Climate Change Fails To Top List Of Threats For Business Leaders At Davos

The Guardian - Tom Levitt

Geopolitical uncertainty, over-regulation and cyber attacks among biggest threats to business, survey of CEOs finds

Climate scientists have linked recent extreme rainfall in the UK to climate change, which they say has made the situation worse. Photograph: Ben Birchall/PA

The high profile UN summit on climate change in Paris appears to have had little impact on the decision making and worries of global business leaders.
Despite concerns about its impact on extreme weather events, such as recent flooding in the UK, climate change failed to register near the top of the list of business threats, according to a survey of 1,400 CEOs from around the world compiled by PricewaterhouseCoopers (PwC) and published at Davos this week.
Instead, over-regulation was listed as the biggest threat to business (by 79% of CEOs), followed by geopolitical uncertainty (74%) and other key threats including cyber attacks (61%).
In contrast, climate change and environmental damage was mentioned as a threat to business growth by just 50% of CEOs.
The findings were similar to a separate survey of 13,000 business leaders produced by the World Economic Forum (WEF). It also found a relative absence of concern about climate change and environmental risk amongst business leaders.
Business leaders from developed countries listed fiscal crisis and cyber-attacks as their biggest concerns, while in emerging and developing economies the biggest concern was unemployment, underemployment and energy price shocks. "No executive considers failure of climate mitigation and adaptation as the number one risk for doing business in his/her country," states the report.
By contrast, a wider survey of economists, academics and civil society also produced by the WEF listed climate change as the biggest potential threat to the global economy in 2016. A failure of climate change mitigation and adaptation was seen as likely to have a bigger impact than the spread of weapons of mass destruction, water crises, mass involuntary migration and a severe energy price shock.
PwC suggested that contrary to its findings CEOs were concerned about the impact of climate change. "We don't believe a low score in one question reflects overall thinking and action on it," a spokesperson told the Guardian. "A quarter of all CEOs included 'reduced environmental impacts' in the three outcomes that should be joint government and business priorities in the countries in which they are based... and they are showing greater understanding of environmental impacts in their business and supply chain."
PwC said the results from this year's survey also revealed a higher level of concern of climate change amongst CEOs than they did after the UN summit on climate change in Copenhagen in 2009 (50% vs 37%).

CEO responses to PwC on what they consider the top threats to business growth. Photograph: PwC

  
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The ‘Necessity Defence'– Should Climate Activists Be Allowed To Break The Law?

The Conversation - Tara Smith

delta5trial.org

Can you break the law to stop climate change … and get away with it? That’s exactly what five climate change activists wanted to argue at a recent criminal trial in Seattle, Washington.
In September 2014 the group tied themselves to a 25ft (8 metre) high “tripod” over a railway line in Washington State, US, to block a train carrying crude oil which, if used, would have contributed directly to carbon emissions and so climate change. The activists, now known as the “Delta 5”, relied on the so-called “necessity defence” to justify their actions and avoid criminal liability.
A successful “necessity defence” needs to show that the crime was necessary in order to prevent an even greater criminal act or irreparable evil. There should be no reasonable legal alternative available under the circumstances. In court, the Delta 5 argued that their actions to prevent the oil from reaching its destination were necessary to stop the greater harm of climate change. As such, they said they shouldn’t be held criminally responsible.
The activists hoped to set a new precedent in the United States which would have paved the way for climate activists in the future to more readily use necessity as a defence to criminal charges. In 2008, for example, a group of six Greenpeace activists were tried in the UK for property damage and trespass after shutting down a coal power station. They used the necessity defence and were acquitted by a jury.
The judge in Seattle, however, ruled that the defendants had failed to show that there was no reasonable legal alternative to their actions. Even though the judge was sympathetic to the activists cause, she was bound by case-law on the lack of evidence supporting a necessity defence and reluctantly instructed the jury to ignore all wider arguments about climate change. The five were found guilty of misdemeanour trespassing.
Legal recognition for “necessity” remains a long-term goal for climate activism, but the latest setback shows how difficult these arguments are to win in court. It’s not just climate change. Attempts to justify the use of marijuana for medical purposes have been met with mixed success, where successful necessity defences have been very much the exception rather than the rule.
Necessity has been most successful in cases involving potential crimes by doctors around the issue of consent, but there are major limits. It’s usually not recognised as a defence against murder charges, for example, a view that dates back to the 1880s when two shipwrecked sailors decided to kill and eat their subordinate, a cabin boy, for survival when lost at sea.

Playing by the rules isn’t working
While necessity is difficult to assert in climate activism trials, the Delta 5 and Greenpeace cases raise a big question: should activists be allowed to take matters into their own hands to prevent global warming and climate change? Given underwhelming results in combating this at the international level to date, arguably they should.

Delta 5 – taking the law into their own hands. delta5trial.org

The Paris climate change agreement in December was celebrated as a major achievement in bringing all states together, developed and developing alike, to agree on a common plan to reduce global carbon emissions. However, on closer inspection, it doesn’t seem to be ambitious enough to work as expected. Warming will be limited to 2.7°C, at best, while the agreement isn’t yet legally-binding. Climate change is still likely to have severe effects.

Robust action – without fear
If states are unwilling or unable to sufficiently reduce their carbon emissions in time to make a real difference, shouldn’t people around the world be encouraged to take robust action without fear of being thrown in jail for their efforts to do good?
Since the 1950s legal theorists have argued about the consequences for people who feel morally compelled to break the law. The so-called “Hart-Fuller” debate, which continues to divide legal scholars to this day, examined among other things the nature of laws in Nazi Germany – for example, was legislation which authorised the transportation of Jews to concentration camps valid law at the time?
The prominent legal philosopher HLA Hart argued yes: he believed laws continue to have legal force, despite a questionable moral basis. Lon Fuller, his rival, said that laws have an inner morality, without which there is nothing to be enforced or obeyed as “law”.
Fuller’s position may provide moral guidance to climate activists who perceive as immoral the legal framework currently configured to see global temperatures far exceed the 2°C limit. They can use society’s understanding of what the law ought to be – one that protects the environment – to justify their decision to disobey.
Hart would say that the law should not be disobeyed despite its questionable moral basis because to do so may open the door to anarchy and conflict. However the necessity defence falls squarely within the letter of the law, and therefore Hart’s theory, though it remains notoriously difficult to prove. Climate activists should bear in mind that they will need convincing proof of no reasonable legal alternative to their actions in order to increase their chances of success when raising necessity as a defence in future criminal trials.
The best way for climate activists to do this would be to leverage conventional legal and political routes as much as possible to achieve their goals. Once all of these options have been exhausted, then there may be no further reasonable legal alternatives left and as such, acts of civil disobedience which break the law may more easily be justified as being necessary. But as yet, strategies that draw upon Fuller’s theory of the inner morality of law, to justify disobeying the law regardless of reasonable legal alternatives, may not help activists keep a clean criminal record.

It is quite clear that necessity isn’t a reliable defence against criminal charges at present. But more sympathetic judges and juries in the future may radically transform the odds of success. The judge in the Delta 5’s case was sympathetic, though it didn’t lead to their successfully defending their position. As the effects of climate change become more and more noticeable, perhaps there will be no reasonable legal alternative in the future but to follow in their footsteps. The law just might keep pace.

Forcing Government Action on Climate Change: Two Noteworthy Legal Initiatives

Global Policy - David Bollier*

The doctrine of public trust compels the state to act as a faithful trustee of resources that belong to the general public. This is highly relevant to talks about climate change.

While much of the momentum to fight climate change is focused on political channels, there are parallel efforts using law to force government to take specific, enforceable actions to reduce carbon emissions. It’s a difficult battle, but in recent weeks two notable initiatives have gained further momentum – a court ruling relying on the public trust doctrine and a new human rights declaration that has broad international support.
The court ruling is related to a series of lawsuits brought by young people invoking the public trust doctrine to force governments to protect the atmosphere. Orchestrated by the advocacy organization Our Children’s Trust, the Atmospheric Trust Litigation suits have been filed in all state courts and in federal courts.
On November 19, one of those lawsuits succeeded. A superior court judge in Seattle issued a ruling that strongly recognizes the public trust doctrine as a applying to the atmosphere. The case sought to uphold science-based plans for carbon emissions reductions developed by Washington State’s Department of Ecology, as a way to protect the atmosphere for eight young people (the plaintiffs) and future generations.
The ruling is especially significant because it echoes a recent ruling by a New Mexico court that also strongly upholds the constitutional principle that the public trust doctrine applies to the atmosphere.
COP21 negotiators, are you listening?
The public trust doctrine is a ancient legal principle that requires government to act as a faithful trustee of resources that belong to the general public and future generations. Historically, this has applied primarily to navigable waters. The Atmospheric Trust Litigation suits want the courts to apply the public trust doctrine to the atmosphere as well, thereby forcing state governments and the federal government to commit to specific actions to reduce carbon emissions.
Judge Hollis R. Hill in Washington State declared that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” He found the public trust doctrine mandates that the state act through its designated agency “to protect what it holds in trust.” The judge also held that it was “nonsensical” to try to separate navigable waters from the atmosphere in applying the public trust doctrine because the two are inextricably linked.
The court validated the youths’ claims that the “scientific evidence is clear that the current rates of reduction mandated by Washington law...cannot ensure the survival of an environment in which [youth] can grow to adulthood safely.” The judge determined that the State has a “mandatory duty” to “preserve, protect, and enhance the air quality for the current and future generations,” and found the state’s current standards to fail that standard dramatically for several reasons.
The ATL lawsuits are potentially significant because they signal that even if the political branches of government will not uphold science-based climate policies to protect the public, the courts will. We need more such rulings that the government has a constitutional obligation to protect the atmosphere as a public trust asset crucial for the survival of our children.

Draft Declaration on Human Rights and Climate Change
There is another important legal initiative that is gaining attention -- the Draft Declaration on Human Rights and Climate Change. The Declaration, prepared by the Global Network for the Study of Human Rights and the Environment, invokes some of the most venerable human rights statements in history before going on to present “an alternative formulation of rights that foregrounds human rights while simultaneously protecting the rights of non-human living beings and systems from climate harms.”
Here are the first six principles of the Draft Declaration:

1. Human rights and a profound commitment to climate justice are interdependent and indivisible.
2. All human beings have the right to a secure, healthy and ecologically sound Earth system and to fairness, equity and justice in the provision of climate resilience, adaptation and mitigation.
3. All human beings have the right to a planetary climate suitable to meet equitably the needs of present generations without impairing the rights of future generations to meet equitably their needs.
4. All human beings have the right to information about and participation in decision-making related to alterations to the physical environments they rely upon for their health and survival.
5. All human beings have the right to the highest attainable standard of health free from environmental pollution, degradation and the emissions of environmental toxins and to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below the tipping point of two degrees centigrade above preindustrial levels.
6. All human beings have the right to investments in adaptation and mitigation to prevent the deleterious consequences of anthropogenic climate change, and to timely assistance in the event of climate change driven catastrophes.

The Declaration is open for amendment until February 19, 2016. You can endorse the Declaration or suggest amendments by emailing Kirsty Davies at kirsty.davies/at/mq.edu.au. It is already anticipated that the next draft will focus more explicitly on indigenous rights and emphasize “the presuppositional need for direct protection of the living order as a condition for fulfilling human rights in the era of climate change.”

*David Bollier is author, activist, blogger and consultant. He's the co-founder of the Commons Strategies Group, a consulting project that works to promote the commons internationally. He was Founding Editor of Onthecommons.org and a Fellow of On the Commons from 2004 to 2010.

Links

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• Reinvigorating International Climate Policy: A Comprehensive Framework for Effective Nonstate Action
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