Hoe kunnen juristen de klimaatcrisis helpen beteugelen?

Datum bericht: 27 januari 2020

Hoe kunnen juristen de klimaatcrisis helpen beteugelen? Hoogleraar Rechtsstaat Ybo Buruma ging tijdens het CPO-congres 'Energie & recht' in gesprek met vooraanstaand klimaatwetenschapper en hoogleraar Ecologie en evolutionaire biologie aan Princeton University Stephen Pacala:

"The legal system could be the backstop for humanity against the inevitable tendency to shirk and free-ride."

Bekijk nu deze video, of lees hieronder de tekst.

If you say everyone can do something, what do you say lawyers could do?

What society, what our species needs lawyers to do is, I think, really straightforward at the broadest stroke. The fact is that - we'll talk about this more - but to make the energy transition from our current emitting energy system to a net-zero energy emitting system during the course of a single generation is going to require unprecedented action by governments and really all aspects of society. And the thing is that we don't have many institutions that are tailored to this kind of a long generation-scale effort. In particular, people in executive and legislative branches of government face re-election every few years. So there is incessant and repeated temptation to succumb to temporal free-riding and suspend action so that you can reward constituents in some way over the short term. And because the legal system, and the judiciary, in particular is structured around evidentiary standards. There is a way for the judiciary to maintain the effort. To be the sort of backstop for humanity against the inevitable tendency to shirk and free-ride. And so humanity needs every lawyer to educate him- or herself about this issue so that they can engage in that effort. And we'll forever be grateful to those who do.

Ok, that's the first lesson you teach them. They have to focus on this big issue, climate issue the environmental nexus you talked about. Now, you know that at this moment there is a big case in the Netherlands the Urgenda case, in which the government was thought to be liable or rather, it was ordered to do more than it did before. My question to you is, what do you think about the urgency of reducing these carbon emissions from this perspective?

So, from a scientific standpoint it is clear that the greenhouse gasses in the atmosphere are dangerous and are already causing considerable harm to humanity. And so, wisely, international processes that led i.e. to the Paris agreement have identified targets that are consistent with a sort of a practical barrier against harm. And the most stringent of those, the aspirational targets from the Paris agreement would have every industrialised society go to essentially net zero greenhouse gas  emissions. That is eliminated all around 2050. Now, that's not that materially different from 95%, for instance.

We now have alternatives to our emitting and industrial technology and agricultural technology which we can use, that lead to no greenhouse gas emissions. Their complete elimination. But to do this in a practical sense, what we need to do is to replace our infrastructure with non-emitting infrastructure. Which we have in hand, we know how to do it. When the emitting infrastructure wears out and becomes obsolescent, right? That's the way to keep costs manageable. And that means that from here on forward every time an emitting power plant, for example, wears out we should be replacing it with non-emitting alternatives. And so now is the time when delay really starts to matter. The good news is, it is practical to change our energy system for a non-emitting one over the next 30 years. The bad news is that now procrastination is really going to cost us. By creating new emitting infrastructure that we'll have to contend with at a time when we need to be replacing it.

Ok. That's clear. Now, of course there are all kinds of, let's say, economic problems involved. I mean, it's the difference between growth and green, you might say. And maybe we could change the subject a little bit to issues of biodiversity one of the pillars of your environmental nexus. And if I think of how some entrepreneurs in the Netherlands are thinking about it... They say: Look here, you can't build a road or do something else which is necessary to do. We can't even bring something about to conserve nature because there is one of the 707 species of salamander that should be protected. And then you might ask... Well, I can imagine that with these huge issues climate and environment is more important than growth. But should we really always be that specific in let's say these  biodiversity issues that you will always say economy is less important than environment?

So, I think it's very important and I will address the issue of biodiversity in just another two or three sentences, but I want to reaffirm that for climate change, I do not believe that there is a conflict between economic growth and climate mitigation. We now have the technology that is roughly cost comparable to what we have today that will solve the climate problem. And so we have an imperative  responsibility to implement it. It is even possible that we will receive extra economic growth if we adopt these technologies early and lead. because we can, for example, export them.

So, I think, with climate change and the problem... There is no conflict with economic growth. Biodiversity is a different matter. Again, I think we need to draw a distinction between an endangered species act that prevents a road to save a salamander.

Which I believe was about nitrogen pollution for the 18,000 units. Nitrogen pollution has a couple of different forms. And make no mistake, nitrogen pollution hurts people directly. Nitrogen emissions into the air, fossil nitrogen emissions into the air actually kill people. And nitrogen emissions into the water pollute the water. And when they escape they poison ecosystems. When they escape into the ocean they create anoxic zones and other problems. So nitrogen pollution is much more like greenhouse gas pollution than it is like the endangered species problem. I think it's actually a simpler issue, ethically at least. On the issue of whether we should stop a road to save a salamander. Unfortunately that depends ultimately on aesthetic and ethical judgement that will differ among people. And so, I think, this is a case where you really have to leave it up to voters. I know, I love salamanders, personally. I have since I was a kid, right? I remember when I was young there was a developer who had been prevented from building a golf course that was going to cost 200 million dollars to develop because it would make a butterfly species extinct. And he wrote an influential article in a national magazine that had the refrain in it, what is more important: a butterfly or a 200 million dollar golf course? And it had the absolutely opposite impact. Because everyone who read it said: well, of course, the butterfly.

Ybo Buruma is raadsheer in de Hoge Raad en bijzonder hoogleraar met leeropdracht Rechtsstaat aan de Radboud Universiteit. Van 2015 tot 2018 was hij CPO-hoogleraar met de leeropdracht Rechtsstaat, rechtsvorming en democratie.

Stephen Pacala is klimaatwetenschapper en hoogleraar Ecologie en evolutionaire biologie aan Princeton University.