Climate Loss and Damage, Legal House of Cards

The big news out of COP27 Sharm El-Sheikh concerns funding for climate “loss and damage.”

Reuters  At COP27, climate ‘loss and damage’ funding makes it on the table

Columbia Climate School Loss and Damage: What Is It, and Will There Be Progress at COP27?

CarbonBrief COP27: Why is addressing ‘loss and damage’ crucial for climate justice?

Etc., Etc., Etc.

Mike Hulme explained the house of cards underlying the claims for compensation from extreme weather loss and damage.  He addressed this directly in his 2016 article Can (and Should) “Loss and Damage” be Attributed to Climate Change?.  Excerpts in italics with my bolds and added images.

One of the outcomes of the eighteenth negotiating session of the Conference of the Parties (COP18) to the UN Framework Convention on Climate Change, held in Doha last December, was the agreement to establish institutional arrangements to “address loss and damage associated with the impacts of climate change.” This opens up new possibilities for allocating international climate adaptation finance to developing countries. A meeting this week in Bonn (25–27 February), co-organized by the UN University Institute for Environmental and Human Security and the Loss and Damage in Vulnerable Countries Initiative, is bringing together various scholars and policymakers to consider how this decision might be implemented, possibly by as early as 2015.

At the heart of the loss and damage (L&D) agenda is the idea of attribution—that specific losses and damages in developing countries can be “associated with the impacts of climate change,” where “climate change” means human-caused alterations to climate. It is therefore not just any L&D that qualify for financial assistance under the Convention; it is L&D attributable to or “associated with” a very specific causal pathway.

Developing countries face some serious difficulties—at best, ambiguities—
with this approach to directing climate adaptation finance.

This is particularly so given the argument that the new science of weather attribution opens the possibility for a framework of legal liability for L&D, which has recently gained prominence (see here and here). Weather attribution science seeks to generate model-based estimates of the likelihood that human influence on the climate caused specific weather extremes.

Weather attribution should not, however, be used to make the funding of climate adaptation in developing countries dependent on proving liability for weather extremes.

There are four specific problems with using the post-Doha negotiations on L&D to advance the legal liability paradigm for climate adaptation. First, with what level of confidence can it be shown that specific weather or climate hazards in particular places are caused by anthropogenic climate change, as opposed to a naturally varying climate? Weather attribution scientists claim that such knowledge is achievable, but this knowledge will be partial, probabilistic, and open to contestation in the courts.

Second, even if such scientific claims were defendable, how will we define “anthropogenic?” Weather attribution science—if it is to be used to support a legal liability paradigm—needs to be capable of distinguishing between the meteorological effects of carbon dioxide emissions from fossil fuels and those from land use change, and between the effects of carbon dioxide and other greenhouse gases, black carbon (soot), and aerosol emissions. Each of these sources and types of climate-altering agents implicates different social and political actors and interests, so to establish liability in the courts, any given weather or climate hazard would need to be broken down into a profile of multiple fractional attributions. This adds a further layer of complexity and contestation to the approach.

Third, L&D may often be as much—or more—a function of levels of social and infrastructural development as it is a function of weather or climate hazard. Whether or not an atmospheric hazard is (partially) attributable to a liable human actor or institution is hardly the determining factor on the extent of the L&D. A legal liability framework based on attribution science promotes a “pollutionist approach” to climate adaptation and human welfare rather than a “developmentalist approach.” Under a pollutionist approach, adaptation is primarily about avoiding the dangers of human-induced climate change rather than building human resilience to a range of weather risks irrespective of cause. This approach has very specific political ramifications, serving some interests rather than others (e.g., technocratic and centralized control of adaptation funding over values-centered and decentralized control).

Finally, if such a legal framework were to be adopted, then what account should be taken of “gains and benefits” that might accrue to developing countries as a result of the impacts of climate change? Not all changes in weather and climate hazard as a result of human influence are detrimental to human welfare, and the principle of symmetry would demand that a full cost-benefit analysis lie at the heart of such a legal framework. This introduces another tier of complexity and contestation.

Following Doha and the COP18, the loss and damage agenda now has institutional force, and the coming months and years will see rounds of technical and political negotiation about how it may be put into operation. This agenda, however, should not place climate adaptation funding into the framework of legal liability backed by the new science of weather attribution.

Hulme goes more deeply into the Loss and Damage difficulties in his 2014 paper Attributing Weather Extremes to ‘Climate Change’: a Review.  Excerpts in italics with my bolds.

In this third and final review I survey the nascent science of extreme weather event attribution. The article proceeds by examining the field in four stages: motivations for extreme weather attribution, methods of attribution, some example case studies and the politics of weather event Attribution.

Hulme concludes by discussing the political hunger for scientific proof in support of policy actions.

But Hulme et al. (2011) show why such ambitious claims are unlikely to be realised. Investment in climate adaptation, they claim, is most needed “… where vulnerability to meteorological hazard is high, not where meteorological hazards are most attributable to human influence” (p.765). Extreme weather attribution says nothing about how damages are attributable to meteorological hazard as opposed to exposure to risk; it says nothing about the complex political, social and economic structures which mediate physical hazards.

And separating weather into two categories — ‘human-caused’ weather and ‘tough-luck’ weather – raises practical and ethical concerns about any subsequent investment allocation guidelines which excluded the victims of ‘tough-luck weather’ from benefiting from adaptation funds.

Contrary to the claims of some weather attribution scientists, the loss and damage agenda of the UNFCCC, as it is currently emerging, makes no distinction between ‘human-caused’ and ‘tough-luck’ weather. “Loss and damage impacts fall along a continuum, ranging from ‘events’ associated with variability around current climatic norms (e.g., weather-related natural hazards) to [slow-onset] ‘processes’ associated with future anticipated changes in climatic norms” (Warner et al., 2012:21). Although definitions and protocols have not yet been formally ratified, it seems unlikely that there will be a role for the sort of forensic science being offered by extreme weather attribution science.

Synopsis of this paper is at X-Weathermen are Back!

 

 

 

 

 

 

via Science Matters

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November 7, 2022 at 09:54AM

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