With COP26 reaching its end in November, many felt the summit left much to be desired. With Greta Thunberg, among others, stating that COP 26 (United Nations Climate Change Conference 2021) was a “failure” and climate change researchers expressing dissatisfaction with governments’ commitments to reducing emissions, many of us were left wondering, why is it so hard to get climate right?

To answer, let’s look at the outcomes of the COP26; predominantly this can be found in the Glasgow Climate Pact which was the final agreement made between nation-states. In this document, several key points were considered. Within each, we’ll take a look at why national and international law make these agreements so difficult to honour.

Emission cuts

The first major point in the document covers NDC (nationally determined contributions) to emissions being reduced. Analysts stated during the conference that the current targets set by the 2015 Paris agreement would not be enough to lower climate temperature by 2030 and that swifter, more ambitious cuts were necessary. In response, the new goal is to keep global temperature below 1.5C and to further this aim, the question of NCDs must be visited more regularly. Coal, in particular, was discussed as it is the main contributor to greenhouse gas emissions. To reach the above target, the pact stipulated that 40% of the world’s coal-powered plants must be closed by 2030 and no more new facilities are to be built. The next COP26 will address these NCDs again in 2023 and the UK is to draw up a roadmap for faster implementation.

The reason that many criticise this aspect of the pact, in particular, relates to why governments failed to reach targets in the first place. For the most part, the biggest difficulty governments face is balancing the protection of the environment against economic activity. The state is highly dependent on the market to make this determination. History has shown us that the state’s dependence on the private accumulation of capital leaves it open to market caprices. And as we know, the market has continually failed to price environmental costs accurately. We can see evidence of this in the way resources are overwhelmingly spent beyond the capability of the earth. The centralised and hierarchical structure of the state is also not a reflection of the actual democracy of resources that we all share. If we call on the public to contribute democratically in participation with the earth, that requires decentralisation of state.

However, in terms of environmental law, such a position is not necessarily beneficial to the environment. Due to the power the state possesses and for the most part, the democratic process in which they are formed, the state has the greatest capacity and legitimacy to regulate consumers, investors and the market in general. Furthermore, by working with other state members, they have the ability to make sweeping changes to environmental legislation. They also have the benefit of international and competitive strategies to deal with climate change. But perhaps, most importantly, the state fulfils a role that cannot be carried out by one individual, which is to create cohesive powers that protect this planet. The problem, however, is that the role of the state is highly contested and this makes it exceedingly difficult to determine the extent to which they can apply the law to enact these protections.

Climate finance

This sets out funding for poor countries to receive financial aid from richer countries in order to deal with the climate crisis.

The tragedy of commons is an economic model which describes how shared resources diminish personal responsibility and cost. In essence, we have one world which we share. Every individual in this world to some degree sets out to maximise their personal gain. In fractional measures, one person’s acts aren’t necessarily damaging. The problem is there are a billion other people who think the same way. This again reflects the governments’ struggle to balance economic activity against climate protection. Where is the line between growth and devastation? This part of the agreement calls on rich countries to help those who share our natural resources and have been infringed upon by a collective abuse of the environment. But as we will discuss below, this doesn’t necessarily assert guilt on the part of the developed countries who are able to financially support others.

Loss and damage

This refers to areas, particularly in developing countries that have been devastated by climate change and are trying to find compensatory measures for those responsible. Though this was not enshrined by the pact and will be discussed further in the next conference.

It is interesting that this point was not taken further by the COP26 and it truly reflects the problem of establishing liability in environmental law. When countries are significantly impacted by climate change, who is responsible for this damage? On one hand, environmentally damaging behaviour has to be criminalised in order to deter offenders. Environmental damage has a widespread effect on public and economic health, whilst disproportionately affecting vulnerable social and economic groups. Yet in order to prove guilt for a crime, legal enforcers have to determine several things. For one, what was the extent of the defendant’s knowledge of the crime? That is, to what extent were they culpable and thus liable to pay? Environmental issues don’t usually occur in isolation. They happen over long periods of time and are enacted through social and cultural behaviours.

This makes it impossible to pinpoint the source of the problem because not all individuals act and think in the same way within the same country. Should an individual be taxed for the actions of another? In our current legal system, this would be akin to jailing a person’s family for their crimes. Of course, this is an oversimplification, but the precedent remains the same. Criminal liability requires mens rea — a guilty state of mind. It is difficult enough to determine the state of mind of one individual, never mind a whole country. Let’s say, however, that we found the government solely responsible for this crime. If the law was able to attribute guilt to any given country, they would be open to endless lawsuits, and by extension taxation, on the general public which would be effectively impossible to regulate.

So then, if not through criminal prosecution, how are we able to deter environmentally damaging behaviour? For a large part, governments are more in favour of balancing economic constraints through regulation and education over strict findings of liability. This falls on scientists to make determinations about what way we need to regulate society in order to protect the environment.

The role of ecology in regulation and policymaking is to create predictive models about the complexity of the environmental system we live in. Unfortunately, these models are not as infallible as many people assume. They are temporal — limited by time and by nature and a simplification of reality. Though they can help us make environmental decisions, often a facet of environmental protection is only assessed when it becomes a legal requirement. This means that the state plays a role in deciding what is and is not worth evaluating. They are very much part of the knowledge-making process for ecological science that is used at the level of policy.

Though the Glasgow pact is not a legally binding document, it sets the prerequisites for national and international changes to our environmental law. The problem is that laws are founded on divergent understandings of environmental problems as we see from the COP26. One country's values will affect how a law will be interpreted even at the global level.

Each state has to determine risk, impact, implementation and economic appraisal when making any environmental legislation. These matters are not an objective science, they lie somewhere in between the realms of fact and value. Rather than strictly scientific evidence at the foundation of policy and law, we find political and social restraints. In these cases, how can we tackle the difference between value and fact?

In law, interpretation, validity and application of environmental liability are the subjects of debate. Even in binding contracts such as the Paris agreement, we see an inability to impose adequate restrictions for countries that fail to meet targets. The reason for this is that restrictions on markets, or government or even individuals don’t necessarily encompass the full dimensions of environmental harm, nor do they reach the core of the problem.

The real issue is that despite our state lines, global resources and by extension climate change are a shared commodity. Yet we are unable to consolidate our efforts in an effective way. We do not have adequate restrictions on the market. The role of the state is tenuous at best, governments are reluctant to assume liability and perhaps worst of all, as a result, our policy systems are not able to fully account for environmental problems. This, in short, is why it is so difficult to get climate right.

So what can we do?

For starters, we need better economic models and market regulation to tackle climate change even before we reach the level of public policy. This requires a global strategy not on climate change directly, but on how to better value, redistribute and protect our resources. One example of this could be nature-based economies which are centralised around the capacity of nature rather than consumer demand, though this is admittedly wishful thinking.

Perhaps, more realistically what we need is a reformation of the policy and law-making strategies. We touched on the way value can get mixed in with the science of policymaking. It’s important to note that this is a wider societal and academic problem which we will have to tackle first. It is contingent upon the infallibility of science which is naturally drawn to deconstructing the world to its base elements (such as atoms and cells) rather than a lateral and interdisciplinary approach that could put these models into a social, psychological and philosophical context. Understanding why people continue to demonstrate environmentally damaging behaviour in the face of taxation, criminalisation and to their own physical detriment is something the state should be investigating more thoroughly. Though none of these considerations can escape market pressure, it may be a useful way of considering why we are struggling to get climate change right.

In turn, we as state members have to also consider the role of the state in these matters. Are we using our democratic power to get the most from our governing bodies?

If so, why does our environment continue to decline?