COP27 Comment: Mopping the floor while the tap is running...

CGLN Fellow, Maurits Dolmans, shares his views post COP27...

Attending the “business and civil society” side of COP27 was fascinating, although the overall diplomatic result is mixed and worrying.

Brazil’s return to the climate fold was certainly exciting, as was the vocal and enthusiastic presence of youth and indigenous societies, and the fact that the US after the mid-term elections were able to continue as a constructive presence. The resumption of US-Chinese climate diplomacy came as a huge relief. It is sometimes said that the real COP work is done on the business and civil society side, where relationships are forged, climate technology deals are done, and exciting ideas are exchanged. In fact, we met so many creative, innovative and interesting people from a wide range of countries and organizations. Just to mention two examples, the truly inspiring 4p1000 and Sekem teams (CGLN agriculture fellows, take note!). Some of the young speakers – including in my session – were truly impressive, thoughtful and eloquent.

My own participation consisted of meetings on climate technology innovation as well as a presentation and debate on the need for the law and enforcement policies to adjust to the climate crisis. We need regulation, carbon taxation, litigation, education, reforestation, innovation, but also cooperation in the private sector to help achieve the Paris Agreement goals. Climate change is an existential threat, and we have to pull out all the stops. As a case study, I discussed the “Race to Zero” undertakings by banks and insurance firms in the context of the Glasgow Financial Alliance for Net Zero (GFANZ, led by Mark Carney) not to insure and invest in new unabated coal power plants. Some fossil fuel firms and their political allies have threated legal action against these commitments, under antitrust law, which caused GFANZ to withdraw from the commitment. I explained and we debated why the threat is wrong as a matter of law, economics, ethics, and climate science. Others in the panel discussed climate litigation and regulation. Climate transition means legal and policy transition, too!

“1.5 barely alive..”. A major focus of the diplomatic negotiations at COP27 was the “loss and damage” fund – to support “vulnerable countries” affected by extreme weather events and climate change. The principle should be obvious: the polluter pays. This is based on sound principles of law, economics, and ethics. Without a "polluter pays" rule, there is not enough incentive for countries and industries to clean up and cut emissions. And a polluter pays principle reflects the Golden Rule (do not do to others what you don't want them to do to you). This is the one rule or reciprocity and fairness that all religions and philosophies have in common. By all means count historical emissions to determine the amounts to be paid, but arguments that current and future emissions by developed countries like China, Saudi Arabia, Gulf States, or South Korea should be free are unfair, and dangerous. They lead to a collective action problem where no one wants to pay because others don't pay.

It is good that COP27 negotiators eventually realized this, as imperfect as the compromise was. The fund remains voluntary, and we do not know whether countries like Saudi Arabia, Gulf States, and China will contribute – even though Chinese emissions are skyrocketing. If they don’t, there is a risk we remain locked in a "climate prisoners’ dilemma".

Worse, the fund focuses on adaptation (as do the parallel Global Shield Financing Facility, a G7-led plan to insure climate risks, and the Global Goal on Adaptation). No progress was made on cutting emissions, apart from voluntary promises to cut methane emissions by 30% below 2020 levels by 2030 (not binding, but important because methane is an 80x stronger greenhouse gas than CO2). Alok Sharma summarized it well: " Emissions peaking before 2025, as the science tells us is necessary. Not in this text. Clear follow-through on the phase down of coal. Not in this text. A clear commitment to phase out all fossil fuels. Not in this text. And the energy text, weakened, in the final minutes.”. … 1.5C was weak, and it remains on life support". The greatest emitter, China, did not improve on its 2060 net zero ambition. A coalition of more than 80 countries supported a phase-down of all fossil fuels, but this was blocked by countries like Russia and Saudi Arabia. The conference eventually agreed on a “global transition to low emissions” – a diplomatic ambiguity that might include expansion of new oil and gas projects with carbon capture and sequestration.

In sum, we have a backwards-looking result, and little progress. Remember also that just before COP27, GFANZ dissociated itself from the Race to Zero and IEA’s "no new unabated coal" milestones, and emissions are increasing, no thanks to Russia. We are therefore in fact backsliding in climate change mitigation when we should be making progress. COP28 will have to address these shortcomings, implement the loss and damage fund, and start to make Paris Agreement commitments legally binding. The IEA Roadmap for the Global Energy Sector and the IPCC Sixth Assessment Reports show we need a Fossil Fuel Non-Proliferation Agreement, backed up by a global registry of fossil fuels. We should also put on the agenda support for new (4th generation) nuclear technology, which is a major promise for energy transition. Molten Salt Power Generation offers the promise of energy cheaper and safer than fossil fuels, to complement renewables, in which case the market hopefully can drive the world to a true energy transition. (See the report on a recent CGLN conference on this topic here.)

Lost… Last, and least, there are some organizational and logistical issues, that were perhaps symbolic. Site maps were missing or upside down, and the Blue Zone was a veritable maze. It would have been great to have a single, integrated, and continuously updated app with an agenda and search function for (categories of) events in different venues and pavilions in all zones. One of the apps had to be deleted because of security concerns. As a result, we found it hard to plan, and we were unaware until after the fact (or never) of debates, events, and presentations that were directly relevant for us. The upside was that we gained spontaneity, enjoying events we hit upon by accident. But surely, we can have both?

Pay to play. The zoning, too, was a mystery. Understandably, access to the negotiation zone was restricted. But apart from that, there were three different and separated zones: a UN-accredited Blue Zone with expensive country pavilions, NGOs, the youth Pavilion, as well as companies; a Green Zone in a different area a bus ride away, with lots of artwork (some of it unfortunately emblematic of the world’s state), as well as companies, NGOs, Egyptian Government, universities and business; and a separate Innovation Zone, with NGOs and businesses, and hubs where we had some excellent debates and workshops, but again a bus ride away. Not to speak of the Saudi Green Initiative Domes, which were placed in splendid isolation. The “pay to play” model inappropriately disadvantaged smaller organizations and poorer countries. And why were these areas separated and so far away from each other, and why was access to the Green and Blue zones so controlled? It resulted in unequal attendance, with certain areas buzzing and others near empty. Why not merge these zones in the future (even if it means the UN being more generous with accreditation)? Pressure groups in particular were contained, and protests seemed sparse and controlled. The apparent fear of disruption ignores that responsible protest can play an important role in these events, as outlets for ideas and feelings, but also as creative forces driving the political and diplomatic effort, and providing genuine legitimacy for the ultimate decision – which is difficult to achieve if a portion of stakeholders feel unheard and excluded. What about asking all participants (including, but not just, activist organizations) to enter into some kind of a civil contract, with a commitment that actions and debate will be respectful, seeking true discussion and exchange, and not destructive or unduly disruptive, in exchange for more liberal accreditation?

It is kind of remarkable that so many countries, some of whom are at war with each other, can agree on anything. The quality and enthusiasm of the civil society, the breadth and depth of creative ideas and action, and the range of innovation, give some hope for the climate, humanity and the world. But we are desperately mopping the floor while water keeps pouring from an open tap. We need to close that tap, and cut the emissions! Let’s hope we do that at COP28, at the latest.

A picture from the “Green Zone”. Emblematic of the world’s state?

“Maurits Dolmans is a CGLN Fellow, and an antitrust lawyer in London and Brussels, in the firm of Cleary Gottlieb Steen & Hamilton. Disclaimer: Use of information in this blog does not create or continue an attorney-client relationship, nor should the information herein be construed as legal advice. This communication may constitute “Attorney Advertising” under the rules or law of certain jurisdictions. It reflects my personal views and does not bind the firm or any clients.”


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