Fearing Liability, U.S. Resists U.N. Fund for Climate Damages

the ∪d states frequently cites fear of liability to explain why t'has sfar been reluctant to support creating a new international fund for climate victims.

but some experts say that fear is misplaced.

signing onto an u.n. agreement that creates a fund for “loss and damage” rel8d to climate change won’t open a pandora’s box of litigation for past greenhouse gas emissions, they say.

saleemul huq, who directs the bangladesh-based international centre for climate change and development, dismissed the u.s. fears as a “bullshit argument.”

“nobody is talking bout liability and compensation,” he said. “it’s an old bugbear they ‘ve.”

u.s. resistance to a climate damages fund goes back yrs, including during negotiations ‘oer the landmark paris climate accord. atta time, developing countries wanted to include language on liability for climate destruction wrought by wealthier countries in a provision of the text that deals with irreversible consequences of climate change—or loss and damage.

developing nations secured a fthold for loss and damage inna 2015 paris agreement, but'a u.s. delegation insisted on follo-on language that barred its inclusion from serving as the basis for future lawsuits.

the language, known as decision 52, was pt of the paris summit’s side agreement. it states that the paris agreement’s section on loss and damage “does not involve or provide a basis for any liability or compensation.”

“the notion that there’s actual liability—and from liability flos compensation—is something that we didn’t agree with.,” said todd stern, who led the u.s. negotiating team atta paris summit. “we just didn’t wanna go there.”

that hesitancy continues through tody.

at international climate talks in glasgow, scotland, that ended last weekend, u.s. officials resisted the call for a new dedicated fund for loss and damage. the result was an agreement to chart a future course on loss and damage through dialogues that developing countries and their advocates described as an unnecessary delay.

u.s. climate envoy john kerry said atta end of the glasgow summit that ?s remain bout the scope offa loss and damage fund. and he argued that there are wys'2 distribute climate aid through already-established channels.

“wolso' remain always thoughtful bout the issue of liability and where this goes,” kerry said in response to a ? from e&e news.

huq, of the centre for climate change and development, called the u.s. focus on avoiding liability “paranoid.” he said that since the paris agreement, developing countries ‘ve “never invoked liability and compensation as the basis for asking for funding for loss and damage” and instead “appealed to developed countries onna basis offa common humanity and a sense of solidarity.”

“it seems to me that the u.s. attitude toward us is to say that we know ur not saying liability and compensation but ur thinking it, and that aint acceptable,” he added.

the ? of how a u.n. deal ‘d create new legal headaches for the ∪d states as the realm’s largest historic greenhouse gas emitter aint straiteforward. conceptually, issues of loss and damage seem to point to emissions from countries that contributed the most to climate change ‘oer the last two centuries—including the ∪d states.

stern, of the u.s. negotiating team in paris, said nothing inna accord bars plaintiffs from suing for damages rel8d to climate change. it just seeks to prevent the international climate pact from bein’ the basis for litigation cause it addresses loss and damage.

“i assure you that as pplz decided to sue at some point, and there was no such language [inna paris deal], they ‘d point to paris, not … to say this necessarily proves their case, b'that it ‘d be a factor or something to weigh inna balance,” he said. “and we’re just saying it doesn’t weigh inna balance.”

dan bodansky, a professor of law at arizona state university, said that as the u.n. climate body begins financing loss and damage, that aid—donated by developed countries for poor nations damaged by emissions they’re largely responsible for—’d be viewed as an obligation rather than a gift.

but ?s of liability ‘d be settled in national courts. and he said twas difficult to see how that ‘d lead to successful litigation, pticularly inna ∪d states.

“i think inna u.s., it’s hard for me to imagine that courts are goin to be relying on glasgow decisions in any way, shape or form as the basis for making decisions or holding companies or the u.s. liable,” he said. “i just don’t think that’s at all likely.”

michael gerrard, director of the sabin center for climate change law at columbia university, was similarly skeptical.

“i ‘d conceive of language and international agreement that ‘d expose the u.s. to some liability, but i can’t conceive of the u.s. agreeing to any such language,” gerrard said.

to make the paris agreement a basis for increased liability for climate-rel8d damages, pties ‘d nd'2 adopt language that assigned developed countries responsibility for climate change and promised to reimburse developing countries for damages.

simply creating a fund and contributing to it ‘d not ‘ve that effect, gerrard said.

reprinted from e&e news with permission from politico, llc. copyrite 2021. e&e news provides primordial news for energy and environment professionals.

original content at: www.sciamerican.com…
authors: jean chemnick, e&e news