.g. building better coastal defences).

While mitigation primarily involve reduction in the concentration of greenhouse gases either by reducing their sources or increasing their sinks, adaptation involves acting to minimize the effects of global warming.

Mitigation policy helps reduce future increases in climate change while adaptation policy deals with the unavoidable impacts of climate change.

5. Climate Change issues in Nigeria

The focus on climate change issues appears to be divided among nations, despite the historic Climate Change Agreement (‘Paris Agreement’) signed by more than 140 countries including Nigeria, in Paris, France on December 2015[5].

Nigeria ratified the Paris Agreement through what the Presidency termed “Instrument of Ratification”. The Ratification is neither done through a Law nor an Act. The Instrument of Ratification could be liken to a pact by such signatory to the Agreement to abide by such an Agreement and also work towards its success. The enforceability of this Instrument of Ratification where the Nigerian Government fails in its obligations and duty under the Paris Agreement is in doubt given the provisions of Section 12(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (‘CFRN’) which stipulates that “No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.”

Nigeria like other countries of the World has its own experience of climate change disasters vividly highlighted by the case against Shell Petroleum Development Company of Nigeria’s (‘Shell’) dealing with the Niger Delta, a region that has not only fallen victim to extreme oil pollution, but is at risk of rising sea level, in which case the Court ordered Shell to stop gas flaring in Nigeria as gas flaring violates citizens’ constitutional rights to life and dignity and generates greenhouses gases which subjects local communities to constant heat, light, noise, and air pollution.

Climate change disasters also struck in Nigeria 25 years ago in the north-eastern region presently comprising Borno and Yobe States, the southern part of Lake Chad, the section of it that lies inside Nigerian territory dried up. Some four decades ago, the Lake covered an area of over 40,000 square kilometers, whereas it now encompasses a mere 1,300 square kilometers. While the negative trend continues unabated and as land is laid to waste by the rising temperature leading to the rapid southward expansion of the Sahara Desert, farmlands and surrounding villages became barren and were swallowed up by advancing desertification, which led to massive migration of people in search of more fertile terrain from north east towards the greener Plateau and middle belt regions.

6. Resolution of Climate Change Disputes through Litigation

The development of climate change litigation has gained increased attention in recent times. Claimants in litigation of this nature range from farmers to a group of grandmothers, cities, a law student, or groups of children. Opposite them as defendants are States, and large emitters such as the fossil fuel industry, or those financing them. These cases have attracted successful mediatization at the global level.[6]

In litigation of climate change disputes, claimants rely on factual data, scientific arguments, and on legal arguments (e.g. the objective of limited global warming set out in the United Nations Paris Climate Agreement (‘Paris Agreement’), or national contributions as unilateral declarations capable of creating legal obligations) in proof of their pleas. They equally rely, in a less direct way, on a law that implements a State’s international commitments. Here, the Paris Agreement provides more of a breeding ground conducive to national litigation, rather than legal arguments as such. It also makes clear that policies leading to net increases in emissions are disfavored.[7]

Although claimants in climate change litigation are rarely granted their plea, litigation as a means of dispute resolution has availed the Courts the platform to mandate States to implement their commitments to Declarations and Agreement on climate change issues. One case that has contributed to creating a powerful incentive for national climate trials is the case of Urgenda Foundation v. The State of the Netherlands, 2015 (‘The Dutch Urgenda case’). In the Dutch Urgenda case, the Court found that the Dutch government had a duty to take more ambitious mitigation measures, by virtue of national law, European law, and international law.

Of persuasive importance is the New Zealand case of Thomson v. The Minister for Climate Change Issues, 2017 (‘Thomson’), where the High Court of New Zealand while denying the Claimant’s plea, recognized that the national emissions targets should be reviewed with regard to the Intergovernmental Panel on Climate Change (‘IPCC’) Reports. After stating that ‘the IPCC Reports provide a factual basis on which decisions can be made’, the Court reviewed national policy and in particular the national contribution of New Zealand to the Paris Agreement, in the light of the requirements laid down by the Agreement. The Court concluded that ‘neither the Convention nor the Paris Agreement stipulate any specific criteria or process for how a country is to set its intended nationally determined contribution and nationally determined contribution, nor how it is to assess the costs of the measures it intends to take’. Thus the Claimant did not succeed in establishing the unlawful nature of the national contribution.[8]

The case of Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council,[9] relates to the adequacy of the Swiss government’s climate change mitigation targets and implementation measures. The Claimants underlined the objectives laid down by the Paris Agreement, and argued that Switzerland was not creating the conditions to meet these objectives.

Other climate change cases are leading claimants to assert that their respective governments’ legal commitments to climate change mitigation are consistent with and articulated through ratification of the Paris Agreement. Some of these cases include, one dealing with the expansion of Vienna’s airport in Austria, another one with licenses for deep-sea oil and gas extraction in the Barents Sea in Norway, another dealing with gas flaring and oil spillage in Nigeria, and a last one in Sweden with the sale of coalmines and coal-fired power plants in Germany by a State-owned energy company.[10]

Climate change litigation provides a valuable complement to treaty, legislative, and executive action because it fosters needed interaction across levels of government. If States do not raise the level of ambition of their national contributions to the Paris Agreement, if they do not honor their financial and technology transfer commitments, climate litigation cases and adjudicative approaches could skyrocket in the years to come, not only at the national but also at the international level.

7. Resolution of Climate Change through Arbitration

The International Chamber of Commerce (‘ICC’) Task Force on the Arbitration of Climate Change Related Disputes released its Report in Paris in November 2019 and in New York in January 2020.[11]

The Report finds that ICC arbitration can be effective for the resolution of climate change related disputes and identifies six procedural features for users to consider when arbitrating climate change disputes:

(i) Selection of tribunal members and experts with appropriate scientific expertise;

(ii) Adopting measures to expedite early resolution to provide for urgent interim relief;

(iii) Ensuring the application of climate change commitments or laws;

(iv) Promoting transparency;

(v) Allowing for third party participation; and

(vi) Allocating costs.

The Report provides suggestions for how each procedural feature can be implemented, including case management techniques, modifications to the Terms of Reference, etc. This is achieving by establishing dispute resolution boards for climate-change related disputes, provision for joinder of additional parties under the ICC Rules to allow for participation by impacted individuals or groups, make allowances for greater transparency as climate-change issues are of interest to the public generally and publishing periodic updates on material development and the final award.

8. Resolving of Climate Change Disputes through Mediation

Mediation has been utilized in the resolution of multi-party complex public disputes for over thirty-five years at all government levels. Diverse stakeholder groups participate in a structured process facilitated by a neutral mediator to address their conflicting viewpoints on issues or on a project with the goal of reaching a consensus on an agreement.

A carefully structured mediation process is able to accommodate dozens of individual groups utilizing designated representatives, spokespersons, and technical workgroups. While there may be seventy-five individual stakeholder groups represented, the number of negotiators may be limited to twenty-five. Reaching a consensus implies that there will be compromise, while the needs of the individual parties have been substantially met. Although reaching 100% agreement is a difficult and time consuming goal to attain, participants have indicated that the durability of these agreements has outweighed the cost and effort. Nevertheless, mediated negotiations have successfully resolved disputes over extremely controversial and complex public policy issues including standards for pollution control, ecosystem restoration, and economic revitalization of distressed communities.[12]

Faced with strict deadlines and onerous requirements, many leaders who are also strong advocates of public involvement are questioning the practicality of initiating consensus processes to address initiatives, especially if these efforts could be forestalled by extreme groups on either side of the negotiations table. In some instances, government leaders and dispute resolution professionals who are considering mediated negotiations are suggesting that consensus be redefined as acceptance by a super majority.

Also, Mediators can actively help protagonists look for ways in which co-operation over environmental challenges (such as climate change) can support peace building and reconciliation between divided communities. Tackling this shared natural resources and common environmental challenges inherently requires a degree of collaboration. This can provide a mechanism for people to work together, even when the political dialogue is not working.

Mediators are experts in the politics of compromise. By bringing an understanding of the implications of climate change into their work, they may be able to find new and creative ways to craft peace agreements that work now and in the future.

9. The Best Approach to resolving Climate Change Disputes

Climate change resulting from human activity likely poses the biggest environmental risk modern society faces. Its impact could be global, its long-term costs are likely to exceed those of any other environmental challenge, and its effects probably cannot be entirely averted, regardless of the choices we make. To address these potential dangers, the environmental movement and the political groups have offered numerous policies, proposals and statutes, but nearly all of them have been profoundly flawed.[13]

One key to ascertaining which out of the three methods of dispute resolution would be the best approach to resolving climate change disputes is to consider the issue of enforceability and implementation of the policies, Statutes, Declarations, Agreements and commitments to climate-change issues. Where these are not enforceable, then parties to climate-change disputes would pay lip service to any commitment or agreement arrived at.

To this end, it is the writer’s view that litigation is the best approach to resolving climate-change disputes. Where the other methods of disputes resolution, viz; mediation and arbitration are to be adopted, then recourse must be made to litigation at some point in order to clog any final Award or Terms of Settlement with the garb of enforceability. This practice would definitely necessitate a hybrid of the various methods of dispute resolution, to wit; Arbitration-litigation (Arb-Litigation) or Mediation-litigation (Med-Litigation).

Although litigation may be time-consuming and resource sapping, it nonetheless affords the claimants the power of being able to compel the State or the large emitters/polluters into implementing the court’s judgments, arbitral awards or settlement terms.

10. Recommendation and Conclusion

Climate change is real, human caused to a significant extent, and pose real problems. However, economic potentials must not be sacrificed on the altar of climate change. The best way to tackle these risks and uncertainties is to possess the resources to confront it. This would invariably involve the synergy of both the public and private sector. States as well as other policymakers can assist by enacting laws to tackle climate change, reducing maladaptive subsidies, cutting taxes on productive activities, reducing stale regulations, and increasing overall energy production.[14]

To prudently achieve these, political leaders should pursue policies that render countries and the planet free, more prosperous and more productive. These policies when flawed by States must be enforced using the various methods of dispute resolution considered in this essay. For best results to be achieved in resolving climate-change disputes the dispute resolution approach adopted by parties must be one to ensures enforceability of any resolution reached, otherwise efforts to this end would amount to futility.

It is hoped that since litigation affords the parties the privilege of enforcing any judgment against the State or large emitters without recourse to other methods of dispute resolution, then it can stand as the best approach to resolving climate-change disputes. Where however the other approaches are adopted by parties such as arbitration or mediation, parties should at least ensure that it is hybrid to engraft litigation at some point in order to ensure compellability and enforceability of either the final Award or Terms of Settlement.

Finally, since congestion of cases and time wastage are the demerits of litigation as an approach to resolving climate-change disputes, States should through the instrumentality of the law establish specialized courts or tribunals empowered to consider, hear and determine climate-change disputes within a stipulated period. Such courts or tribunals should also be empowered to enforce arbitral Awards or adopt Terms of Settlement reached in arbitration and mediation respectively as the Consent Judgment of the court.

Josephine Tolulope Ogundeji, Esq., 0902043745/08030759822, [email protected].

[1] F.M. Chambers et al. Earth and Planetary Science Letters 253 (2007) 439–444.

[2]http://www.law.freeadvice.com

[3]https://www.wipo.com

[4]Adr.findlaw.com

[5] Fmic.gov.ng/climate-change-nigeria-brief-review-causes-effects-solution

[6]J. Peel and M. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (2015) page 338.

[7] See The Status of Climate Change Litigation – A Global Review, vol. 17.

[8]See paragraphs 133, 139 and 178 of Thomson.

[9] Oxford Public International Law (http://opil.ouplaw.com) (Oxford University Press), 2015. Accessed 15 April, 2020.

[10]The Status of Climate Change Litigation – A Global Review, 2019.

[11] www.whitecase.com

[12] Blogs.prio.org

[13]Copyright © 2019 National Affairs, Inc. and the American Enterprise Institute.

[14]Copyright © 2019 National Affairs, Inc. and the American Enterprise Institute.