The World Court Rules on Fossil Fuels: Flaster Greenberg

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The International Court of Justice (ICJ) at The Hague thrust itself into the energy/climate debate last week. Via a unanimous advisory opinion issued in connection with a complaint filed by the nation of Vanuatu, the ICJ ruled that government actions driving climate change are illegal and that states are legally obligated both to cut their emissions and to compensate nations that are at risk of the effects of climate change.

Vanuatu, a tiny island nation in the Pacific, has warned that its entire land area may be swallowed up by predicted rising sea levels. Agreeing with Vanuatu’s position, ICJ President Yuji Isawawa’s written decision declared that climate change is an "urgent and existential threat of planetary proportions.”

The sweeping ICJ ruling contains broad implications for the future of the fossil fuel industry and the greenhouse gases (GHGs) that it produces. Most significantly, "the Court reaffirmed that a state’s failure to take appropriate measures to protect the climate system from GHGs—including via fossil fuel production, consumption, licensing, or subsidies—may amount to an internationally wrongful act (para. 427). Importantly, the wrongful act lies not in the emissions themselves, but in breaching the obligation to prevent significant climate harm." (Source).

While countries like the United States, which are not members of the ICJ, likely will ignore what is only an advisory opinion even for ICJ members, one can still expect climate activists to attempt to use this opinion as dramatically as possible. Indeed, it is not out of the question to anticipate that activists will seek international arrest warrants for directors of fossil fuel companies, citing the ICJ opinion as their foundation despite its advisory nature.

Regardless of the above, one likely result of this ruling will be to spread chaos in world energy supply and availability. Will Dutch energy companies like Shell and British energy companies like BP henceforth be allowed to continue operating at all? If so, under what future restrictions? As renewables like solar, wind, and geothermal constitute only a tiny part of world energy supply, does this opinion relegate poorer countries to perpetual poverty as they will now face almost guaranteed energy insecurity when heretofore conventional (i.e., fossil fuel) energy sources go away?

Internally, certain nations already find themselves battered in two directions. Nowhere will that be truer than in Canada, where the western provinces are threatening "separation" over energy issues, yet new Prime Minister Marc Carney has demurred in allowing increased fossil fuel development to continue to occur. (Source). This ruling potentially now places Mr. Carney in an even deeper legal hole internationally, as he can either possibly tear his nation apart or face claims that he is purposely violating international law. (Source).

While the ICJ ruling otherwise sounds commendable to those who claim their only goal is to save the planet, it nevertheless highlights the uneasy relationship between law and science that permeates the issue of climate change generally, and energy policy specifically. By seeking to discourage or eliminate fossil fuels altogether, the World Court is, in fact, forcing future international economic development to rely upon intermittent renewables at a time when the science is just not there, yet, for these sources alone, to propel the future world economy. The result could be both economic and environmental disaster in much of the developed world, as locals, stripped of their most reliable power source, may have no choice but to resort to things like deforestation and other environmentally destructive methods to provide the energy that they will need to survive.

For the international environmental community, last week's ICJ ruling might turn out to be the ultimate example of "be careful what you wish for, you just may get it."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

© Flaster Greenberg PC

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