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Professor Duncan French on Alternate Realities: Brexit and Pokémon

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As with many households across the globe – regardless of the age (or existence!) of children – my children became obsessed by the “Pokémon-Go” euphoria that captured mobile apps and social media in July and August this year. To be truthful, I didn’t want to show my naivety as to what I plainly did not understand so I played along as my children ran around searching for these curious-looking Pokémons (or is it Pokémoni?). It was a frenetic period that I did not quite grasp and decided that it was a fad that would soon die down and fade away. On reflection, I was perhaps too traditional in my view that a game so premised upon such an ephemeral proposition would not last. Despite cerebrally knowing what technology could now do, I was perhaps loathed to accept what is simply a further step in how the virtual and my physical existence now interact.

At the same time, many of us were coming to terms with the EU referendum result, seeking to compute the enormity of what had happened on the 23 June, and to reconcile ourselves to the consequences. For many, membership of the EU is as instinctive and fundamental to the UK’s global identity as its membership of NATO, or of the UN. So, just as my head and heart were in tension in understanding Pokémon-Go, I now wonder whether the same was true as regards the European referendum? My head knew that the referendum would be tight, that the campaign had been badly fought and that many in the UK still saw the EU as the institutional zenith of the “other” telling us what to do. “Take back control” was a myth but it was also a very powerful – a very emotive – catchphrase, which (whether we like it or not) resonated with a sizeable proportion of the electorate. Notwithstanding this, my heart hoped for the best… we surely wouldn’t throw it all away? Surely not.

And this tension between head and heart seems to have also clouded how many of us, as environmental lawyers, have prioritised the environment in discussions on Brexit. To do so ignores, however, an invariable fact; namely that the environment has barely mattered. Or, more accurately, that for most who voted Leave (and indeed for many who voted Remain) the environment is a long way down the Brexit agenda. It had scant impact on the campaign, and its relevance in the aftermath remains equally unclear. For sure, some tried to raise the issue of what the EU had done for the environment, but there was an almost inverse relationship between the sincerity and earnestness of the arguments presented, and the likely effect this had on the wider population. There was also the prospective debate as to whether the EU would be able to continue to play a leading role in such critical matters as climate change – and to meet its commitments – without the continuing membership of the UK. Again, valid questions but hardly persuasive in the popular consciousness.

So, just as my head and heart were in tension in understanding Pokémon-Go, I now wonder whether the same was true as regards the European referendum?

Within any discourse on Brexit, there is, of course, a particular paradox; the ecological and economic interdependence facing any State, be it part of a regional grouping or otherwise. Indeed, since the referendum result, the first official steps towards recognising the Anthropocene as the next geological epoch have been taken. And within the UK, the nature and extent of such global interdependence has also become apparent, perhaps most acutely in terms of the UK’s future energy policy. The decision in September to continue with the Hinkley Point C nuclear reactor in conjunction with EDF, a French contractor, and the Chinese government reflects not only the inability of most States to fund themselves such huge energy projects, but also that such endeavours now reflect a synergy – however much in tension – between disparate priorities of energy security, domestic supply, the provision of sustainable energy, and other commercial realities, both for the consumer and the investor. And while the ongoing case brought by Austria and others before the CJEU against the UK for unlawful state aid is very much predicated on EU law, one should not ignore the parallel intergovernmental discussions before the Implementation Committee of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context on the inadequacy of British consultation over environmental concerns. As a convention under the auspices of the UN Economic Commission for Europe, membership will persist post-Brexit, as will many other international treaties. The UK has yet to ratify the Paris Agreement on Climate Change, and has regrettably not been in the vanguard of early ratifications. Nevertheless, there is every expectation that the UK will ratify by the end of this calendar year. As a matter of international law, the UK remains within a network of legal rules and processes – in the environmental field as in many others – that reveals the false premise in any absolutism in “tak[ing] back control”.

So as the UK moves towards trying to discern which model of Brexit is to be preferred, I would argue against fatalism; that as academics and as participants in the political process, we do not simply hark back to what is going to recede gradually from us, namely our membership of the EU and our contribution to EU environmental policy. But that we re-engage (perhaps for the first time) with other regional and international processes and institutions that reflect such ecological interdependence. I may not have understood the allure of capturing Pokémon – I now think the singular is also the plural – but I hope I am not so trenchant as to run around in the hope of spotting something even rarer; UK membership of the EU as it existed prior to 23 June 2016. That truly is becoming an alternate reality.

By Professor Duncan French, Head of Lincoln Law School, Professor of International Law and Co-Director of the Lincoln Centre for Environmental Law and Justice.

Featured image credit: Pokémon planet. CC0 Public Domain via Pixabay.

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Lincoln Law Professor, Matthew Hall on the Sentencing of Oxford University Student, Lavinia Woodward

Trump and the Paris Agreement: Withdrawal from the World but not from the Planet

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Professor of International Law and Co-Director of Lincoln Centre for Environmental Law & Justice, Duncan French on the US withdrawal from the Paris Agreement

“The decision by President Trump to withdraw the United States from the Paris Agreement on Climate Change has rightly been criticised by other world leaders and civil society groups. Within the United States, it marks a further step by the new US Administration in relegating environmental considerations from the government’s priorities. Globally, this is the most pronounced movement by the Trump Presidency in giving effect to the populism of his election campaign. Its timing around World Environment Day on 5 June seems particularly regrettable and ironic. The United States now joins Nicaragua and Syria as the only countries outside of the Agreement.

The Paris Agreement was adopted in December 2015 as a multilateral environmental agreement to move the international community forward together to both tackle climate change and to begin to prepare and to finance the resilience and adaptation necessary in response to its more extreme consequences. It is far from a perfect agreement, and most view it as only the next step in what has to be a much more ambitious programme of reform and change. But it is an important step.

The issue of climate change has been on the international agenda for thirty years. In that time, the international community has adopted two important treaties – the 1992 UN Framework Convention on Climate Change and the 1997 Kyoto Protocol – and the world has become increasingly aware, both through the hardening of the scientific evidence but also with our own eyes, of the reality of climate change. The international community, never completely in consensus on this issue, has nevertheless slowly and sometimes painstakingly edged forward in its commitments. Most notably, India and especially China have now adopted ambitious climate plans.

The United States has always had an awkward history with international climate change law, notwithstanding its historical role as the largest polluter of greenhouse gases. It was not a party to the Kyoto Protocol, concerned then that it only imposed obligations on developed countries and not the more industrialised developing countries. It was this, amongst so many reasons, which made the Paris Agreement so significant; all countries, regardless of level of development, were willing to commit to bring down their greenhouse gas emissions. The obstacle to US participation in the Kyoto process – that of perceived developing country competitive advantage – was thus removed.

Moreover, unlike the Kyoto Protocol, the Paris Agreement works on the basis of “pledge and review” rather than through the establishment of legally binding emission reduction obligations. Each country is to submit a nationally determined contribution (NDC), which it will try to attain (or ‘intends to achieve’ in the words of the Agreement) towards keeping global temperature down ‘to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’. These NDCs are to be reviewed periodically to ensure they are set at the necessary ambition to achieve the Paris Agreement’s climate objectives.

Thus, the US secured its twin objectives in the Paris negotiations; ensuring that China and India made an effective contribution and that climate commitments were “bottom-up” goals set by the countries themselves and not “top-down” prescriptive rules.

Of particular concern was the announcement by President Trump that the US would cease all Paris Agreement implementation actions with immediate effect, including supporting the Green Climate Fund, which provides finance to developing countries to meet their own obligations under the Paris Agreement. Lawyers will argue whether the US has acted unlawfully by violating the Agreement in advance of withdrawal, but the ecological and developmental impact of this non-implementation decision will be quickly felt, and not just (or primarily) in the United States.

So are there any grounds for optimism despite the Trump decision to withdraw? First, formally, withdrawal cannot take effect until 4 November 2020 at the earliest, as the Paris Agreement includes its own rules of departure (12 months following notification, but then only after three years of a country being a member). It is ironic that 4 November 2020 is the day after the next US election. Secondly, while what the US Government chooses to commit to (or not) is important it isn’t the totality of what can be achieved. China, the EU and others are seeing the political and moral, as well as the economic, opportunities in tackling climate change.

And beyond the State level, much can be done. Consumer choice, local government action and the private sector all have a hugely instrumental role to play in responding to climate change. And in the US, states such as California are taking a leadership role in tackling the issue. Moreover, while the global market is not invariably environmentally-friendly, as the costs of climate change become ever more apparent, so the market itself will steer towards green solutions so as to achieve co-called “climate neutrality”. Finally, the courts themselves are beginning to take climate change seriously. Decisions as far afield as The Netherlands, South Africa, Austria and the United States are considering, and increasingly accepting, climate arguments. Nevertheless, President Trump’s decision is a retrograde one.

Thus, is the US withdrawal from the Paris Agreement to be regretted? Absolutely. But less because of how far a treaty can coerce States to do things they don’t want to do, and more because participation is symbolic of broader political engagement. And it is the politics that will determine our planet’s – and our own – future. If we fail to keep within the temperature limits indicated by the Paris Agreement, “Make America Great Again” will resound hollow when we transgress one of the key planetary boundaries. The United States can withdraw from the world, but not from the planet.”

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Telders International Law Moot Court Competition

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Congratulations to Lincoln Law School’s Dr Christy Shucksmith who was invited to judge the UK national rounds of the 2017 Telders International Law Moot Court Competition at the University of Liverpool on the 11th March. I was an honour to be involved in such a fantastic competition, particularly as a previous participant in the 2008 national and international rounds.

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