https://orcid.org/0000-0002-2394-4384
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Abstract
International climate change law embodied in the United Nations Framework Convention on Climate Change and the Paris Agreement entails commitments to reduce the emission of greenhouse gases, mainly from the use of fossil fuels. The development of fossil fuel mineral resources, especially coal, is becoming less attractive. Although it can be argued that countries, especially developing countries, should have a right to develop their coal resources, there is no general exception to the international agreements to that effect. The agreements address emissions and do not directly prevent fossil fuel extraction at the present. Emission reduction measures are not the only factors causing uncertainty in international coal markets. No tenable argument can be made for exceptions to the climate change agreements on the basis of the right to development, sustainable development or permanent sovereignty over natural resources; and pressure to reduce the use of fossil fuels, at the corporate level or in international affairs, is legitimate and to be expected. A low-carbon future means changes for mining, and coal mining in particular does not have a legal claim to business as usual operation immune from international efforts to reduce harm to the climate.
Notes
1 Thijs van de Graaf and Benjamin K Sovacool, Global Energy Politics (Polity 2020); P Collier and AJ Venables, ‘Closing Coal: Economic and Moral Incentives’ (2014) 30 Oxford Review of Economic Policy 492.
2 M Jakob and others, ‘The Future of Coal in a Carbon Constrained Climate’ (2020) 10 Nature Climate Change 704 https://doi.org/10.1038/s41558-020-0866-1.
3 World Coal Association, ‘COP25 Media Statement’: https://www.worldcoal.org/world-coal-association-cop25-media-statement, accessed 9 January 2021; “Coal & the Sustainable Development Goals” https://www.worldcoal.org/sustainable-societies/coal-sustainable-development-goals, accessed 9 January 2021.
4 Benjamin Sporton (CEO, World Coal Association), ‘Developing Economies Need Power from Coal’ Financial Times (21 August 2015); Glen Kellow (CEO, Peabody Energy), ‘The Surprisingly Sustainable Case for Coal’ (14 March 2019) www.peabodyenergy.com.
5 Paul Baruya, The Economic and Strategic Value of Coal (International Energy Agency Clean Coal Centre 2019).
6 Benjamin Sporton (CEO, World Coal Association), ‘Developing Economies Need Power from Coal’ Financial Times (21 August 2015).
7 Climate Home News, 2 June 2014, ‘African Development Bank Refuses to Quit Coal Funding’.
8 United Nations University, Institute for Natural Resources in Africa, ‘Africa’s Development in the Age of Stranded Assets’ (Discussion Paper, 2019) 37.
9 James Cust, David Manley and Giorgia Cecchinato, ‘Unburnable Wealth of Nations’ Finance & Development (March 2017), based on David Manley, James Cust and Giorgia Cecchinato, ‘Stranded Nations? The Climate Policy Implications for Fossil Fuel-Rich Developing Countries’ Policy Paper 34 (Oxford Centre for the Analysis of Resource Rich Economies, rev 2017).
10 United Nations University (n 8) 37.
11 Minerals Council of Australia, ‘Labor’s Support for Australian Mining Welcomed by MCA’ Media https://minerals.org.au/news/labors-support-australian-mining-welcomed-mca accessed 9 January 2021.
12 Department of Foreign Affairs and Trade (Australia), Composition of Trade Australia 2018–19, 5: in 2018–2019, iron ore and concentrates, $77.2 billion, 20.7% share; coal, $69.6 billion, 18.7% share; natural gas, $49.7 billion, 13.3% share. The resources share of goods exports has increased from a share around 50% in 2000 to one of 70% in 2018. See Minerals Council of Australia, The Next Frontier: Australian Mining Policy Priorities (2019) 30.
13 United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107; Kyoto Protocol (adopted 11 Dec 1997, entered into force 16 Feb 2005) 2303 UNTS 162; 37 ILM 22; Paris Agreement on Climate Change (12 Dec 2015, entered into force 4 Dec 2016) 55 ILM 740.
14 Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime’ (2000) 9 RECIEL 120.
15 Lavanya Rajamani, ‘Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics’ (2016) 65 ICLQ 493.
16 Ibid.
17 UNFCCC art 3(1); also art 4. The concept appeared simultaneously in the Rio Declaration.
18 Rajamani, ‘Principle of Common but Differentiated Responsibility’ (n 14).
19 Tuula Honkonen, ‘CBDR and Climate Change’ in Daniel Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar 2016) 142.
20 Francesco Sindico, ‘The UNFCCC: Legal Scholarship in Four Key Areas’ in Daniel Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar 2016) 217.
21 UNFCCC art 4(8). Similarly as to implementation see art 4(10).
22 Kyoto Protocol art 2(3). Also see art 3(14) and on mitigation programmes arts 10 and 11.
23 Lavanya Rajamani, ‘The United Nations Framework Convention on Climate Change: A Framework Approach to Climate Change’ in Daniel Farber and Marjan Peeters (eds), Climate Change Law (Edward Elgar 2016) 205 at 208.
24 Jon Barnett and Suraje Dessai, ‘Articles 4.8 and 4.9 of the UNFCCC: Adverse Effects and the Impacts of Response Measures’ (2002) 2 Climate Policy 231.
25 Chris Wold, Don Gourlie and Amelia Schlusser, ‘Climate Change, International Trade, and Response Measures: Options for Mitigating Climate Change without Harming Developing Country Economies’ (2014) 46 Geo Wash Int’l L Rev 531. Note that the Cancun Agreements of 2010 included commitments by developed countries to avoid response measures that would have negative impacts on developing countries, but in the subsequent process the issues raised by parties increasingly concentrated on trade issues.
26 World Coal Association, ‘Climate Change Position Statement’ (2020), www.worldcoal.org/reducing-co2-emissions/world-coal-association-climate-change-position accessed 25 May 2020; World Coal Association, ‘COP25 Media Statement’ (n 3).
27 OPEC Bulletin Commentary, January–February 2016.
28 Statement by Mohammad Sanusi Barkindo, OPEC Secretary General, at the UN Climate Change Conference (COP 23/CMP 13/CMA 1-2), 16 November 2017, Bonn; Statement to the UN Climate Change Conference (COP24) by Mohammad Sanusi Barkindo, OPEC Secretary General, at the UN Climate Change Conference (COP24/CMP14/CMA1.3), 12 December 2018, Katowice; OPEC Bulletin, Special Edition 4/19 (2019).
29 For the sake of completeness, art 8 of the Paris Agreement on loss and damage may be noted; but it concerns loss and damage ‘associated with the adverse effects of climate change’.
30 C McGlade and P Ekins, ‘The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2°C’ (2015) 517 Nature 187; C McGlade and P Ekins, ‘Un-Burnable Oil: An Examination of Oil Resource Utilisation in a Decarbonised Energy System’ (2014) 64 Energy Policy 102. Their results did not change much even when they factored in widespread carbon capture and storage.
31 James Hansen, Storms of My Grandchildren (Bloomsbury 2009) 172.
32 Fergus Green and Richard Denniss, ‘Cutting with Both Arms of the Scissors: The Economic and Political Case for Restrictive Supply-Side Climate Policies’ (2018) 150 Climate Change 73; G Piggot and others (special issue editors), ‘Curbing Fossil Fuel Supply to Achieve Climate Goals’ (2020) 20 Climate Policy 881.
33 P Collier and AJ Venables, ‘Closing Coal: Economic and Moral Incentives’ (2014) 30 Oxford Review of Economic Policy 492.
34 International Energy Agency (IEA), World Energy Outlook 2019, 221.
35 International Energy Agency (IEA), Coal 2019: Analysis and Forecast to 2024, 14, 23.
36 In US electricity generation, renewables are now matching and eclipsing coal. See US Energy Information Administration, Short Term Energy Outlook September 2020.
37 IEA, Coal 2019 (n 35).
38 IEA, World Energy Outlook 2019 (n 34) 219.
39 International Energy Agency, Tracking Power (IEA 2019) www.iea.org/reports/tracking-power-2019.
40 Qian Zhu, Historic Efficiency Improvement of the Coal Power Fleet (IEA Clean Coal Centre Report CCC/300, 2020).
41 IEA, Coal 2019 (n 35) 132.
42 Ibid 135.
43 By tonnes, in 2018 world consumption of coal was 77 per cent thermal or steam coal, 10 per cent lignite and 13 per cent metallurgical coal. See IEA, Coal 2019 (n 35), 13.
44 IEA, World Energy Outlook 2019 (n 34), 240. Anglo American intends to sell its South African coal operations. See The Northern Miner, 25 May–7 June 2020, 5.
45 IEA, Coal 2019 (n 35), 134.
46 The settlement was implemented by the Waikato Raupatu Claims Settlement Act 1995.
47 United Nations Declaration on the Right to Development, UN Doc A/RES/41/128, adopted by the UN General Assembly 4 December 1986. The African (Banjul) Charter on Human and Peoples’ Rights (adopted 27 June 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986, drew on right-to-development ideas. See Karin Arts and Atabongawung Tamo, ‘The Right to Development in International Law: New Momentum Thirty Years Down the Line?’ (2016) 63 Neths Intnl L Rev 221.
48 Subrata Chowdhury, Erik Denters, and Paul de Waart (eds), The Right to Development in International Law (Martinus Nijhoff 1992).
49 Arts and Tamo (n 47).
50 For example, the Rio Declaration on Environment and Development, 1992. A/CONF.151/26 (vol I), in Principle 3 recognised the right to development as one of its 27 principles: ‘The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations’.
51 P Collier, The Bottom Billion (Oxford University Press 2007); van de Graaf and Sovacool (n 1) 88.
52 Alexander Gillespie, The Illusion of Progress: Unsustainable Development in International Law and Policy (Earthscan 2001).
53 ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UNGA Resolution A/RES/70/1, 25 Sept 2015.
54 Human Rights Council resolution 33/14 (A/HRC/RES/33/14), 29 Sept 2016, art 14: Arts and Tamo (n 47).
55 Statement by Saad Alfarargi, Special Rapporteur on the Right to Development, 42nd Session of the Human Rights Council, 9–27 September 2019 www.ohchr.org.
56 Greg Muttitt and Sivan Kartha, ‘Equity, Climate Justice and Fossil Fuel Extraction: Principles for a Managed Phase Out’ (2020) 20 Climate Policy doi:10.1080/14693062.2020.1763900.
57 The authors refer to Ecuador’s proposal in 2007 to leave the Yasuni–ITT oilfield untapped if it could obtain compensation. Such an initiative would be impossible on a global scale, and indefensible as payment not to cause damage to the climate.
58 Chris Armstrong, ‘Decarbonisation and World Poverty: A Just Transition for Fossil Fuel Exporting Countries?’ (2020) 68 Political Studies 671.
59 Kamal Hossain and Roy Chowdhury (eds), Permanent Sovereignty over Natural Resources in International Law: Principle and Practice (Pinter 1984); Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997).
60 Werner Scholtz, ‘Greening Permanent Sovereignty through the Common Concern in the Climate Change Regime: Awake Custodial Sovereignty?’ in OC Ruppel and others (eds), Climate Change: International Law and Governance (Nomos 2013) 201.
61 IEA, World Energy Outlook 2019 (n 34) 238; van de Graaf and Sovacool (n 1) 133.
62 Paris Agreement arts 4(2) and 4(3). Each party communicates a new nationally determined contribution every 5 years: art 4(9).
63 Australian Financial Review, ‘France Puts Climate at Heart of Any FTA with Europe’ (8 November 2019).
64 Forbes, ‘Macron’s Mercosur Veto – Are Amazon Fires Being Used As A Smokescreen for Protectionism?’ (23 Aug 2019).
65 European Commission, ‘The European Green Deal’ COM (2019) 640 final, 11 Dec 2019.
66 There is a considerable literature on the matter: see M Mehling and others, ‘Designing Border Carbon Adjustments for Enhanced Climate Action’ (2019) 113 Amer J Int Law 433.
67 D Bullock, ‘Combating Climate Recalcitrance: Carbon-Related Border Tax Adjustments in a New Era of Global Climate Governance’ (2018) 27 Washington Int L J 609.
68 Lindsay Delevingne and others (McKinsey & Co), ‘Climate Risk and Decarbonization: What Every Mining CEO Needs to Know’ January 2020. Among other voices calling for change is Fernando P Carvalho, ‘Mining Industy and Sustainable Development: Time for Change’ (2017) 6 Food & Energy Security 61.
69 Delevingne and others (n 68) estimate mining greenhouse gas emissions from using diesel, electricity and gas at 450 MT pa CO2e, while fugitive methane emissions are 4620 MT pa CO2e. The ‘scope 3’ emissions from the use of minerals in downstream industries are vastly larger, at 14,370 MT pa CO2e.
70 J Drexhage, D La Porta and K Hund, The Growing Role of Minerals and Metals for a Low Carbon Future (World Bank 2017) 64.
71 Delevingne and others (n 68) 5.
72 Drexhage and others (n 70) observe that wind, solar, hydrogen and electricity systems are more materials-intensive than their traditional counterparts. See also Morgan Bazilian, ‘The Mineral Foundation of the Energy Transition’ (2018) 5 Extractive Industries and Society 93; Benjamin K Sovacool and others, ‘Sustainable Minerals and Metals for a Low-Carbon Future’ (2020) 367 Science (issue 6473) 30.