Setting the scene: making climate law work

What role can the law really play in averting a climate crisis? In this opening episode, James Dallas, Executive Director of the Energy and Climate Change Law Institute at Queen Mary University of London, sits down with Professor Silke Goldberg, Partner at Herbert Smith Freehills Kramer and Honorary Professor at QMUL, for a wide-ranging conversation that sets the scene for the series ahead. From the legacy of the Urgenda case in the Netherlands to the slow machinery of international climate diplomacy, Silke reflects on where the law has made a difference, where it has fallen short, and what the episodes to come will reveal about the legal tools shaping our response to the climate crisis. 

Link to our guest's social media accounts: LinkedIn: Silke Goldberg, Partner at Herbert Smith Freehills Kramer, https://www.linkedin.com/in/silkegoldberg/ 

Key references: 

• Angry Weather: Heat Waves, Floods, Storms, and the New Science of Climate Change by Freddie Otto 

Transcript

SPEAKER_01 0:05

Hello, everyone, and welcome to Making Climate Law Work, a series of six podcasts from the Energy and Climate Change Law Institute and Q Legal at Queen Mary University of London. The series will explore how legal tools shape climate action. I'm James Dallas, the Executive Director of the Institute, and I'm here with Professor Silka Goldberg, a partner at Herbert Smith Freehills Kramer, and also, I'm pleased to say, an honorary professor at Queen Mary. Silka has been a major contributor to the Institute over the years, lecturing on energy and regulation, particularly in Europe. Welcome, Silka. It's a great pleasure to have you here. And thank you for joining us.

SPEAKER_00 0:54

Hi, James, and thank you for having me. It's great to be here.

SPEAKER_01 0:57

The aim of these podcasts, as you know, is to take some of the main themes coming out of climate change debate and examine those legal issues that are emerging. Today's episode will begin the series by taking a sort of helicopter view of the subjects being examined in detail in the subsequent four episodes. So, Silka, but before we dig into the detail of the themes being discussed, I'd be very interested to hear your take on the importance of the law in confronting this global challenge. I mean, how big a role is the law going to have in responding to the climate crisis? And indeed, I mean, are there parallels?

SPEAKER_00 1:43

Thank you, James. It's a really good question and it covers so much. So I think law has a really big role in relation to climate change because it is the tool, so it's a key tool with which we can fight climate change or can work against global warming. So to give you a few examples, because the law can work as a tool not only at international level, but at regional and national and even local level. To give you a few examples, so we had the Montréal Protocol very early on, which was an international treaty, trying to help to cover and get the ozone layer repaired again, or at least not that it eroded not further. We then had the UK ETS, the UK Emission Trading Scheme. We had the European Union Emission Trading Scheme, which has been super successful. The Montréal Protocol is generally seen as a very successful international treaty, as is the EU ETS, the European Union Emission Trading Scheme. The EU ETS has contributed to, I think, of around a 40% reduction in greenhouse gas emissions in the sectors covered by the EU ETS over time since the foundation of the ETS, of the European Union ETS. So law played a huge role there. In addition, we see legal instruments being used at national level. So for instance, Klimaschutzgesetz, the climate protection law in Germany, or the renewable subsidy law in Germany, and they have many, many similar laws across the European Union and beyond. Here in the UK, we've had for the first time in 2019 enshrined in law that a net zero by 2050 must be achieved. These are all legal tools which aim to achieve climate-related objectives. So I would say law was an incredibly powerful tool here, and not least because it's well, it is law, it is binding. So from that perspective, it is really a very strong tool.

SPEAKER_01 3:40

Thank you very much. Yeah, I remember indeed uh the ozone layer and the holes that were appearing in it and the very effective Montreal Protocol. Although, of course, this is so multifaceted that it's much more difficult to come up with a sort of silver bullet as that was. But thank you very much. I I entirely agree with you. I think uh the law has a unique role to play here. Turning to the episodes, um, the next episode is entitled International Law and State Obligations, Who Enforces Them? And a very good question that is. In this episode, Manuela Zini and Giulietta Garcia will be in discussion with Hajj Norella of Diety Chambers. And what they'll be looking at is the international framework for climate change and questioning its effectiveness. Climate change, as we know, is a global problem, and that means it requires a global response, and then the context of law that places it firmly in the realms of public international law and in particular treaties, you know, which are, as you well know, agreements between states to secure desired outcomes. Uh, the foundation stone uh for this international collaboration has been the United Nations Framework Convention on Climate Change, and that's given rise to a number of further treaties as it's evolved, most importantly, the Paris Agreement of 2015, which set the goal for emissions control at two degrees above pre-industrial levels with efforts to achieve 1.5, as you know. But in looking at that, we are 30 years on from, more than 30 years on, from the UNFCC, and the progress is, in the words of the Secretary General of the UN, Antonio Guterres, currently too slow to avoid disastrous consequences. Do you think this criticism is justified? Uh and if you do, to what do you attribute the slow progress?

SPEAKER_00 5:52

It's a really complex question because I think you point out 30 years after uh Rio, after the adoption of the UNFCCC as a framework, the world is no longer the same, both in terms of the geopolitical shape, but also in terms of the climate challenges. Many things were foreseeable, but really sort of the architecture of international climate agreements has changed. UNFCC is still the cornerstone and the foundation. We had the Kyoto Protocol, we had the Paris Agreement, we have various different additional smaller agreements, we have agreements on loss and damage, all in the framework of the UNFCCC. And I think we have made a lot of progress by virtue of the fact that we have a Paris Agreement, for instance. We have led international commitment to 1.5 degrees or about two, but no more than 1.5 degrees ultimately. That in itself is progress. However, uh progress has been, admittedly, very slow. I think I've recently read an article that said we actually beyond the point of no return for 1.5 degrees, um, or very close to it at the very least. So that is a huge problem. And I think because perhaps because climate change is so big that we cannot really imagine sort of what it might be looking like on a day-to-day basis. We can all imagine the political consequences or the societal consequences of something that might happen in a couple of years' time or so. But as soon as we need to think in decades and perhaps in generations, that becomes much harder. So that's perhaps where I would uh like to attribute part of that. Part of it is also the multi-layered nation and multi-layered nature of the United Nations. It is so complicated to get agreement on anything that um I'm just wondering whether a global agreement, although really that is the North Star, as it were, with a lot of regional agreements where countries work together, might be a way forward.

SPEAKER_01 7:56

Yes, I I think you're absolutely right about that. And I think you made an interesting point about, if you like, timing. You know, it's quite clearly a really, really important topic, but there are always urgent issues that seem to come along and stand in the way of immediate progress and perhaps overtake it in terms of its immediate importance. So uh I think, for example, of recent events in the Ukraine and now indeed in Iran, and all of that having consequences for the cost of living, obviously, through uh the increase in energy costs. And that tends to blow uh governments off course when they're confronted with cost of living crises at home and so on. But if I may take another exogenous uh factor or external factor, and that is the US. And the US has now, for the second time, withdrawn from the UNFCCC and the Paris Agreement. What consequences do you think that has for progress in tackling climate change?

SPEAKER_00 9:15

It's difficult to say because it is never good when a party withdraws from an international agreement in relation to climate because they it signals a certain level of disengagement or a level of, well, that they see the corporation perhaps elsewhere or that they don't see it as a major policy point for them. However, I think the real question for me is how do other parties respond to that? Are other parties stepping up the efforts? Because whether or not different countries are party to the UNFCC or the Paris Agreement, ultimately the key issues of climate change and the urgency remain. So, yes, it's likely that there will be a structural issue if such a big party um withdraws. I was once in a lecture by uh William Northhaus, the Nobel Prize winner for economics, and he has written this seminal book about uh climate casino, and he lectured really about how an international carbon price was absolutely key to achieving global reduction in CO2 emissions. And what he said was essentially, I'm paraphrasing this. Um, I hope he's not going to come and sue me for misrepresenting a bit what he says. But he's basically saying, I think if the US and China were to agree on a carbon price, most of the other regions would fall into place, and that would have the biggest impact on carbon pricing and uh CO2 reduction overall. So, therefore, I think there will be structural issues, there will be political issues in relation to how the US participates in the UNFCC framework. But I think ultimately the real issue is there will be increased pressure on how to agree a carbon price internationally, and which is really the most powerful tool.

SPEAKER_01 11:02

Thank you very much. I'm going to move us on to the second episode, where the guest speaker will be uh the leading international lawyer and King's Counsel from 20 Essex Chambers, Sudanshu Swarup. Um, and Sedanshu will be interviewed by Alisa Einanen and Nicola Dupa, two of our students. Uh, and the episode will examine climate litigation and governments, the power of climate litigation. And in particular, it will look at two landmark cases: the agenda case in Holland of 2021, which you're all very familiar with, and the so-called Swiss Granny's case, more recent, 2025. Uh, the agenda case was brought by an NGO, uh, the Agenda Foundation, against the Dutch government, uh, after the Dutch government failed to agree to take the preventive action which the NGO felt it should take in relation to emissions mitigation. And the Swiss case relates to a group of elderly women in Switzerland who, again, with the help of an NGO, took the Swiss government to court for failing to protect them from the adverse consequences of climate change, particularly increased heat, uh, which they maintained was uh particularly severe for them on account of their age. So, my first question to you on this is if you look at agenda, it's now over four years old. And in truth, this sort of avalanche of copycat cases anticipated by some hasn't materialized. Um, so my question to you is how influential do you judge the agenda case to be, and has it made a difference?

SPEAKER_00 12:56

I think we've seen elements of the Urgenda case. The urgenda case basically said, well, the Dutch government isn't doing enough for the environment and it's not doing enough in relation to climate change, and then sort of ultimately all the way from the Supreme Court, it was told that it needed to do more. I think that would work particularly well because of an innovative use of the Dutch civil law code. Basically, it's a tort case under Dutch law, what the NGO brought. And I think that is both the reason why it worked really well in the Netherlands, but also the reason why it might not work perhaps in other jurisdictions. So I think it is a unique Dutch case. Is it influential? Yes, because some of the agreement, some of part of the reasoning, the ratio dekendis, if you wish, or the arguments that were brought, we have seen that now in other court cases that have been brought. Um in the Shell case, similar arguments were brought first in the Netherlands and then later in the related case here in England. And the argument is always who has the duty of care, sort of to whom is the duty of care owed, and what ultimately um can be imposed by way of remedies in relation to climate change. Ultimately, I would still say, whilst they are similar or structurally similar arguments, the Gender case worked well in the Netherlands because it was an intrinsically Dutch case. Um, we can say many things about the line of argument or sort of how they have used perhaps international law arguments, but ultimately this will only make sense in the Dutch context.

SPEAKER_01 14:28

Yeah. Yeah, I think yes, and obviously the line of argument in relation to talk was very important because of the particular particularities of Dutch law. Although, of course, it did also talk about human rights and the right to life and right to family life. And that really takes us on to uh the Swiss Granny's case, which established uh that, in particular, the right to respect private and family life, Article 8 extends the scope to protection against the adverse consequences of climate change. And so uh they were successful in their claim that the Swiss government hadn't done enough to protect them against those adverse consequences. Since then, I've noted that the Swiss government have been very critical of the judgment. And really, my question to you in the context of that is do you see the case as, if you like, strengthening the powers of citizens to challenge government in action? Or do you think there will be, in certainly in some uh governments' minds, a weakening of support uh for the European Convention on Human Rights, which was the basis for the judgment itself?

SPEAKER_00 15:48

I think that in the British context now, that is of course a very topical question because we need to make two points here. So, first of all, yes, the human rights line of argument has been very important in the Swiss Granny's case, it has been very important in relation to actually Uganda as well, the Shell case, and also um the recent case um again in front of the uh the Hague Um Court of First Instance. That I think overall, climate change litigation has had a very strong reliance on these human rights arguments. However, I would say that there is a line to be drawn between judicial activism and a litigation approach and two legislative approaches. Because there are certain things that are, in my view, are not really justiciable. Climate change, um, and I realize um that's not perhaps a super popular opinion, but I think climate change is not something that is necessarily justiciable. It is m is a matter for legislation in Britain, it would be a matter for the sovereign parliament. So, and perhaps I come from a very British legal tradition here by saying parliament is sovereign here and should make the relevant decision, should legislate appropriately if necessary. So that that's where I come out on that one. Also, it brings me actually back to the point that we need to take a very careful look as to whether a particular solution works in the Dutch context or in the British context. And back to your question is there a risk that perhaps over-reliance on repeated use of the European Convention of Human Rights might bring the criticism that, well, um, if you use it repeatedly, then um governments might not like that so much and be very critical of that. And I think there is something to it, and particularly in the British context where British membership of the European Convention on Human Rights is really under fire from all sorts of political uh aspects at the moment. I think it would be very wise to use any approaches there very carefully. And um again, we would also need to check whether approaches to the uh European Court of Human Rights make sense in the context of a particular national or European context. So whether, for instance, all the national um remedies had been exhausted first, or whether indeed having the right for an individual to challenge a norm, because ultimately that's what this is about, sort of individual norm challenge cases, whether that works at all. So, for instance, in some cases, in some jurisdictions, it's absolutely possible. We have the concept of normankontrol in Germany, which is a constitutional law, but in Britain we don't have that so much, and actually in the Netherlands we don't have it uh all that much either, because it is you can't actually sort of check norms against the Dutch constitutions or international treaties quite in the same way.

SPEAKER_01 18:38

Yeah, no, thank you, Erwin. I agree with you entirely that the I think different countries have different legal traditions, and I can't see a gender ever having got through the British courts in the same way, and the separation of powers issue, and as you also rightly say, the human rights issue for for lots of perhaps wider reasons are also being debated quite heavily here. So I think it it is, it depends a little bit on the local jurisdiction as well, as to how far that goes. We haven't got time. I was going to talk to you about the advisory opinion of the ICJ, but I which is also very interesting in this context. But I think we'll move on and look at the third topic that's taken, which is loss and damage. In this episode, uh, again, Julietta and Manuela return to explore the topic of loss and damage under the title, Who's Paying the Global Climate Bill? Uh, and they're interviewing Joy Race, a researcher at the Grantham Institute. And the starting point for this is really the issue of loss and damage, for a long time seems to me to have been one of those issues which has taken, played third fiddle to firstly mitigation and secondly, adaptation. And the question of loss and damage was rather sort of postponed and didn't get a full airing until relatively recently. And obviously, and now there's a fund that's been established. But why do you think it is that loss and damage has not attracted the same degree of attention and importance? It's certainly enormously important to many developing countries who see themselves as most adversely impacted by climate change.

SPEAKER_00 20:26

That's exactly where I was going to start my answer, because it's not important for whom? Because I think, or like when it doesn't have the intent, attention, because certainly, sort of, as you know, I've been involved with um a fabulous NGO. If I can let's say, sort of, briefly have a uh mention the Legal Response International, which was founded by lots of different law firms and barristers' chambers in the City of London, but also has now supporters all around the world. Oxfam was involved for a long time as well. And so this organization gives legal support to countries, um delegations from developing countries and um in relation to the climate change negotiations. And from those delegations, we've heard as part of the uh legal response initiative for many years that loss and damage was really a critical issue at a very high level. Why has it less attention? Because it's money. As soon as it is about financial contributions rather than policy decisions or the financial consequences of those policy decisions, it will get more difficult. Now, the nations or the signatories to the Paris Agreement have committed to a loss and damage mechanism. They have also committed to funds flowing on an annual basis to, for instance, the Green Climate Fund seeded in Seoul. I'm not sure it's necessary whether it's enough, because I'm in no position to say whether that is enough. Um the the key question will now be how is that money distributed? How is it raised? Are the countries living up to their commitment in relation to those funds and doesn't damage? But I think The question of distributive justice here. Sort of to ensure that not the poorest countries are also suffering the most from climate change, which structurally they do, that that isn't uh perpetuated on a long-term basis. That will be really important.

SPEAKER_01 22:15

Well, I um yes, absolutely. And it does seem to me, as you say, because it's about money flows, yeah, it's it's a much more intractable and difficult um problem to deal with. Um, and perhaps also go going with that is some suggestion, at least I I've heard it's mentioned, that the concern is that there's an admission of liability when you start talking about loss and damage and contributing to loss and damage, and that discourages people from doing it. But one way or another, uh, it is one of the most important issues, and those who've least contributed to the problem seem to be those most damaged and most in need of support. So I hope they do find solutions to it. Perhaps I could just finally follow up on the question of sort of liability. So loss and damage occurring as a result of increasingly uh severe adverse weather conditions and the increasing frequency of those severe weather events, uh, which lead to damage through flooding and fires and desertification and so on. But the question of establishing legal responsibility still seems to be a very difficult issue to resolve. Do you see attribution science as being able to make a difference and will actually allow courts to establish liability, where in the sort of traditional terms that you and I would be familiar with, that liability would not normally arise because it was too difficult to prove the causal link. Is attribution science being adopted and should it be?

SPEAKER_00 24:00

A couple of points on attribution science. So, first of all, for um listeners unfamiliar with attribution science, I would urge you all to read the book called Angry Weather by uh, I think she's a professor now, Professor Dr. Frederica Otto. Um she teaches at one of the uh London universities, she was at Oxford, and it's a great book written in layman's terms, explaining how weather and climate are interrelated and how climate change also changes weather patterns. So, for instance, one of the things in her book that really stayed with me was that she and her team had calculated the likelihood of a particular heat wave around Toulouse being attributable to climate change. And that was for me fascinating because that meant that we can predict or we can attribute particular weather patterns or particular spikes in weather, so whether it's flooding or heat waves or whatever it is, to climate change rather than let's say um it's a freak weather event or something. I'm not sure, but I'm not an attribution scientist at all, but I have just read the book and find it interesting. I'm not sure attribution science will ever be able to say because of the emissions of Company X, Y event happened. So that traditional liability, I'm not sure, is something that can be evidenced and that is incredibly complex just because of the way that atmosphere emissions function. I think what it can do is showing whether or not something comes from climate change as a whole. And then we can debate how climate change has been caused, sort of anthropogenic, sort of various emissions. Ultimately, that brings it back to me to the argument there needs to be a societal societal answer to loss and damage. And it's uh sort of nation states and um uh society as a whole that needs to step up and provide for how do we deal with climate change and the losses and loss of opportunity as a result of climate change.

SPEAKER_01 25:58

Yes, I mean shifting to a sort of probabilistic basis, you will lose that there is inevitably a loss of certainty about the link between the event and who caused it.

SPEAKER_00 26:11

Um not also sure that that is necessarily helpful. So if the because ultimately the levers to me are political. So whatever government, parliament here, the sovereign, yeah, will decide that's what's important.

SPEAKER_01 26:24

It's a very good point. Thank you. I shall move on to the last episode. Uh, and then in the concluding episode, again, Elisa and Nicola return to debate climate change and corporations, the new way of doing business, as they put it, uh, looking at how the energy transition is affecting companies, corporations around the world. Their guests will be uh Jessica Hargreaves and I. So the early attention on climate action has all been focused on states and what they can and should be doing. And obviously, that makes sense in the concept of setting a direction through policy and guidance and strategy. But when you look at emissions, most of the emissions will come from corporations, and most of the steps to abate emissions will need, again, to come from corporations. Much of the energy transition will require huge amounts of capital, and that capital will have to come from the private sector and from corporations, banks, industrials, and so on. And corporations are very much at the center of the action to deal with climate change. And at the same time, they have become very conscious of their role and the fact that their investors and others care deeply about their attitude towards the environment and their green credentials. And the investment community and the banks and shareholders are all putting pressure on corporations to be more sustainable. But as we know, there's frequently a gap between what they claim to be doing environmentally and the reality on the ground. So, my question to you is when you look at the new laws and regulations that are emerging, what steps are being taken in the UK and across the channel in the EU to combat so-called greenwashing?

SPEAKER_00 28:38

Let's look at what is greenwashing. Greenwashing is saying I am greener or I'm doing more green things than I'm actually doing. Sort of by that is very nature. Sort of dialing it back to its core legal concept, that's a misrep. It's a misrepresentation about a company's actions, either way. And so we've seen recently, for instance, in particular in the European Union, who's sort of uh leading internationally here, introducing directives, legal instruments that force companies to be transparent about their emissions and a whole host of other sort of data points. I would mention here the corporate sustainability reporting directive and the corporate sustainability due diligence directive. It's not just about emissions, but also about emissions as well as human rights and data points. Now, I think we need to be careful, and the European Union clearly has taken that on board, that these disclosure obligations don't become a circus in and of themselves. Because if the focus is so much on we need to comply with these directives and it sort of becomes a tick box exercise, that doesn't help either. I think the European Union has seen that and has simplified some of those obligations. Here in the UK, we have ISSB, which is a standard against which certain types of certain categories of companies need to disclose, and that is certainly helpful. I think there's another tendency that we've seen in the whole greenwashing debate that some companies are no more reluctant to tell the world at large society about all the green things that they're doing for fear of being accused of greenwashing, even though they're not actually greenwashing. If anything, they're doing very many good things. So I think the question that I'm not sure that we found the right balance here is to find a regime that holds companies accountable, sets out a very clear regulatory regime that is achievable by companies and doesn't create so much additional burden that it's a break for companies' growth otherwise. And that uh sort of signals the importance of not misleading uh society about uh emissions and then enabling, or conversely, enabling society to make informed choices. We know that transparency is important to investors. I've been in many MA transactions recently where uh the investor has said, oh, but how about ESG? Or can we just double check sort of is this company compliant? Is it an article eight, is it an article nine fund? And um, how does this company deal with climate change and business and human rights? So they're really important topics to companies, but I think sort of the on the on the we need to get the balance right here.

SPEAKER_01 31:15

Yeah, it's interesting. I mean, you talked about it being achievable, and I mean, do you have a worry or should one be concerned that the ever tighter obligations imposed, particularly within Europe and also in the UK, can lead to uh unwelcome conclusion. One is leakage, that you drive production overseas. And secondly, that there's a risk that the cost of compliance leads to those businesses, I suppose they're linked, being uncompetitive if they're within the UK or the EU because they're having to comply with much tougher regulations than their competitors do in other jurisdictions. Is that is that a concern?

SPEAKER_00 32:09

I think at European Union level, clearly it is. So hence CBAM, the the carbon, uh, the carbon cross-border adjustment mechanism uh introduced by the European Union in order to set off the effects of the European Union emission trading scheme.

SPEAKER_01 32:22

Yeah.

SPEAKER_00 32:23

That's always a concern, but I think again it's about balance here. I can't imagine that companies would just upsticks just because of the corporate uh sustainability due diligence that is required of them or so. But certainly policy plays a huge role in determining where a company would want to be resident or want to produce. But ultimately, I think companies sort of the concerns that I've enumerated from investors demonstrate that companies on the whole do have a commitment to all the same concerns that we've discussed, climate change, business and human rights, etc. So from that perspective, I'm not too worried. But overall, what is really important is to have a stable regulatory regime that doesn't change all the time, um, where uh companies have predictability so that they can do all the things that they want to do in relation to the investments.

SPEAKER_01 33:14

Lovely. Thank you very much. I mean, you and I could go on debating this for a very long time, conscious of the time. Uh I'm going to ask you a very difficult question right at the end, which is are you optimistic, pessimistic, or somewhere in between as to where we currently stand in relation to combating climate change through the law?

SPEAKER_00 33:35

I'm optimistic because the alternative is just awful.

SPEAKER_01 33:38

Absolutely perfect. I agree. One needs to be, and we have seen action. So thank you so much for your contribution as ever and your valuable insights. It's been a great pleasure. And I want to end today's introductory episode by playing a short piece of music we commissioned from a young musician, Isis Lipton Cheney. And the piece reflects her feelings on the threat posed by climate change. To me, it strikes a tone of concern and foreboding and is something of a lament for the planet. Uh, it's very haunting. I'll leave you with that. But thank you very much again.

SPEAKER_00 34:23

Thank you for having me.

SPEAKER_01 34:25

And thank you all for listening.