Efforts to deal effectively with loss and damage (L&D) in the UN climate regime, and to provide for avenues to remedy associated harms, have so far failed.
While these efforts are ongoing, it is becoming increasingly clear that a broad range of international regimes and domestic legal systems will be challenged to respond to calls for appropriate remedies for those harmed by L&D. In a recent publication in Climate Policy, we explore, at a conceptual level, the many issues that will arise as legal systems around the world are confronted with L&D claims. We are following up this initial work with a more in dept analysis in an upcoming Research Handbook on Loss and Damage to be published by Edward Elgar in early 2021. In this article, we offer a brief introduction to the issues we explore more fully in the Climate Policy article and in the book. We start with a high-level overview of issues related to the scope and definition of L&D.
Defining Loss & Damage
L&D is not defined in the UN climate regime. It has been suggested in the literature, however, that the phrase ‘loss and damage’ recognizes two categories of harm. One category involves permanent harm, or irrecoverable ‘loss’, such as the loss of landmass from sea level rise. The second category involves reparable or recoverable ‘damage’, such as shoreline damage from storms.
Other ways the concept of L&D has been delineated is between economic and non-economic L&D, and between slow onset and extreme weather events.
The focus has been on harm caused by human-induced climate change itself, and includes harm to people and to natural systems.
A more controversial category of harm associated with climate change not clearly falling within the definition of L&D is harm caused by response measures, including by mitigation efforts, adaptation, and geoengineering.
A set of concepts that may help to further clarify the meaning and scope of L&D are the terms ‘avoided’, ‘unavoided’, and ‘unavoidable’ L&D, introduced by Verheyen in one of the earlier research reports on the issue.
‘Avoided’ refers to the climate impacts prevented by existing mitigation efforts. ‘Avoidable’ refers to impacts that can still be avoided through enhanced mitigation and through adaptation. ‘Unavoidable’ L&D are impacts that are not preventable through future efforts. They are already inevitable as a result of past actions and cannot be avoided even with best efforts. Unavoidable L&D is also referred to as ‘locked in’.
Loss & Damage, Mitigation and Adaptation
It is important to consider the relationship between mitigation, adaptation and L&D. It is well recognized that the level of mitigation affects the scale of L&D. The more ambitious our collective mitigation effort, the less future L&D we will suffer. The relationship between adaptation and L&D is similarly close, but more complex. Indeed, when the Warsaw international mechanism for loss and damage associated with climate change impacts (WIM) was established, it was placed within the Cancun Adaptation Framework. The preamble of the decision by the Conference of the Parties (COP) establishing the WIM acknowledges that L&D arising from climate change ‘includes, and in some cases involves more than, that which can be reduced by adaptation’.
Adaptation efforts are critical to reducing the amount of L&D caused by climate change. Much can be done to assist those affected by climate change, both human and natural systems, to adapt. Adjustments to agricultural and forest management practices to deal with changes in temperature or precipitation patterns are among the many examples. Of course, not everyone affected by climate change has the necessary capacity, resources or other means to maximize adaptation opportunities. This means that there may be theoretical opportunities to avoid L&D through effective adaptation that are not realized.
This, in itself, makes it difficult to draw a clear line between adaptation and L&D.
The issue of displacement is illustrative of the complex inter-relationship between adaptation and L&D. If we take a hypothetical small island state that is unable to protect some or all of its territory from sea level rise, one might be inclined to view this as a failure of adaptation, and the resulting impact as L&D suffered by the residents of the affected small island state. However, the failure to protect its territory could either be as a result of technical adaptation limits, or it could be related to the lack of financial resources to implement the necessary measures. Furthermore, how the small island state itself (in case of internal displacement) and the global community (in case of external displacement) responds to the loss of territory will ultimately affect the scale and distribution of the resulting harm. How much say do those displaced have over the preferred solutions? To what extent do the solutions cause L&D to others adversely affected by these solutions? To what extent do the solutions offer opportunities either to those displaced or to those who receive them? Is the focus on individual impacts or on collective L&D, such as loss of culture and community? Are efforts to find solutions for displaced persons to minimize their individual or collective L&D considered adaptation, or is adaptation limited to efforts to preserve the territory of the small island state?
These are among the issues that arise in efforts to understand and delineate the complex relationship between adaptation and L&D.
Loss & Damage within the UN Climate Regime
Efforts under the UN climate regime to fully integrate L&D into the finance, transparency and stocktake elements of the Paris Agreement have been met with strong resistance from key developed countries. This has important implications for the consideration of L&D in the future, particularly its role in the 5-year review cycles under the Paris Agreement designed to increase ambition over time. The future of the issue within the UN climate regime generally remains uncertain, and the prospects for addressing funding needs to actually address L&D remain bleak. The focus, for now, will continue to be on improving understanding of the challenge, and to explore non-monetary avenues to help Parties manage the impacts.
The Pursuit of Remedies for Loss & Damage outside the UN Climate Regime
Attention to what avenues might exist outside the UN climate regime to pursue remedies for L&D leads to a wide range of conceptual questions that will be the primary focus of this paper. For example, within the climate regime, one might presume that the actors seeking remedies for L&D (if, indeed, remedies were to be available) would be states, although initial discussions tended to treat ‘vulnerable countries as populations’, rather than states.
Similarly, under the climate regime, it has been presumed by most Parties, at least for now, that those who might have a responsibility to fund L&D are also states.
Outside the climate regime, this clearly cannot be presumed.
As perspectives on L&D from outside the climate regime are considered, attention shifts to a wide range of actors and institutions, and new areas of law, that are all potentially relevant to the search for remedies. For example, what is the relevance, if any, of migration and refugee law, disaster law, law of the sea, or international human rights law, to the question of L&D for climate harms? What is the relationship between L&D, and climate justice? Many areas of law will be challenged to deal with L&D, and as a result, the issue needs to be considered from a great variety of perspectives.
The question how to prepare legal systems for dealing fairly and effectively with claims for loss and damage raise a number of basic questions, questions that all legal systems who face such claims will have to come to terms with. The first question we identified is the need to frame the harm suffered. One particularly challenging element is to separate loss and damage from baseline conditions, or what would have happened but for human induced climate change. A related issue is whether compensable harm is limited to impacts that have clear economic consequences, or whether non-economic impacts must be included.
Clarity on who can bring a claim is a similarly critical and challenging issue facing legal systems. Among potential claimants are various levels of governments, and a range of non-state actors, from indigenous communities to companies and individuals. The more challenging questions arise with respect to claims brought on behalf of children, future generations and non-humans impacted by climate change. Access by foreign claimants, and questions of priority for particularly vulnerable claimants are among the many other issues to be resolved.
There are also a broad range of possible defendants to a claim for loss and damage. States, state actors, state owned enterprises, international organizations, and private actors are all potential defendants depending on the nature of the harm, the plaintiff, the legal system involved, and the remedies sought. Identifying appropriate defendants will be among the critical issues to be resolved for any legal system challenged to deal with liability or compensation for L&D, one that is closely connected to the question of the actionable wrong. To date, defendants have included governments, companies that have contributed significantly to GHG emissions, and companies that have hindered efforts to mitigate climate change.
Closely connected to the selection of appropriate defendants (or persons potentially responsible for providing the remedy) is the issue of the actions, omissions, or actionable wrongs that would hold the defendant responsible for contributing to the remedy. At one end of the spectrum, the ‘wrong’ may simply be the GHG emissions a company or state is responsible for.
A L&D fund or insurance scheme, for example, could be set up on a no-fault absolute liability basis, similar to the oil pollution funds set up to contribute to the clean-up of oils spills caused by tanker traffic.
Actionable wrongs, however, can take a range of forms. Exxon, for example, was sued in the US for misleading investors about the risk climate change poses to the company. 8
Actionable wrongs can also take the form of government action or inaction. The Urgenda case in the Netherlands and the Juliana case in the US are perhaps the most prominent examples to date, but actionable wrongs by state actors can range from the role they play in international negotiations to failing to set adequate domestic targets and failing to meet targets set, which could include failure to regulate to prevent and remedy climate harms.
Questions about potential remedies are among the other key issues legal systems are challenged to address. Beyond monetary damages, legal systems will increasingly be challenged to consider a broad range of remedies, including restitution, satisfaction and other forms of reparation.
Legal systems will be challenged to consider whether and how to monetise harms such as loss of ecosystem services, loss of species, and loss of opportunity for children and future generations.
Drawing upon resilience theorists and others, would funding or support for recovery from L&D necessarily mean returning people to a place from which they came, or rebuilding ecosystems to the state that they were ‘before’ (assuming a precise time can be identified), or would L&D be reconcilable with the transformation of socio-ecological systems from one state to another? Moreover, could devising remedies for L&D contribute to more fundamental societal transformations essential for resilient futures?
Prospects for a comprehensive solution to L&D under the climate regime are tenuous at best. This means that many international and domestic legal systems will increasingly be challenged to deal with aspects of L&D and to offer a remedy to those harmed. In our recent article in Climate Policy, we consider in more detail the range of issues that legal systems around the world will need to grapple with.
It is important in our view for relevant legal system to consider carefully who might bring claims for L&D, what remedies might be sought, who the remedies might be sought against, and what the actionable wrong might be. These are issues that both domestic and international legal systems challenged to respond to claims for L&D will face. Of course, each will likely take its own unique approach, resulting in a patchwork of venues with a different mix of eligible claimants, respondents, remedies and actionable wrongs. It remains to be seen whether this patchwork will be able to eventually develop into a cohesive whole that offers appropriate remedies to all legitimate claimants.
- Linda Siegele, “Loss and Damage (Article 8)” in Daniel Klein et al, eds, The Paris Agreement on Climate Change: Analysis and Commentary (Oxford: Oxford University Press, 2017) 224;Emma Lees, “Responsibility and Liability for Climate Loss and Damage after Paris” (2017) 17:1 Climate Policy 59.
- Climate Development and Knowledge Network (CDKN) et al, Framing the Loss and Damage Debate: A Conservation Starter (Loss and Damage in Vulnerable Countries Initiative: 2012), online: < https://perma.cc/FBQ9-ZT7D>; James Morrissey & Anthony Oliver-Smith, Perspectives on Non-Economic Loss & Damage: Understanding Values at Risk from Climate Change (Loss and Damage in Vulnerable Countries Initiative: 2013), online: < https://perma.cc/X2D6-9QSM>; Ainun Nishat et al, A Range of Approaches to Address Loss and Damage from Climate Change Impacts in Bangladesh (Loss and Damage in Vulnerable Countries Initiative: 2013), online: <ttp://asiapacificadapt.net/sites/default/files/resource/attach/a-range-of-approaches-to-address-loss-and-damage-from-climate-change-impacts-in-bangladesh.pdf>.
- Sam Fankhauser, Simon Dietz & Phillip Gradwell, “Noneconomic Losses in the Context of the UNFCCC Work Programme on Loss and Damage” (2014) London, UK: Centre for Climate Change Economics and Policy – Grantham Research Institute on Climate Change and the Environment Policy Paper; Juan P Hoffmaister, Doreen Stabinsky & Nathan Thanki, “Loss and Damage: Defining Slow Onset Events” (2012) Asia and Eastern Europe Regional Meeting Briefing Paper, online: <https://perma.cc/Y7KB-UR7Z>.
- Sam Adelman, “Climate Justice, Loss and Damage and Compensation for Small Island Development States” (2016) 7:1 Journal of Human Rights and the Environment 32.
- Dr. Roda Verheyen, Loss and Damage: Tackling Loss & Damage – A New Role for the Climate Regime? (Loss and Damage in Vulnerable Countries Initiative: 2012) at 6, online: <ttps://perma.cc/DNH7-LVGE>.
- Siegele, supra note 1 at 226; Lees, supra note 1; Warsaw International Mechanism for Loss and Damage Associated with Climate Change Impacts, Decision 2/ CP.19, UNFCC, 2014, UN Doc FCCC/ CP/ 2013/ 10/ Add.1 [UN Dec 2/CP.19].
- Marc van den Homberg & Colin McQuistan, ”Technology for Climate Justice: A Reporting Framework for Loss and Damage as Part of Key Global Agreements” in Reinhard Mechler et al, eds, Loss and Damage from Climate Change: Concepts, Methods and Policy Options? (Springer Cham, 2019) at 513.
- Benoit Mayer, “Whose Loss and Damage: Promoting the Agency of Beneficiary States” (2014) 4 Climate Law 267; UN Dec 2/CP.19, supra note 6; Karen McNamara et al, “The Complex Decision-Making of Climate-Induced Relocation: Adaptation and Loss and Damage” (2018) 18:1 Climate Policy 111.
- Matters Relating to the Implementation of the Paris Agreement, Dec 3/CMA.1, UNFCCC, 2018, UN Doc FCCC/PA/CMA/2018/3/Add.1; Siegele, supra note 1; Lees, supra note 1.
- Mayer, supra note 8.
- Jonathan Gewirtzman et al “Financing Loss and Damage: Reviewing options under the Warsaw international mechanism” 18:8 Climate Policy, 1076; Siegele, supra note 1.
- Richard Heede “Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers 1854-2010” (2014) 122 Climatic Change 229.
- Rosemary Lyster “A Fossil Fuel-Funded Climate Disaster Response Fund under the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts” 4:1 Transnational Environmental Law 125.
- People of the State of New York v. Exxon Mobil Corporation, Docket number: 452044/2018, (N.Y. Sup. Ct. 2020), online: <http://climatecasechart.com/case/people-v-exxon-mobil-corporation/>; Juliana v United States of America 217 F.Supp.3d 1224 (D Or 2016), Aiken J; Urgenda Foundation v The Netherlands (Ministry of Infrastructure and Environment) C/09/456689/HA ZA 13-1396 (District Court, The Hague, 2015), english translation, online: <ttps://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196>.
- Maxine Burkett “Climate Reparation” (2009) 10:2 Melbourne Journal of International Law 509 at 520.
- Lynda Collins & Heather McLeod-Kilmurray, The Canadian Law of Toxic Torts (Toronto: Thomson Reuters Canada, 2014); Richard Lord, Silke Goldberg, Lavanya Rajamani, Jutta Brunnee, eds, Climate Change Liability: Transnational Law and Practice (Cambridge, UK: Cambridge University Press, 2012).
- Morrissey & Oliver-Smith supra note 2; David Wrathall et al, “Problematising Loss and Damage” (2015) 8:2 International Journal of Global Warming 274.