|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Can We Forsake Process for Progress?
Transnational Environmental Law and Climate Change
Jessica Kirton-Luxford
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago - Te Whare Wānanga o Ōtākou
October 2022
Acknowledgements
(including but not limited to)
To Professor Nicola Wheen – for both your expertise and ethic of care. Your genuine encouragement, humour, and extensive knowledgebase were essential ingredients of this dissertation.
To all my friends from Otago and beyond – thank you for making my university experience what it was.
To Isabella – for always being there. Your enduring friendship means the world – our regular Archie’s appointments have been the one constant during the last five years.
To Grace – for the yarning, listening, supporting, chauffeuring and your friendship. I’m so
thankful for the countless hours we’ve spent distracting each other atop the Richardson.
Europe awaits!
To Laurie – for being my law school companion from day-dot. Thank you for your company: you have kept me accountable and sane!
To Kelci – for your incisive proofreading and never failing to make me laugh.
To Madi – for putting up with my incessant law chat for five years.
To those in the tutor’s office – without whom, this dissertation would have been completed in much less time, with much less fun.
To Mum, Dad, Emily and Bridget – for your love and support throughout my education (and everything else).
TABLE OF CONTENTS
Introduction
... [T]he traditional response of international law, developing international legal standards in small incremental steps, each of which must be subsequently ratified by all countries, is no longer appropriate to deal with the highly complex environmental problems of the future.
Rt Hon Geoffrey Palmer “General Debate Statement of New Zealand Government” (United Nations General Assembly, UN Headquarters, New York, 2 October 1989) at 61.
The deadline for doomsday has been set. In the absence of dramatic climate action, the Earth is currently projected to reach 2.7°C of warming above pre-industrial levels.1 This degree of warming, if unchecked, will massively and catastrophically impact ecosystems, people and infrastructure.2 Yet, in the face of mounting scientific evidence, nihilism dominates climate change action discourse. Is it truly too late?
Global environmental problems are “wicked problems”,3 with climate change being the most wicked of all. Criticisms of international environmental agreements are ubiquitous. Increasing urgency in the need for progress calls for alternative approaches to law-making and governance, which can combat the institutional restrictions of the consent requirement,4 and move forward without unanimous or majoritarian agreement.5 Amongst the disappointing reality of climate action are several glimmers of hope. One such glimmer is transnational environmental law (TEL). Emerging discourse surrounding transnationalism heralds it as the potential solution for the collective action issues surrounding state-led climate action.6
Theoretically, TEL allows us to make much-needed progress in climate action. TEL allows the bypassing of recalcitrant states and politics by coordinating and uniting actors who want to autonomously pursue efficient progress. However, bypassing of process for the sake of progress is double-edged. Process is not meaningless bureaucracy, but ensures that transnational governance schemes are transparent, accountable and engage in proper consultation. Consequently, this dissertation asks the question: can we forsake process for
1 Climate Action Tracker “Temperatures” <https://climateactiontracker.org/global/temperatures/>.
2 Intergovernmental Panel on Climate Change Summary for Policymakers: Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC, Cambridge University Press, 2022) at 9.
3 See Richard Lazarus “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future” (2008) 94 Cornell L Rev 1153.
4 Bruno Simma “From Bilateralism to Community Interest” (1994) 250 RCADI 221 at 325.
5 Jutta Brunnée “COPing with Consent: Law-Making Under Multilateral Environmental Agreements” (2002)
15(1) LJIL 1 at 5.
6 Olaf Dilling and Till Markus “The Transnationalism of Environmental Law” (2018) 30(2) JEL 179 at 179.
progress? Should progress be sought at any cost, or is there a point where forsaking processcompromises progress?
There has been limited normative legal study on TEL in practice: “theory without practice is empty while practice without theory is blind”.7 This dissertation assesses the relationship between progress and process through comprehensive case studies of two pre-eminent examples of TEL: the Science Based Targets initiative (SBTi) and C40. Ultimately, this dissertation concludes that we cannot forsake all process to pursue progress. There is a trade- off between achieving measurable progress and forsaking process: insufficient process makes the performance of TEL illegible.
This dissertation is structured as follows:
Chapter I will establish the pressing need for progress in efforts to limit dangerous anthropogenic climate change. After establishing what is needed to mitigate climate change, this chapter will assess the efforts of states to reduce greenhouse gas (GHG) emissions under the United Nations Framework Convention on Climate Change (UNFCCC).
Chapter II will premise that TEL is filling the governance gap created by multilateralism’s inaction and inefficacy. In recent decades, novel transnational governance networks have emerged, establishing TEL stimulating climate action. Chapter II will then set out the conceptualisation of TEL that will be adopted by this dissertation and introduce the two examples of TEL that will be examined in Chapters IV and V.
Chapter III will discuss the theoretical bases for TEL’s promise of progress and the resulting process costs. Many herald TEL as a saviour from multilateral gridlock: a progress-maker.8 However, the promise of TEL is double-edged: its virtues can also be vices. This chapter will then distil the theory on TEL to one core tenet: TEL forsakes process for progress. This dissertation will then ask whether we can forsake process for progress.
Chapter III also sets out the analytic framework that will be used to analyse the relationship between progress and process for the SBTi and C40. In the context of this dissertation: process
7 Harold Anthony Lloyd "Theory without practice is empty; practice without theory is blind: the inherent inseparability of doctrine and skills" in Linda H Edwards (ed) The Doctrine Skills Divide: Legal Education’s Self-inflicted Would (Carolina Academic Press, Durham, 2017) 7 at 7.
8 Gregory Shaffer and Daniel Bodansky “Transnationalism, Unilateralism and International Law” (2012) 1(1)
TEL 31 at 39.
inquiries focus on participation, transparency and accountability, while progress considers membership compliance, measurable behavioural changes and ecological ambition.In Chapter IV, I will analyse the relationship between progress and process for the SBTi, which is a pre-eminent example of TEL formulated by private actors. Similarly, in Chapter V, I will analyse C40, which is a pre-eminent example of TEL formulated by subnational public actors. Through this analysis of the SBTi and C40, I find that process failings obscure measurable progress. I conclude that there is a trade-off between forsaking process and achieving measurable progress. Measurable progress is compromised by poor process, which implicates the efficacy TEL.
Chapter I: The Need for Progress
This dissertation will evaluate TEL against the backdrop of multilateralism’s inadequacies. This chapter assesses the failings of multilateralism through an analysis of the UNFCCC’s failure to drive necessary GHG emission reductions. Multilateralism, or state-made international law, is insufficient: there is a need for alternative or additional sources of climate change progress.
A The Wicked Problem
Climate change is a tragedy of the commons calling for a dramatic, collective response. Anthropogenic climate change has been identified as the largest source of global temperature increases since the mid-20th century.9 Human-driven climate change can be largely attributed to increased GHG emissions and the GHG effect. This is where an increase in GHGs in Earth’s atmosphere slows heat loss to space, warming the planet.10 Projected consequences of future warming include humanitarian and ecological crises fuelled by an increase in extreme weather events, global temperatures, precipitation, sea level rise, ocean acidification, and a decrease in habitable and arable land.11
Earth is already warming, but experts are calling for temperature rise to be limited to 1.5°C to reduce risks of irreversible adverse consequences.12 However, current global policies are projected to result in 2.7°C of warming above pre-industrial levels.13 Historically, it has been very difficult to reach international agreement on any collective response to climate change, let alone a response of the magnitude needed. Climate change has been politicised, and action has been slow and stilted. If future generations are to have any hope, effective progress must be made in the fight against climate change. The multilateral climate regime has struggled to make any progress, let alone effective progress. Even after the UNFCCC’s entry into force 28 years ago, the world is still on track for climate catastrophe.
9 Intergovernmental Panel on Climate Change “Summary for Policymakers: Global Warming of 1.5°C (IPCC, Incheon, 2018) at 53.
10 NASA “The Causes of Climate Change” Global Climate Change <https://climate.nasa.gov/causes/>.
11 IPCC Summary for Policymakers (2022), above n 2, at 8–19.
12 IPCC Summary for Policymakers (2018), above n 9, at 53.
13 Climate Action Tracker, above n 1.
B Multilateralism
Much of modern international environmental law is constituted of multilateral environmental agreements.14 They have been deemed the “workhorses” of collective interest.15 Multilateralism can be nominally defined as the deliberate co-ordination of national policy in three or more states.16 Talk of multilateralism dominates the international space: “despite all of our disappointments with its functioning, we still worship at the shrine of global institutions like the UN”.17 Multilateralism has a number of potential legal forms including legally binding treaties, conventions, protocols and non-binding political agreements.18 States must consent in order to be legally bound any treaty.19 This consent can be expressed through ratification or “any other means if so agreed”.20 In practice, parties consent to the modification of treaty obligations through means ranging from formal ratification to majority decision-making at a Conference of the Parties (COP).21
C The UNFCCC
The principal multilateral instrument addressing climate change is the UNFCCC. The UNFCCC entered into force in 1994,22 after three years of negotiations.23 The Convention has been almost globally ratified, and ultimately seeks the “stabilization of greenhouse gas concentration[s] in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”.24 Fundamental principles of the UNFCCC are that responsibilities are common but differentiated, and that developed country Parties should take the lead in combatting climate change.25
The UNFCCC was intended to be a starting point for climate action: an agreement to agree. This model had been successfully adopted by the Vienna Convention for the Protection of
14 Brunnée, above n 5, at 2.
15 Simma, above n 4, at 322.
16 John Gerald Ruggie "Multilateralism: the anatomy of an institution" (1992) 46(3) IO 561 at 565.
17 Jose E Alvarez "Multilateralism and its Discontents" (2000) 11(2) EJIL 393 at 394.
18 Lavanya Rajamani “The Durban Platform for Enhanced Action and the Future of the Climate Regime” (2012)
61(2) ICLQ 501 at 503.
19 Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May 1969, entered into
force 27 January 1980), art 11.
21 Brunnée, above n 5, at 21.
22 United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for signature 4 June
1992, entered into force 21 March 1994) [UNFCCC].
23 Charlotte Streck “Innovativeness and Paralysis in International Climate Policy” (2012) 1(1) TEL 137 at 139.
the Ozone Layer (the Ozone Convention).26 The UNFCCC anticipates that Parties will adopt legally binding protocols under the UNFCCC,27 which are essentially additional agreements which must be signed and ratified.28 Alternatively, Parties may amend the UNFCCC at COP meetings through a three-quarter majority,29 however, only consenting states who ratify will be bound by any amendments.30 States “cannot be compelled” to accept new terms that they have not consented to.31Over the past 28 years, there have been a significant number of developments under the UNFCCC, with respect to reaching and implementing international environmental agreements. However, negotiations have been plagued by disagreements, and have largely resulted in ineffective decisions. The history of pertinent decisions under the UNFCCC will now be detailed, with specific focus on inefficient negotiations and themes of conflict.
1 The Kyoto Protocol
The Kyoto Protocol, agreed to during COP-3 of 1997, was the first major development under the UNFCCC. The Protocol was heavily influenced by the Montreal Protocol to the Ozone Convention, and largely adopts the same approach.32 Reflective of a “contractual” approach to multilateralism, 33 the Protocol imposed “top-down” binding emissions reduction targets and timetables on industrialised countries.34 The Protocol obligations clearly distinguish between two static categories of Parties contained in the UNFCCC: developed country parties in Annex 1 and developing country parties in Annex 2.35 The Protocol required Annex 1 or developed country Parties to jointly or individually make “demonstrable process” in reducing anthropogenic GHG emissions by 2005.36 This categorisation has been a massive source of contention in all negotiations under the UNFCCC.
26 Vienna Convention for the Protection of the Ozone Layer 1513 UNTC 293 (open for signature 22 September
1985, entered into force 22 September 1988).
28 Patrick Széll “Decision Making under Multilateral Environmental Agreements” (1996) 26(5) Envtl Poly & L 210 at 211.
31 Brunnée, above n 5, at 7.
32 Kyoto Protocol 2303 UNTS 162 (opened for signature 11 December 1997, entered into force 16 February
2005), Preamble.
33 Daniel Bodansky “The Durban Platform: Issues and Options for a 2015 Agreement” (2012) Harvard Project on Climate Agreements Viewpoint (Centre for Climate and Energy Solutions) at 1.
34 Cara A Horowitz “Introductory Note to Paris Agreement” (2016) 55 ILM 740 at 740.
The Protocol was described as “the final decision the world was waiting for”,37 and a definite “first step” in the collective effort to reduce climate change.38 However, an arduous ratification process inherited from the Ozone Convention prevented the Protocol from entering into force until 2005.39 To come into force, the Protocol needed to be ratified by 55 countries, including those Parties responsible for at least 55 per cent of developed-country emissions.40
(a) Inadequate design
The Protocol was celebrated by some as a “first step”: the finalisation of a legally binding agreement represented progress.41 However, this celebration was not universal. The Protocol was designed to be like the Montreal Protocol, which had been extremely successful in reducing the use of ozone-depleting substances. However, this model applied poorly to climate change mitigation, which is inherently more political and requires larger infrastructural changes. Even at the time of adoption, the Protocol was deemed “inadequate” and the result of compromises.42 The design of the Protocol is often substantially blamed for its failures: its provision for short commitment periods only operated to incentivise short-sighted and meaningless domestic mitigation measures.43 Even with full participation and compliance, the Protocol was designed to be a first step, and was insufficient to prevent anthropogenic climate change.44
The Protocol imposed no mitigation requirements on Annex 2 Parties to reflect both the “gaping disparity” in the capacity of states to mitigate against and adapt to climate change, and the difference in responsibility for historic GHG emissions.45 The IPCC and a number of major states expressed concerns that countries undergoing economic transformation, like China and India, were increasingly contributing to GHG emissions, and ought to be subject to
37 Statement of Minister for Foreign Affairs of Japan in UNFCCC Report of the Conference of the Parties on its third session, held at Kyoto, from 1 to 11 December 1997, Part One: Proceedings (Document FCCC/CP/1997/7, 6 March 1998) [COP-3] at [9].
38 Statement of President of the Conference, at [8].
39 Vienna Convention for the Protection of the Ozone Layer, art 9(5).
41 Amanda M Rosen “The Wrong Solution at the Right Time: The Failure of the Kyoto Protocol on Climate change” (2015) 43(1) Politics & Policy 30 at 31.
42 Representative of Trinidad and Tobago speaking on behalf of the Alliance of Small Island States in COP-3, above n 37, at [84].
43 Rosen, above n 41, at 30.
45 Annalisa Savaresi “The Paris Agreement: a new beginning?” (2016) 34(1) JERL 16 at 16.
commitments as well.46 As time passed, it became increasingly obvious global emissions were not being meaningfully constrained by the Protocol.47It must be noted that complete condemnation of the Protocol is not universal.48 The Protocol did catalyse some important developments, such as the reduction in emissions from deforestation, and its monitoring and compliance mechanisms.49
(b) Post-ante negotiation
When first agreed to at COP-3, the Protocol only adopted targets for Annex 1 Parties and provided for market-based mechanisms with little details on implementation.50 There were many significant disagreements in how the Kyoto follow-up process should be organised.51
It had been expected that the issues left unresolved at COP-3 would be resolved at COP-4. The objective of the session was to agree on conditions necessary for the Protocol to enter into force: rules of procedure, an action plan setting ambitious and firm deadlines, and the mechanisms which would promote flexibility, credibility and development.52 Parties were unable to reconcile their differences and agree on rules of procedure or any mechanisms.53 The Secretary-General of the UN implored that Parties must make haste so the Kyoto Protocol could enter into force within two or three years: emphasising the need for convincing time- frames and deadlines.54
In an attempt to maintain the political momentum from COP-3, the Conference did adopt the Buenos Aires Plan of Action which established deadlines for finalising the remaining details of the Protocol.55 However, “the outcome of the Buenos Aires meetings cannot be called a
46 Saveresi (2016), above n 45, at 17.
47 Horowitz, above n 34, at 740.
48 See Sebastion Oberthür “Clustering of Multilateral Environmental Agreements: Potentials and Limitations” (2002) 2(4) International Legal Agreements 317 at 318; Robin Churchill and Geir Ulfstein “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law” (2000) 94(4) AJIL 623; and Peter H Sand and Jeffrey McGee “Lessons learnt from two decades of international environmental agreements: law” (2022) 22 Int Environ Agreements 263 at 266–7.
49 Streck (2012), above n 23, at 145.
51 Henning Rentz “Outcomes of the Fourth Conference of the Parties to the Convention on Climate Buenos
Aires, 2 -13 November 1998” (1999) 10(2) Energy & Environment 157 at 157.
52 UNFCCC Report of the Conference of the Parties on its fourth session, held at Buenos Aires from 2 to 14 November 1988. Part One: Proceedings (Document FCCC/CP/1998/16, 20 January 1999) [COP-4] at [6].
success” due to the disparate views held by Parties.56 At COP-5, Parties made no progress on reaching consensus on the issues within the Buenos Aires Plan of Action.57At COP-6, Parties adopted the Bonn Agreements on the Implementation of the Buenos Aires Action Plan, after they reached agreement on the relevant issues.58 However, “the climate change regime appeared to be teetering on the brink of disaster” following COP-6, due to a breakdown of discussions between states.59 Critics of the Kyoto Protocol came with their claws out, united in their objections. Aside from those disputing the scientific basis of climate change, critics were largely economic powerhouses who resented that the Protocol only bound industrialised countries, and idealists who believed the Protocol was too weak to achieve needed progress.60
Jutta Brunnée suggests that the results of COP-6 and COP-7 showed the “climate change regime is more resilient than it has been given credit for”.61 However, rifts between Parties were never truly resolved, encumbering meaningful progress. At COP-7, although the Marrakech Accords finalized many operational details, major parties like the United States of America (USA) still declined to participate in negotiations.62
At COP-8, the President of the Conference emphasised that entry into force of the Kyoto Protocol was “within reach”, and that Parties ought to “finalize without delay”.63 Despite this urging, an insufficient number of states had ratified the Protocol, preventing it from coming into force. The Protocol was essentially held hostage by the refusal of the Russian Federation, the USA and Australia to ratify.64 Additionally, no consensus was reached on key issues related to the implementation of the Kyoto Protocol, so those issues were placed on the provisional agenda to be resolved at COP-9.65
56 Rentz, above n 51, at 157.
57 See UNFCCC Report of the Conference of the Parties on its fifth session, held at Bonn from 25 October to 5 November 1999. Part One: Proceedings (Document FCCC/CP/1999/6, 21 December 1999).
58 See UNFCCC Report of the Conference of the Parties on its sixth session, held at The Hague from 13 to 25 November 2000. Part One: Proceedings (Document FCCC/CP/2000/5, 4 April 2001).
59 Brunnée, above n 5, at 4.
60 Michael Grubb and Farhana Yamin “Climatic Collapse at The Hague: What Happened, Why, and Where Do We Go from Here?” (2001) 77 Intl Aff 261 at 262.
61 Brunnée, above n 5, at 4.
62 See UNFCCC Report on the Conference of the Parties on its seventh session, held at Marrakech from 29 October to 10 November 2001. Part One: Proceedings (Document FCCC/CP/2001/13, 21 January 2002).
63 UNFCCC Report of the Conference of the Parties in its eighth session, held at New Delhi from 23 October to 1 November 2002. Part One: Proceedings (Document FCCC/CP/2002/7, 28 March 2003) [COP-8] at [7].
Due to these delays, the Protocol did not come into force until February 2005 following ratification by Russia. This was celebrated at COP-11. However, public confidence in the climate change regime was quickly fading. Delegates attending COP-12 were lampooned for perceived “climate touris[m]”: travelling to see wildlife and “poor, dying African children” to discuss the economic costs and loss of competition caused by climate action.66
(c) Fading follow through
The political will to meaningfully implement the Protocol faltered.67 States who had ratified the Protocol did not comply with their targets despite their lack of ambition.68 The USA never became a party to the Protocol, and Canada withdrew before the end of the first commitment period.69 Negotiations on the Protocol’s second commitment period began in 2005, and “continued, seemingly without end”.70 States such as Japan, New Zealand and Russia failed to negotiate new targets after the first commitment period lapsed.71 After this lapse, the European Union, Norway and Switzerland were some of the only Annex 1 Parties who still had obligations under the Protocol.72
2 The Bali Action Plan
The Bali Action Plan was adopted at COP-13, establishing the Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) under the UNFCCC.73 The AWG-LCA was intended to engage in negotiations on a process to establish a shared vision for long-term cooperative action.74 At this point, in 2007, the search for more effective climate change agreements began to be hindered by serious disagreements over the legal form of any commitments.75
No substantive agreements were reached in subsequent conferences. Instead, there were more agreements to agree. At COP-14, States made a “clear” and “resounding” commitment to
66 Richard Black “Climate talks a tricky business” (18 November 2006) BBC
<http://news.bbc.co.uk/2/hi/science/nature/6161998.stm> .
67 See UNFCCC Doha Amendment Decision 1/CMP 8 (Document FCCC/KP/CMP/13/Add 1, 8 December
2021).
68 Rosen, above n 41, at 31.
69 Kyoto Protocol Canada: Withdrawal (Depositary notification CN 796 2011 TREATIES-1, 16 December
2011).
70 Rajamani (2012), above n 18, at 503.
73 UNFCCC Bali Action Plan Decision 1/CP 13 (Document FCCC/CP/2007/6/Add 1, 14 March 2008) at [2].
75 Rajamani (2012), above n 41, at 503.
conduct negotiations for an ambitious and effective response to climate change,76 which was supposed to be agreed on at COP-15 in Copenhagen in 2009.77 The AWG-LCA process was also supposed to conclude at Copenhagen,78 however, their mandate was renewed twice in successive conferences when no consensus was reached.79
3 Copenhagen Accord
There were high hopes that the Copenhagen Conference would conclude with a new long-term climate agreement and agreement on a second commitment period for the Kyoto Protocol. However, negotiations were “difficult”,80 and a grievous diplomatic misjudgment resulted in an informal accord lacking the support of the Conference plenary.81
Prior to the Conference, it had proven impossible to adopt a negotiating text. Delegates were working with 200 pages based upon an unofficial collection of Party submissions.82 As the second week of COP-15 ended, deliberations remained deadlocked. In response the Danish Prime Minister, Lars Løkke Rasmussen, organised negotiations for a political deal parallel to the official negotiations at COP-15.83 The product of these negotiations was the Copenhagen Accord. The Conference had not authorised the formation of any separate negotiation group, and was also not kept informed on the progress of the group’s negotiations.84
The “non-inclusive, untransparent, last minute political agreement” is heralded as the lowest point of the climate change regime.85 The Accord is brief and vague: although calling for “deep cuts” in emissions, it never establishes how these “deep cuts” ought to be made or how they can be quantified.86 Due to the circumstances of its development, the Accord had a very
76 Wendy Zeldin “United Nations: Climate Change Conference Concluded” (24 December 2008) Library of Congress <https://www.loc.gov/item/global-legal-monitor/2008-12-24/united-nations-climate-change- conference-concluded/>.
77 See UNFCCC Report of the Conference of the Parties in its fourteenth session, held at Poznan from 1 to 12 December 2008. Part One: Proceedings (Document FCCC/CP/2008/7, 19 March 2009).
78 Letter from A V Frolov (National Climate Change Coordinator for the Russian Federation) to Ms C Figueres (Executive Secretary of the UNFCCC) regarding COP-16 of the UNFCCC (8 December 2010); and Letter from Mutsuo Sakaba (Ambassador for COP-16 of the UNFCCC for Japan) to Ms C Figueres (Executive Secretary of the UNFCCC) regarding COP-16 of the UNFCCC (10 December 2010).
79 UNFCCC Outcome of the work of the Ad Hoc Working Group on Long-term Cooperate Action under the Convention Decision 1/CP 15 (Document FCCC/CP/2009/11/Add 1, 30 March 2010) at [2].
80 Savaresi (2016), above n 45, at 17.
81 Streck (2012), above n 23, at 140.
82 Saveresi (2016), above n 45, at 17.
83 John Vidal “Copenhagen Climate Failure Blamed on “Danish Text”’ (31 May 2010) The Guardian (Online Edition) <http://www.guardian.co.uk/environment/2010/may/31/climate-changecopenhagen-> .
84 Lavanya Rajamani “The Making and Unmaking of the Copenhagen Accord” (2010) 59 ICLQ 824 at 825.
85 Saveresi (2016), above n 45, at 17.
86 UNFCCC Copenhagen Accord Decision 2/CP 15 (Document FCCC/CP/2009/11/Add 1, 30 March 2009) at
[2].
“uncertain status”; although drafted with the presumption it would be adopted as a COP decision, it was not. States such as India and China implored that the Accord “[was] not a new track of negotiations or a template for outcomes”,87 as it “is neither viable nor acceptable to start a new negotiation process outside the framework of the Convention and the Protocol”.88Low expectations and disillusionment with the climate change regime put pressure on Parties at the negotiating table at COP-16 in Cancun.89 They adopted the Cancun Agreements, which defined elements of and steps towards a future climate agreement but put off the challenge of actually coming to an agreement on a new framework.90
4 Durban to Paris
At COP-17 in Durban, the Durban Platform established an intention to negotiate an agreement “with legal force”.91 This “purposefully obscurant formulation” was an ambiguous compromise: “legal force” had no agreed meaning.92 The subsequent negotiations were plagued with issues around the legal form of the agreement.93 Parties were broadly in two camps: those who thought the Durban Platform required negotiations for a new binding legal agreement which would replace the Kyoto Protocol, against those insisting that a COP decision would be sufficient.94 Parties established the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) which was charged with concluding a “a protocol, another legal instrument or a legal outcome” applicable to “all Parties”, which would be implemented from 2020.95
There was a “flurry” of publications and meetings on ADP negotiations, but progress was
slow.96 In negotiations, Parties emphasised durability, flexibility and effectivity, while
87 Letter from Rajani Ranjan Rashmi (Joint Secretary of the Ministry of Environment & Forests for the Government of India) to Mr Yvo de Boer (Executive Secretary of the UNFCCC) regarding the Copenhagen Accord, 8 March 2010).
88 Letter from Su Wei (Chief Negotiator and Director-General of the Department of Climate Change for China) to Mr Yvo de Boer (Executive Secretary of the UNFCCC) regarding the Copenhagen Accord, 1 February 2010). 89 Streck (2012), above n 23, at 104.
91 UNFCCC Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011. Part Two: Action taken by the Conference of the Parties at its seventeenth session (Document FCCC/CP/2011/9/Add 1, 15 March 2012) at [4].
92 Daniel Bodansky “The Legal Character of the Paris Agreement” (2016) RECIEL 25(2) 142 at 143.
93 See UNFCCC Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action
Decision 1/CP 17 (Document FCCC/CP/2011/9/Add 1, 15 March 2012).
94 Bodansky (2016), above n 92, at 143.
95 Durban Platform, at [2] and [4].
96 Streck (2012), above n 23, at 137.
incentivising the “broadest possible participation”.97 With these goals in mind, and previous decisions of the COP, Parties were examining the scope and character of Intended Nationally Determined Contributions (INDCs).98Typically, in ADP meetings, there were continued conflicts on how any new agreement would differentiate between Parties. Parties were struggling to choose between a top-down “contractual” model (like the Kyoto Protocol) and a bottom-up “facilitative” approach which favoured unilaterally defined action.99 Parties calling for a new approach to differentiation were opposed by those who felt that moving beyond the bifurcated Annex 1 and 2 approach represented rewriting the UNFCCC.100 A number of developing country Parties were strongly opposed to moving beyond the existing framework.101 This conflict fed debates on INDCs, which were attempting to link adaptation, mitigation and implementation.
It was hoped that a decision on INDCs would be adopted at COP-20 in Lima.102 However, at the closing plenary, several groups claimed that the new texts’ apparent focus on mitigation was illegitimate.103 Ultimately, Parties felt that INDCs best reflected equity: universality was not uniformity; and leadership in emissions reduction would still stem from those countries with the “greatest responsibility and highest capacity”.104 In Lima, Parties did begin to formulate and submit INDCs, which was a step forward.105
Although Parties agreed that they would assess and set INDC’s domestically, there was still disagreement on what legal force these commitments would have. There was contention over whether all elements would be legally binding at the international level, or whether the legal nature of the elements would depend on substance.106 The meetings of the ADP became “laborious and increasingly frequent” in the lead up to Paris.107 The ADP met 15 times in order
97 Ad Hoc Working Group on the Durban Platform for Enhanced Action Reflections on progress made at the fourth part of the second session. Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Note by the Co-Chairs (Document ADP 2014 3 Informal Note, 17 April 2014) at 5.
99 Bodansky (2012), above n 33, at 1.
100 Annalisa Savaresi “Ad Hoc WG on the Durban Platform” (2014) 44(6) EP & L 492 at 492.
101 Savaresi (2016), above n 45, at 18.
102 See Ad Hoc Working Group on the Durban Platform for Enhanced Action Intended nationally determined contributions of Parties in the context of the 2015 agreement (Document ADP 2014 7 Draft Text, 7 July 2014). 103 Savaresi (2014), above n 100, at 293.
104 Ad Hoc Working Group on the Durban Platform for Enhanced Action Parties' views and proposals on the elements for a draft negotiating text (Document ADP 2014 6 NonPaper, 7 July 2014) at 1.
105 Ralph Bodie, Lena Donat and Matthais Duwe “The Paris Agreement: Analysis, Assessment and Outlook” (2016) 2016(1) CCLR 5 at 5.
106 ADP Reflections on progress made at the fourth part of the second session, above n 97, at 1; and ADP
Parties' views and proposals on the elements for a draft negotiating text, above n 104, at 2.
107 Savaresi, (2016), above n 45, at 16.
to complete a sensible draft text: a chaotic 90 page negotiating text was whittled down into a final 31 page draft which contained little consensus on obligations and their legal nature.108 The negotiations were demonstrative of the futility of technical negotiations in the absence of political consensus on the core elements and features of any new legal agreement.109 The negotiating delegates in Paris were tasked with adopting an agreement which resolved this conflict.110
5 The Paris Agreement
The Paris Agreement was adopted by the COP in December 2015.111 The Agreement calls for Parties to make efforts to keep global temperature increase well below 2°C, limiting it to 1.5°C above pre-industrial levels.112 At 11 pages, the Agreement is “lean”,113 but covers mitigation, adaptation and implementation (technology transfer, financing and capacity building).114
The chosen architecture for commitments was based around nationally determined contributions (NDCs) submitted by the Parties. Parties must submit an NDC every 5 years, with increasing ambition.115 In Paris negotiations, the legal character of NDCs was a contentious issue, which was addressed through the precise language used in each provision.116 Parties are only required to “implement” NDCs, not “achieve” them.117 Importantly, the Paris Agreement does not obligate Parties to implement domestic measures to meet their NDCs, merely to “pursue” them.118 Many provisions of the Agreement are facilitative rather than prescriptive.119
The “bottom-up” facilitative approach leaves an extremely wide discretionary margin for
parties to determine their own commitment to actually combatting climate change.120 Adopted
108 See Ad Hoc Working Group on the Durban Platform for Enhanced Action Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (Document ADP 2015 11 Informal Note, 6 November 2015).
109 Savaresi, (2016), above n 45, at 16.
110 Karl Mathiesen and Fiona Harvey “Climate Coalition Breaks Cover in Paris to Push for Binding and Ambitious Deal” (8 December 2015) The Guardian <http://www.theguardian.com/environment/2015/ dec/08/coalition-paris-push-for-binding-ambitious-climate-change-deal, accessed 15 December 2015> .
111 Paris Agreement 3156 UNTS (open for signature 22 April 2016, entered into force 4 November 2016).
113 Savaresi (2016), above n 45, at 19.
114 The Paris Agreement, art 3.
115 Articles 4(1), 4(2) and 4(3).
116 Bodansky (2016), above n 92, at 146.
118 The Paris Agreement, art 4(2).
119 Bodansky (2016), above n 92, at 6.
NDCs were too unambitious required to meet the 2°C goal.121 At the time of adoption, it wasquestioned whether “wide participation comes at the price of stringency and efficacy”.122
D Concluding Analysis
Despite all efforts, the core climate regime has remained mostly static.123 Per Patricia Espinosa, the Executive Secretary of the United Nations Framework Convention on Climate Change: “[n]egotiations are never easy...this is the nature of consensus and multilateralism”.124 Neither the “facilitative” approach, nor the “contractual” approach to legal commitments under the UNFCCC has proven adequate.125 Daniel Bodansky argues that there are three dimensions to an international agreement: stringency, participation and compliance.126 Weakness along any of these dimensions compromises the efficacy of the agreement.127 It is this balancing act that has blighted negotiations under the UNFCCC.
The UNFCCC has a global membership and emphasises transparent negotiation,128 but this inclusiveness and a need for consensus have led to incredibly slow progress on substantive decisions and agreements tackling climate change. Most recently, at COP-26 in Glasgow, the Glasgow Climate Pact was adopted last minute to “speed up” the climate response,129 but made no real progress. This deal was driven by “compromise” and “balance”,130 deemed the “least worst” outcome by a top New Zealand negotiator.131
Chapter I has established that formal treaty negotiations are not enough. The efficacy of multilateralism in addressing climate change is crippled by the state consent requirement,132
121 UNFCCC Synthesis Report on the Aggregate Effect of the Intended Nationally Determined Contributions
(Document FCCC CP/2015/7, 30 October 2015).
122 Horowitz, above n 34, at 740.
123 Streck (2012), above n 23, at 142.
124 Laura Quiñones “COP26 closes with ‘compromise’ deal on climate, but it’s not enough, says UN chief” (13 November 2021) UN News <https://news.un.org/en/story/2021/11/1105792>.
125 Bodansky (2012), above n 33, at 1.
128 Jutta Brunnée and Stephen J Toope Legitimacy and Legality in International Law: An Interactional Account
(Cambridge University Press, Cambridge, 2010) at 184.
129 UNFCCC Report of the Conference of the Parties on its twenty-sixth session, held in Glasgow from 31 October to 13 November 2021. Part one: Proceedings (Document FCCC/CP/2021/12).
130 Richard Mahapatra “CoP26: With less than 100 months left for a climate redline, here is a deal that feels laggard” (14 November 2021) DownToEarth <https://www.downtoearth.org.in/news/climate-change/cop26- with-less-than-100-months-left-for-a-climate-redline-here-is-a-deal-that-feels-laggard-80195>.
131 Quiñones, above n 124.
132 Shaffer and Bodansky, above n 8, at 38; Kenneth Abbott “Strengthening the transnational regime complex for climate change” (2014) TEL 3(1) 57 at 59; Douglas M Johnston Consent and Commitment in the World Community: The Classification and Analysis of International Instruments (Transnational Publishers, Irvington- on-Hudson, 1997) at 62–63; and Rakhyun E Kim and Klaus Bosselmann “International Environmental Law in
and political gridlock.133 These factors result in sedately developed134 weak standards135 which quickly become outdated.136 Even if states deliver on their NDCs, warming will still reach 2.4°C.137 Change promoted by formal treaty negotiations will be too little too late to prevent anthropogenic climate change.
the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” (2013) 2(2) TEL 285 at 286.
133 See Klaus Dingwerth and Jessica Green “Transnationalism” in K Bäckstrand (ed) Research Handbook on Climate Governance (Edward Elgar Publishing, Cheltenham, 2015).
134 Streck (2012), above n 23, at 138; and Churchill and Ulfstein, above n 48, at 628–629.
135 Streck (2012), above n 23, at 141; and Oran R Young, Marc A Levy and Gail Osherenko "The Effectiveness of International Environmental Regimes” in Oran R Young (ed) The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (MIT Press, 1999) 1 at 3.
136 Kati Kulovesi, Michael Mehling and Elise Morgera (2019) “Global Environmental Law: Context and Theory, Challenge and Promise” (2019) 8(3) TEL 405 at 408 and 417; Streck (2012), above n 23, at 141; Peter H Sand “The Effectiveness of Multilateral Environmental Agreements: Theory and Practice” (2021) 22 Glob Envtl L Ann 211 at 211-214; and Harold K Jacobson and Edith Brown Weiss “A Framework for Analysis” in Edith Brown Weiss and Harold K Jacobson (ed) Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press, Michigan, 1998) 1 at 141.
137 Climate Action Tracker, above n 1.
Chapter II: Defining the Transnational
As established by Chapter I, orthodox international environmental law is failing to make the progress necessary to prevent anthropogenic climate change. The world is calling out for climate change progress, by any means possible. Arguably, TEL has answered that call. This chapter will establish what is meant by TEL before introducing the SBTi and C40: the two examples of TEL that will be closely investigated in Chapters IV and V.
A The promise of transnationalism
The policy gap left by multilateralism has left space for non-state actors to carve themselves meaningful roles in the climate action space.138 The role of non-state actors has transformed from rule-taking to rule-making.139 The inadequacies of intergovernmental multilateralism have left space which has been eagerly filled by transnational partnerships, networks, and initiatives designed to address climate issues.140 This ‘soft law’ has emerged to overcome political blockages and regulatory dead-ends.141 Institutional innovation and novel governance structures have bloomed as public / private agencies have cooperated and coordinated.142 Transnational cooperation has commonly arisen as an answer to problems that resist solution by single actors.143 In the climate change area, there has been a “surge” of transnational partnerships and initiatives with aims ranging from information collection, capacity building and implementation to standard setting.144 Transnational law influences the effectiveness of multilateral treaties, so must be included in analysis of the international arena.145
138 Jolene Lin "Governing Climate Change: Global Cities and Transnational Lawmaking" (PhD in Law, Erasmus University Rotterdam, 2017) [Lin (2017b)] at 146.
139 See José C S Andrade and José A Puppim de Oliveira “The role of the private sector in global climate and energy governance” (2015) 130(2) J Bus Ethics 375.
140 Charlotte Streck “Strengthening the Paris Agreement by Holding Non-State Actors Accountable: Establishing Normative Links between Transnational Partnerships and Treaty Implementation” (2021) 10(3) TEL 493 at 494.
141 Peer Zumbansen “Transnational Law” (2008) 9 CLPE Research Paper at 743.
142 Streck (2021), above n 140, at 494.
145 Sand and McGee, above n 48, at 264.
B The meaning of ‘transnational law’
It is necessary to specify how this dissertation conceives of TEL. Transnational legal scholarship is no longer “in its infancy”,146 but the area is still “young and dynamic”.147 Immaturity of method and concept have produced widely differing accounts of ‘transnational law’,148 which have unsettled analysis in the relatively nascent field.149 It is often considered that the label is used “without adequate conceptual work on what the term covers”.150 There are two aspects to ‘transnational law’ which must be examined in turn: (1) the transnational; and (2) the law.
1 Transnational
There are three discernible groupings of thought in what qualifies something as transnational:
(1) any transboundary law or regulation; (2) private cross-border regulatory processes; or (3) private and semi-private cross-border regulatory processes.151
(a) The broad
Many conceive of ‘transnational law’ in an incredibly broad sense.152 Discussions of transnational law begin almost universally with Philip Jessup’s definition, but that is often where consensus ends. Jessup used the term ‘transnational law’ to encompass “all law which regulates actions or events that transcend national frontiers”.153 This definition includes both public and private international law, but “breaks the frames” of thought surrounding traditional interstate relationships.154
Although conceptually important in the history of transnational law, this broad line of transnational theory includes any law which crosses boundaries. Modern scholars have
146 Elizabeth Fisher “The Rise of Transnational Environmental Law and the Expertise of Lawyers” (2012) 1(1)
TEL 43 at 45.
147 Veerle Heyvaert and Leslie-Anne Duvic Paoli “The meanings of transnational environmental law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) i at xiv.
148 Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel and Josephine Van Zeben “Ten Years On: Rethinking Transnational Environmental Law” (2021) 10(3) TEL 391 at 391.
149 Kulovesi, Mehling and Morgera, above n 149, at 405.
150 Gregory Shaffer “Transnational Legal Ordering and State Change” in Gregory Shaffer (ed) Transnational Legal Ordering and State Change (Cambridge University Press, Cambridge, 2012) 1 at 4.
151 Dilling and Markus, above n 6, at 182.
152 Philip Jessup “Transnational Law” (Storrs Lectures on Jurisprudence, Yale Law School, New Haven, 1956); Harold Koh “Why transnational law matters” (2006) 24(4) Penn State International Law Review 745; Shaffer and Bodansky, above n 8; Zumbansen, above n 141; and Etty and Heyveart (2021), above n 148, all adopt definitions in varying breadths.
153 Jessup, above n 152, at 2.
154 Gunther Teubner Global Law Without a State (Dartmouth Publishing Company, Brookfield, 1997) at 145.
operationally defined transnational law as anything: (1) “downloaded” from the international to the domestic; (2) “uploaded then downloaded”; or (3) borrowed or “horizontally transplanted” from one national system to another.155 Although this conception of ‘transnational’ is interesting, it lacks analytic precision. As globalisation increasingly erodes the importance of state-sovereignty,156 it is important to examine and isolate the actions of non- state actors. The state “is but one” of the agents engaged in governing international climate action.157 Consequently, this definition does not aptly distinguish the novel contributions of other agents and must be narrowed.
(b) The purely private
Many scholars focus only on private non-state actors.158 This is excellent for looking “beyond the state”,159 at dynamic areas of change. However, new law is continually self-reproduced by a network of both public and private authors.160
There are many transnational actors beyond the private, and this fact is appreciated by Parties in decisions made under the UNFCCC who refer to “non-Party stakeholders, including civil society, the private sector, financial institutions, cities and other subnational authorities, local communities and indigenous peoples”.161 Significant numbers of institutions address climate change through the setting of standards for carbon emissions, structuring markets, financing and managing projects, which involve both private actors, sub-national governments, and inter-state organisations which operate across borders.162 It is this specialised law that we are interested in.
(c) The dynamic
The definition adopted by this dissertation is a middle ground between the broad and the purely private: transnational laws as those norms, procedures and decisions which regulate certain
155 Koh, above n 152, at 745–746.
156 Ernst-Ulrich Petersmann State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law? (Working Paper, EU LAW, 2006) at 7.
157 See Jolene Lin “The Emergence of Transnational Environmental Law” in Louis Kotzé (ed) Environmental Law and Governance for the Anthropocene (Hart, London, 2017) 331 [Lin (2017b)].
158 Streck (2012), above n 23; Streck (2021), above n 140.
159 Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel, and Josephine Van Zeben “Transnational Environmental Law and ‘Other’ Environmental Laws” (2019) 8(3) TEL 393 at 394.
160 Marcelo Dias Varella Internationalization of Law: Globalization, International Law and Complexity
(Springer, Berlin, 2014) at 318.
161 UNFCCC Adoption of the Paris Agreement Decision 1/CP 21 (Document FCCC/CP/2015/10, Add 1, 29 January 2016), section V.
162 Abbott, above n 132, at 60.
relations, but do not derive from national or international sources of law.163 This definition captures those ‘laws’ established by private, civil, or administrative actors beyond governmental or parliamentary capacities.164Essentially, transnational law will be any law crossing boundaries that is not formally enacted by or between states.165 This definition excludes orthodox international law, but is wider than the purely private, and can consequently capture a wider range of dynamic transnational activity in the climate space.
In summary, this dissertation deems the cross-border activities of both private actors and/or sub-national governmental units as ‘transnational’. Although inter-state action is excluded, ‘transnational’ legal governance interacting with formal state action is obviously open for consideration.
2 Law
It is important to clarify exactly what processes constitute transnational law. It is commonly argued that transnational climate actions constitute a tangible sphere of governance.166 But, as has been asked so many times before, what qualifies as law?
In the classification of transnational law, issues often arise where organisation norms regulating conduct have non-binding persuasive force rather than binding authority.167 Some consider transnational law must be “complemented, endorsed, or limited” by formal legal structures to legitimately be law.168 Voluntary codes of conduct are very, very soft law, and challenge traditional conceptions of the law.169
The complex jurisprudential question ‘what is law?’ is not only beyond the scope of this dissertation but misses the point of its enquiry entirely. Transnational law may erode the integrity of legal formalism and disturb legions of legal positivists, but drawing lines around the proper and improper ignores the sophisticated reality of transnational regulation. Increasingly, in the wake of globalisation, privatisation and liberalised trade, there are a number
163 Dilling and Markus, above n 6, at 182.
165 Carrie Menkel-Meadow “Why and how to study transnational law” (2011) 1(1) UC Irvine Law Review 97 at 102.
166 Sander Chan, Clara Brandi and Steffen Bauer “Aligning Transnational Climate Action with International
Climate Governance: The Road from Paris” (2016) 25(2) RECIEL 238 at 238.
167 Veerle Heyvaert “The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation” (2017) 6 TEL 205 at 223.
168 Dilling and Markus, above n 6, at 183.
169 Zumbansen, above n 141, at 742.
of normative communities participating and stimulating international climate governance.170 Hart-induced hysteria aside,171 this dissertation will be very liberal when considering what qualifies as ‘law’ and will not require legal validity to be established through rules of recognition.The erosion of traditional institutions and pillars of international law has created the space for transnational law, so requiring formal institutions seems counter-productive. This is post- Westphalian reality: states no longer dominate international affairs.172 A rigid definition of law is “not a useful strategy”,173 and would compromise analysis in this dissertation.
For the purposes of this dissertation any form of agreement or self-regulation will be sufficient if it affects or has the power to affect behaviour or processes beyond a single state border.174 TEL is not merely crystallised in formal processes, but is ongoing and interactional.175 This understanding of ‘law’ derives from a socio-legal conception of legitimacy: where norms that shape conduct and behaviour meet internal legitimacy criteria.176 If TEL is to be legal, it must have an “element of establishment”.177 This dissertation takes the stance that where non-state actors construct and implement norms and voluntary standards, they are constructing and implementing law.178 This will be distinguished from the mere influence or activity of transnational actors.
Thus, for the purposes of this dissertation, TEL is any norm or regulation constructed and implemented across borders by private actors and/or subnational actors. It must be noted that the definition adopted by this dissertation is not the only conception of TEL, merely the most suitable one for this dissertation.
170 Lin (2017a), above n 138, at 6.
171 See Herbert L A Hart, Joseph Raz, Penelope Bulloch, and Leslie Green The Concept of Law (3rd ed, Oxford University Press, Oxford, 2012).
172 Lin (2017a), above n 138, at 7.
173 Paul Schiff Berman “A Pluralist Approach to International Law” (2007) 32 Yale J Int L 301 at 302.
174 Menkel-Meadow, above n 165, at 102; and Shaffer and Bodansky, above n 8, at 32.
175 Brunnée, above n 5, at 6.
176 See Jutta Brunnée and Stephen J Toope Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, Cambridge, 2010).
177 Neil Walker Intimations of Global Law (Cambridge University Press, Cambridge, 2015) at 171.
178 Jolene Lin “The role of subnational actors in transnational climate change law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 216 at 220.
C The importance of transnational law
The game is changing: states are no longer the only player in the international arena.179 Transnationalism and transnational law increasingly influence the international and domestic laws and policies presiding over us,180 and are here to stay for the foreseeable future.181 Without recognising this, the true complexity of international governance cannot be observed.182 The transsystematic quality of international law means that understanding the international governance regime requires an understanding of law and principles beyond national boundaries and conceptions of states.183 Accepting and integrating transnational actors and transnational law into international law accounts for the collapse of the public / private and national / international dichotomies, reflects the erosion of state sovereignty stemming from globalisation, and properly weights the influence of non-state actors.184
Although some consider that polycentrism of international legal reality requires understanding of transnational legal elements,185 transnational law is regarded by some as aspirational rather than settled doctrine.186 Perhaps there is some truth to the aspirational label. However, many consider that transnationalism is needed to combat the constrained nature of multilateralism.187 Many are also calling for the transnational regime to be structured and strengthened.188 The theoretical potential of transnationalism to mitigate climate change is enormous,189 and will be discussed in the following chapter.
D Transnational environmental law in practice
Chapters IV and V of this dissertation conduct case studies of two pre-eminent examples of TEL. SBTi was chosen as it is purely private, very large and its Net-Zero Standard was the first of its kind established for corporations. The initiative has received “little attention” in academic literature,190 and the effectiveness of the SBTi has been identified as a “critical research
179 Dingwerth and Green, above n 133, at 153.
180 Koh, above n 152, at 746.
181 Abbott, above n 132, at 62.
182 Zumbansen, above n 141, at 743.
183 Menkel-Meadow, above n 165, at 101.
184 See Emily Webster and Laura Mai “Transnational environmental law in the Anthropocene” (2020) 11(1-2) TLT 1.
185 See Jaako Husa Law and Globalisation (Edward Elgar, Cheltenham, 2018).
186 See Walker, above n 177.
187 Streck (2012), above n 23, at 138.
188 Abbott, above n 132, at 57.
189 Chan, Brandi and Bauer, above n 166, at 245.
190 Jannick Giesekam, Jonathan Norman, Alice Garvey and Sam Betts-Davies “Science-Based Targets: On
Target?” (2021) 13(1657) Sustainability 1 at 1.
gap”.191 Conversely, C40 was chosen as an example of a pre-eminent subnational transnational network. C40 is an “archetypical global city-network”,192 which is “widely recognised as the leading network of global cities addressing climate change”.193 While there is increasing literature on the role of cities in climate change governance, little scholarship has closely assessed the legal effect and relevance of these governance actions.194
1 SBTI as transnational environmental law
The SBTi, founded by the CDP, World Resources Institute, World Wide Fund for Nature and the United Nationals Global Compact, aims to promote “ambitious corporate climate action” through the adoption of science-based targets.195 In pursuit of this goal, the SBTi established the Corporate Net-Zero Standard: the first global framework for setting corporate targets consistent with reaching net-zero emissions by 2050.196 The Net-Zero Standard satisfies the definition of TEL set out by this dissertation.
The Net-Zero Standard established a standardised understanding of ‘net-zero’, and encourages rapid, deep emissions cuts across a company’s entire value chain.197 For this purpose, SBTi has split emissions into three categories: (1) emissions produced through company processes are scope 1; (2) those produced through electricity and heat are scope 2; and (3) those generated by supplies and end-users are scope 3.198 Companies must also set both short and long-term targets which support the halving of emissions by 2030, and the achievement of their Net-Zero Standard by 2050.199 The Net-Zero Standard Criteria establish the criteria which must be met for net-zero targets to be SBTi validated.200
The SBTi’s strategy is to achieve “critical mass” in the world market: their “diffusion of innovations” theory hypothesises that wide-spread adoption of targets will follow from target- setting by 20 per cent of a ‘system’.201 Consequently, they aim to ensure 20 per cent of
191 At 2.
192 David Gordon "The Politics of Accountability in Networked Urban Climate Governance" (2016) 16(2) GEP
82 at 82.
193 Lin (2017a), above n 138, at 101.
195 SBTi “Ambitious Corporate Climate Action” <https://sciencebasedtargets.org/>.
196 SBTi SBTI Corporate Net-Zero Standard (SBTi, Version 1.0, October 2021).
197 Above n 196.
198 Above n 196.
199 SBTi Science-Based Net-Zero: Science Based Targets Initiative Annual Progress Report, 2021 (SBTi, Annual Progress Report, June 2022) at 3.
200 SBTi SBTI Corporate Net-Zero Standard Criteria (SBTi, Version 1.0, October 2021).
201 Luiz Amaral “Ambition, growth and evolution: Six key takeaways from the SBTi’s new strategy” (19 July 2022) SBTi <https://sciencebasedtargets.org/blog/ambition-growth-and-evolution-six-key-takeaways-from-the- sbtis-new-strategy>.
businesses in either a territory or sector, or 10,000 companies world-wide, have adopted science-based targets by 2025.202
2 C40 as transnational environmental law
C40 is a transnational global network of mayors,203 who lead their cities in taking “ambitious, collaborative and urgent climate action” aligned with “science-backed targets”.204 C40 is distinct from other transnational schemes due to its limited and selective membership, which is curated by performance-based requirements.205 However, its voluntary participation, lack of a formal hierarchy and limited compliance measures are fairly typical.206
The C40 network has established a number of voluntary standards: two examples are The Global Covenant of Mayors and the Cities Race to Zero. These are examples of transnational law. The Global Covenant of Mayors mandates regular public reporting of GHG inventories, and the establishment and maintenance of climate action plans for compliance.207 The Cities Race to Zero aligns cities with science based targets,208 and was made by C40 in partnership with a number of transnational environmental networks.209 Signing up to the Cities Race to Zero requires a public endorsement of the initiative’s principles, a pledge to reach net-zero before or during the 2040s, the setting of an interim fair-share target for emissions reductions for the decade, planned climate action and annually reported progress.210
This dissertation focuses on membership of C40 itself as TEL. This is driven by the lack of fruitful analysis existing on the aforementioned transnational law, but also the distinctive elements of the C40 scheme. Although C40 is the transnational governance network, I contend that membership of the C40 constitutes undertaking transnational legal obligations. C40 is distinctive in that it has performance-based membership requirements.211 For example, in 2016, commitment to delivering an “inclusive and resilient climate action plan” consistent with
202 Amaral, above n 201.
203 C40 Cities “Home” <https://www.c40.org/>.
204 C40 Cities “Our Cities” <https://www.c40.org/cities/>.
205 Gordon, above n 192, at 84.
206 Kristine Kern and Harriet Bulkeley “Cities, Europeanization and multi-level governance: Governing climate
change through transnational municipal networks” (2009) 47 JCMS 309 at 310.
207 Compact of Mayors “Compact of Mayors: Definition of Compliance” (July 2015)
<https://www.bbhub.io/mayors/sites/14/2015/07/Compact-of-Mayors_Definition-of-Compliance.pdf>.
208 C40 Cities “Cities Race to Zero” <https://www.c40.org/what-we-do/building-a-movement/cities-race-to- zero/>.
209 Above n 208.
210 Above n 208.
211 C40 Cities “Statement by the C40 Cities Steering Committee on the organisation’s new Leadership
Standards” (6 January 2021) <https://www.c40.org/news/statement-by-the-c40-cities-steering-committee/>.
the Paris Agreements 1.5°C ambition became a requirement of membership.212 Membership is voluntary, and governance is “non-hierarchical and horizontal”, but “decisions taken within [C40] are usually directly implemented by member cities”.213The C40 Leadership Standards for 2021–2023 came into effect on 1 January 2021, and prescribe the minimum requirements for member cities, which must be adhered to on alleged threat of removal.214 The C40 Leadership Standards set an “ambitious standard” for C40’s membership cities.215 First, cities must adopt a regularly updated climate action plan aligned with the 1.5°C limit on warming contained in the Paris Agreement.216 Second, cities must stay on track to achieve their climate action plan and contribute to halving the emissions of C40 by 2030. 217 Third, cities must then use the tools available to them to “address the climate crisis” and mainstream their targets into the “most impactful” decision-making processes for their city.218 Fourth, they must innovate and take action to reduce emissions beyond those which the city is directly able to control.219 Fifth, the member city must “demonstrate global climate leadership” in supporting the Paris Agreement.220
Both SBTi’s Net-Zero Standard and C40’s membership requirements will be the principal subjects of the analysis in Chapters IV and V.
212 C40 Cities “About C40” <https://www.c40.org/about-c40/>.
213 Kern and Bulkeley, above n 206, at 310.
214 C40 “About C40”, above n 212.
215 Above n 212.
216 C40 “Statement by the C40 Cities Steering Committee on the organisation’s new Leadership Standards”, above n 211.
217 Above n 211.
218 Above n 211.
219 Above n 211.
220 Above n 211.
Chapter III: Forsaking Process for Progress
This chapter summarises the theory on the progress gains and process costs offered by TEL and finds that scholarship tends to converge on the point that progress is gained by forsaking process. The chapter then sets out the analytic framework for progress and process that will be used to test the question: can we forsake process for progress?
A The Promise of Progress
Theoretically, progress is achieved by TEL through: (1) bypassing state consent; (2) enabling flexibility; and (3) coordinating and maximising of economic efficiency.
1 Bypassing state consent
Progress made by TEL is faster than state-centric progress.221 Transnational legal schemes and standards are often born from state inaction,222 whether due to an inability or an unwillingness to act.223 TEL has both a “destructive and constructive thrust”: in constructing alternatives to strict multilateralism it destroys the importance of, and need for, state consent.224 This bypassing of recalcitrant states, or states who lack the capability for successful climate interventions,225 pushes forward the response to climate change. In the face of weak governance or a lack of political will, non-state actors do not need to defer to government schemes and action but can take collective and coordinated action through transnational environmental schemes.226 This helps bridge the “action gap” in climate action,227 by responding to regulatory blocks and gaps.
221 Charlotte Streck “Filling in for Governments? The Role of the Private Actors in the International Climate Regime” (2020) 17(1) JEEPL 5 at 18.
222 See Jessica F Green and Graeme Auld “Unbundling the Regime Complex: The Effects of Private Authority”
(2017) 6(2) TEL 259.
223 Streck (2020), above n 221, at 18.
224 Zumbansen, above n 141, at 744.
225 Abbott, above n 132, at 61.
226 Streck (2020), above n 221, at 18.
2 Flexibility
Significant amounts of TEL emerges in regulatory gaps.228 This is partially because of TEL’s greatest virtue: flexibility. It is argued that flexibility increases the legitimacy and compliance- rates of TEL, as it allows for reflexivity, adjustment, experimentation and learning.229
There are three facets of flexibility,230 all of which TEL possesses due to its “diversity and fluidity of form”.231 First, TEL allows a certain discretion in the application of standards, which fosters participation and learning.232 Second, TEL is adaptively flexible: alleviating risk and uncertainty through temporal adjustments.233 Third, it provides for market-based collaboration and innovation, rather than strictly developed and enforced standards.234 These features pull in more participants, allow for adjustment in the face of uncertainty, and make compliance more cost-effective for actors.235
3 Coordination and economic maximisation
As TEL is generally entirely voluntary,236 institutes and schemes must work hard to obtain buy-in. The flexibility of schemes, and their voluntary and non-binding nature, attracts huge numbers of ‘members’.237 These members are attracted to schemes which are economically efficient for them, which is considered to increase compliance to those chosen schemes.238
TEL responds to supply and demand, which promotes efficiency.239 The existence of a number of transnational initiatives with voluntary participation allows non-state actors to “scheme shop”.240 This autonomy allows non-state actors to exploit their competitive advantage to pursue emissions reductions most efficient for them. TEL grants non-state actors’ autonomy to
228 Dilling and Markus, above n 6, at 62.
229 Robert Falkner “A Minilateral Solution for Global Climate Change? On Bargaining Efficiency, Club Benefits, and International Legitimacy” (2016) 14 Perspectives on Politics 87 at 97.
230 Sébastien Jodoin, Ling Chen and Carolina Gueiros “Vice or virtue? Flexibility in transnational environmental law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 284 at 284.
231 Walker, above n 177, at 56.
232 Jodoin, Chen and Gueiros, above n 230, at 285.
236 Dilling and Markus, above n 6, at 179.
238 Abbott, above n 132, at 67.
239 Walter Mattli and Ngaire Woods The politics of global regulation (Princeton University Press, Princeton, 2009) at 43.
240 Streck (2020), above n 221, at 18.
commit to what they deem most efficient, which motivates action where there previously was none.TEL stimulates collective action from non-state actors like cities, firms and NGOs and then coordinates this action.241 TEL facilitates participation in a highly fragmented space through the accommodation of interests.242 The dissemination of information, standard setting, establishment of targets, creation of methods and consultation facilitated by TEL ensures that climate action taken by non-state actors is not disparate but focussed.
B Sacrificing Process
Theoretically, TEL achieves progress at the expense of process. Process costs result in: (1) legitimacy issues; (2) influence from self-serving interests; (3) lacking transparency and accountability; and (4) few hard, binding rules.
1 Legitimacy
With respect to the process failings of TEL, the elephant in the room is the lack of democratically mandated states. However, a focus on state-based legitimacy distracts from the assessment of TEL’s own merits and failings. Regardless of traditional conceptions of legitimacy,243 TEL is happening. Consequently, this discussion of process failings will not focus on state-derived legitimacy.
2 Interests represented
Many transnational climate standards are driven and dominated by specific groupings based in industrialised countries in the global North.244 Additionally, this relatively homogenous composition of TEL initiatives opens them up to characteristic weaknesses: business-focussed initiatives will be undemanding, while NGO-driven schemes will have limited uptake.245 Although some dispute that global and transnational law is inclusive and enhances opportunities for a variety of actors to participate in deliberation,246 some of these actors owe more duties to their shareholders than the public. Consequently, TEL is prone to co-option by
241 Abbott, above n 132, at 17.
242 Zumbansen, above n 141, 745.
243 See Dolf Sternberger “Legitimacy” in David Sills (ed) International Encyclopedia of the Social Sciences
(Vol 9, Macmillan 1968) 244.
244 Dingwerth and Green, above n 133, at 156.
245 Abbott, above n 132, at 76.
246 Kulovesi, Mehling and Morgera, above n 149, at 424.
self-serving interests. As TEL gains more autonomy from ‘classic’ environmental law, the riskof influence from particular interests grows.247
3 Transparency and accountability
The increasing influence of transnational standards, particularly those driven by private non- state actors, is raising concerns about a lack of transparency and integrity.248 This lack of transparency may be around how standards are set, who is setting them, and whether members are complying with standards. Transnational standards may not be governed by publicly available due process rules, which results in diminished public protections.249 A particular concern, with potential vested interests involved in the crafting of transnational standards, is a complete lack of accountability due to lacking transparency.250
4 Voluntary and Flexible
The flexibility of TEL is a double-edged sword: as well as undermining predictability and the binding character of standards, flexibility mechanisms can be used to bolster membership while avoiding strict compliance.251 Excessive flexibility undermines effectiveness and credibility. ‘Self-reporting’ and ‘self-monitoring’ systems can lack rigour.252
Where standards and targets can be flexibly defined by participants, there is a perverse incentive to undermine effectiveness for achievability.253 The setting of baselines or targets can have questionable appropriateness or ambition.254 Targets and baselines which are unambitious not only undermine progress, but also exaggerate the apparent ‘progress’ or ‘compliance’ achieved by the scheme.255
The voluntary nature of TEL means that ‘members’ must be enticed to participate through ‘benefits’. These benefits include reputational benefits, consumer access, competitive economic advance and industry leadership.256 Obviously, this has the potential to limit progress through lack of participation, however, it also has the potential to compromise process. To be
247 Dilling and Markus, above n 6, at 205–6.
248 Green and Auld, above n 222, at 98.
251 Jodoin, Chen and Gueiros, above n 230, at 292–293.
252 Helmut Breitmeier, Oran R Young and Michael Zürn Analyzing International Environmental Regimes –
From Case Study to Database (MIT Press, Cambridge, 2006), at 71.
253 Jodoin, Chen and Gueiros, above n 230, at 292–293.
255 Harro van Asselt and Joyeeta Gupta “Stretching Too Far? Developing Countries and the Role of Flexibility Mechanisms beyond Kyoto” (2009) 28 ELJ 311 at 377.
256 Abbott, above n 132, at 76.
blunt, members will only accede to schemes that make them look good. For this reason, TEL can be used for ‘greenwashing’: where a company changes or presents their behaviour for the purpose of good optics rather than environmental improvements.257 Standards formulated by non-state actors for themselves could be effective self-regulation, only if sufficiently stringent and credible.258 Non-state actors are not fundamentally more willing to take on onerous climate change obligations than states.
C The Relationship Between Process and Progress
This dissertation investigates the relationship between process and progress in practice through two case studies. This dissertation is non-aspirational: I am not arguing for or against the transnationalisation of climate change action. TEL has already crystallised. There are already a number of actors, institutions and schemes forming a transnational “regime complex”.259 Literature converges on the point that TEL is here to stay and must be taken seriously.260
The contention surrounds TEL’s substantive and procedural “trade-off”.261 The process requirements of traditional international law are made by the international community to protect the international community. They are not made to slow progress unduly, but attempt to ensure that progress is: (1) the right progress; (2) conducted in the right way; and (3) achievable and measurable. Is any progress worthwhile regardless of the process cost? Alternatively, is there a point at which a lack of process compromises progress?
We are in dire need of progress in the war against climate change. The “enabling” character of TEL is its greatest asset.262 TEL enables progress. However, what scientific basis does this progress need to have? How ambitious should this progress be? How should this progress be monitored? There is a fundamental relationship between progress and process. There is a point at which process is necessary to create, track and validate progress. “[S]ubject to substantive and procedural constraints”, the “opportunities” created by TEL may outweigh its “risks”.263
In Chapter IV and V, the relationship between process and progress for both the SBTi and C40 will be assessed to determine whether the process costs are too great to justify the progress
257 Dilling and Markus, above n 6, at 194.
258 Streck (2020), above n 221, at 22.
259 Abbott, above n 132, at 60.
261 Shaffer and Bodansky, above n 8, at 38.
262 Jerneja Penca “Regulatory instruments of transnational environmental governance” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 88 at 102.
263 Shaffer and Bodansky, above n 8, at 41.
achieved. The concepts ‘progress’ and ‘process’ will now be defined, as they will be used inthis analysis.
1 Progress
In the context of international or TEL, there is a vast literature and little consensus on what constitutes progress,264 good practice,265 or even effectiveness.266 There are any number of criteria that could be adopted: the United Nations Conference on Environment and Development Preparatory Committee set out 32 criteria for evaluating the efficacy of instruments and agreements.267
This dissertation will adapt the approach articulated by Peter Sand who simplifies the inquiry into effectiveness into three basic questions.268 First, a test of legal effectiveness: how and to what extent do members meet their obligations? Second, a test of behavioural effectiveness: what are the measurable changes attributable to member participation? Third, a test of ecological effectiveness: how successfully have the environmental problems targeted by the scheme been solved or mitigated?
To assess progress, this dissertation will ask three questions. First, is there an extensive membership who comply with their obligations? Second, what are the measurable positive changes brought about by member behaviour attributable to participation? Third, are these obligations and measurable changes ambitious enough to be ecologically effective?
2 Process
In the same vein, a comprehensive assessment of process could examine any number of criteria. TEL pursues a socio-legal legitimacy, rather than an orthodoxly legal one.269 Its legitimacy stems from due process. This dissertation employs a bare-bones analytic toolkit, and examines ‘due process’ through participation, transparency, and accountability. These are the elements
264 Chan, Brandi and Bauer, above n 166, at 244; Sand, above n 136, at 211–213.
266 Oran R Young, Marc A Levy and Gail Osherenko "The Effectiveness of International Environmental Regimes” in Oran R Young (ed) The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (MIT Press, 1999) 1 at 3.
267 Sand, above n 136, at 211.
269 Dan Bodansky “Legitimacy” in Dan Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of
International Environmental Law (Oxford University Press, 2007) 704 at 709.
of due process emphasised by the UNFCCC,270 and the Enhanced Transparency Frameworkunder the Paris Agreement.271
Analysis of transparency examines the “disclosure of information intended to evaluate and/or steer behavior”.272 Transparency has a close relationship with accountability through its enablement of scrutiny. Outcome transparency can be distinguished from procedural transparency.273 Outcome transparency focusses on “openness about regulated or unregulated behaviours”.274 The Paris Agreement deified data transparency as the “driving force” of effective bottom-up climate mitigation.275 This dissertation evaluates transparency in accordance with the objective of the Paris Agreement transparency framework.276 This framework aims to promote “trust... confidence and... effective implementation”,277 and allow “clarity and tracking of progress”.278 Consequently, there ought to be enough information and data to measure progress towards clear targets, such that public scrutiny from interested actors can actually hold actors accountable. This dissertation will dually consider procedural legitimacy, which concerns “the openness of governance processes, such as decision-making or adjudication”.279
Analysis of accountability can encompass a number of enquiries. Grant and Keohane define accountability as where some actors:280
... have the right to hold other actors to a set of standards to judge whether they have filled their responsibilities in light of those standards, and to impose sanctions if they determine that those responsibilities have not been met.
This aspect of accountability focusses on performance of obligations. Actors ought to answer for action or omission around accepted objectives, obligations or targets, and should be “sanctioned” for compliance failures.281 There are additional dimensions: Chan and Pattberg
272 Ruth Grant and Robert Keohane “Accountability and Abuse of Power in World Politics” (2005) 99(1) APSR
29 at 29.
273 Graeme Auld and Lars H Gudbrandsen “Transparency in Nonstate Certification: Consequences for Accountability and Legitimacy” (2010) 10(3) GEP 97 at 99.
275 Lin (2017a), above n 138, at 151.
276 UNFCCC “Moving Towards the Enhanced Transparency Framework” <https://unfccc.int/enhanced- transparency-framework>.
277 Paris Agreement, art 13(1).
279 Auld and Gulbrandsen, above n 273, at 99.
280 Grant and Keohane, above n 272, at 29.
state that accountability requires a “coherent set of rules and procedures, delineating who takes part in decision-making”, and how people are held to be responsible for their actions.282 Gordon considers that how these rules and procedures are selected and shared are also relevant.283 Each case study will implicate different aspects of accountability. However, based on the above definitions of accountability, I consider there are two main inquiries: the accountability of the organisation in defining obligations, and the accountability of the actors in fulfilling obligations.Analysis of participation engages with ideas of democratic legitimacy and equity. The Paris Agreement represents a multilateral commitment to the ideas encapsulated by ‘participation’, whether it delivers on these or not. Consequently, analysis of participation is informed by the principles underlying the Paris Agreement. The Agreement emphasises the importance of public participation:284 who is participating in the scheme? Parties under the Agreement must take particular care to consider and engage with developing country parties and other vulnerable groups.285 Therefore, the range of participants represented by any scheme is relevant. The leadership or governance of the scheme is important: who is making the decisions for participants? Analysis also considers what consultation was engaged in, with both scheme participants and the wider community.
282 Sander Chan and Philip Pattberg “Private Rule-Making and the Politics of Accountability: Analyzing Global Forest Governance” (2008) 8(3) GEP 103 at 106.
283 Grant and Keohane, above n 272, at 29.
284 Paris Agreement, Preamble.
Chapter IV: The Progress and Process of the SBTi
This chapter analyses the relationship between progress and process in TEL through a case study of the SBTi. The SBTi and their Net-Zero Standard coordinate Paris-aligned corporate decarbonation by defining best practice, guiding and informing target-setting, and independently assessing and approving companies’ targets.286 To join the SBTi, companies commit through submitting a letter establishing intent to set a target before developing emissions reductions target consistent with SBTi criteria.287 Companies then submit their targets for validation, announce their target publicly, and then disclose company-wide emissions and progress annually.288
A Progress and the SBTi 1 Membership compliance
As of October 2022, there are 3,784 companies taking action, 1,379 with net-zero commitments, and 1,804 with science-based targets.289 By the end of 2021, the companies committing to science-based targets constituted more than a third of the global market economy,290 and 27 per cent of high-impact companies.291 “Record numbers” of companies are committing to science-based targets each year.292 However, the significant majority of these countries are highly concentrated in Europe, America and Japan, and few are from heavy- emitting industries.293Compliance is present, but not uniform. With respect to compliance, Giesekam and others found that out of 81 early adopters, only a bare majority were on track to achieve their targets.294 This assessment of target achievement is based upon information disclosed by companies. Despite the SBTi process requiring annual disclosures, in the SBTi Progress Report
286 SBTi “Ambitious Corporate Climate Action”, above n 195.
287 Above n 195.
288 Above n 195.
289 SBTi Annual Progress Report 2021, above n 199, at 6.
294 Giesekam and others, above n 190, at 1.
for 2021, they noted only 46 per cent of companies had reported progress on all targets.295 Out of the rest, 26 per cent had reported progress on at least one target and 28 per cent on none.296Companies have been significantly less successful at reporting and reducing emissions for which they are indirectly responsible. Per Giesekam and others’ results, extremely limited progress has been made on scope 3 emissions.297 Targets which include scope 3 are significantly more likely to be behind target: 75 per cent of targets which exclude scope 3 are on track to be achieved or achieved, which drops to 52 per cent with inclusion.298
2 Measurable changes from behaviour
Although obfuscated by emissions reductions caused by COVID-19, between 2015 and 2020, SBTi companies with approved targets achieved a total-emissions decrease of 29 per cent, and higher rates than peers without SBTi targets.299
These ‘measurable positive changes’ are modelled linearly. The SBTi consider that there will be a linear reductions rate of 8.8 per cent per annum in scope 1 and 2 emissions.300 Crucially, the SBTi disclaim (in a discrete footnote) that their linear modelling of future emissions reductions is a simplifying assumption that is not necessarily in line with the realities of emissions reductions.301 Bolton and Kacperczyk observed that companies tended to reduce at higher rates in initial years, and did not continue to make linear progress.302 It is likely that as more reductions are made, there will be diminishing returns to reduction efforts: it will become more difficult to reduce at the same rate. Additionally, targets achieved later do not account for the effects of cumulative emissions for the cases where reductions are unsuccessful or occur later in the target period.303
The measurability of these results is also contentious. The SBTi also notes an “enduring gap in climate reporting”:304 only 46 per cent of companies included in the SBTi analysis had reported progress on all targets, with 26 per cent only reporting progress on at least one, and 28 per cent
295 SBTi Annual Progress Report 2021, above n 199, at 7.
297 Giesekam and others, above n 190, at 1.
299 SBTi Annual Progress Report 2021, above n 199, at 7.
302 See Patrick Bolton and Marcin T Kacperczyk Firm commitments (Research Paper, Columbia Business School, 2022).
303 Giesekam and others, above n 190, at 14
304 SBTi Annual Progress Report 2021, above n 199, at 29.
having no public information on their progress.305 For the 26 per cent of companies who reported on at least one target, reporting on other targets was missing entirely, lacked context and information, or was unhelpful.306 In 2021, although there was a massive increase in participants, only 72 per cent of companies publicly reported progress against their targets, down from 87 per cent in 2020.307Giesekam and others found that despite significant efforts towards increasing uptake of science-based targets, the initiative did not monitor progress against approved targets, but left companies to self-report and disclose through schemes such as the CDP (previously the Carbon Disclosure Project).308 They found that company reporting practices “were highly variable and often of poor quality”, and that the SBTi had to improve the “transparency, consistency and comparability of targets”.309 Consequently, Giesekam and others conclude that there is a “critical gap” in the measurement, reporting and verification (MRV) component of the SBTi.310
There is also contention as to whether the SBTi is compelling positive change or merely coordinating motivated actors. It is difficult to isolate what changes are due to SBTi membership. Bolton and Kacperczyk found that companies with lower initial emissions were more likely to achieve their targets.311 Frieberg and others found that companies were more likely to participate in the scheme if they had already achieved ambitious internal targets.312 From this, it could be inferred that the SBTi is effective in coordinating behaviour of those who have already altered their behaviour, rather than those who need to modify their behaviour.
3 Ecologically effective ambition
For targets to be approved, they must be validated by the SBTi. The SBTi has rigorous target validation protocols, which regularly update to reflect the recent climate science.313 Per their last progress report, the SBTi claims that 80 per cent of companies with approved targets in 2021 were aligned with halting anthropogenic climate change at 1.5C, 63 per cent of this group intend to cut emissions at a higher rate than required.314
305 SBTi Annual Progress Report 2021, above n 199, at 7.
308 Giesekam and others, above n 190, at 3.
311 See Bolton and Kacperczyk, above n 302.
312 See David Freiberg, Jody Grewal and George Serafeim Science-based carbon emissions targets (Working Paper, Harvard Business School, 2021).
313 SBTi Annual Progress Report 2021, above n 199, at 3.
Science-based targets derive significant legitimacy from “claims of expert knowledge”.315 However, even if targets are labelled as ‘science-based’, science is not objective and can reflect the opinion of any expert, public health official or scientific literature.316 Science-based targets are aligned with scientific evidence, but may involve compromises for “responsibility and feasibility”.317 The SBTi is in the process of creating a Technical Council who will “make difficult calls based on real-world evidence” to “guide the rules and processes... need[ed] to maintain scientific credibility”.318 They claim that they strongly achieve at assessing and verifying that targets are appropriately ambitious.319 The SBTi is aiming to scale up ambition particularly in underrepresented regions and the heavy-emitting sectors,320 but these are currently still lagging significantly.One key issue is that the scope of the target heavily influences achievement. Participants must include scope 3 emissions in their scope 1 and 2 emissions where scope 3 emissions constitute 40 per cent or more of total emissions.321 Ninety-six per cent of companies with approved targets have their scope 3 emissions included within that target.322 However, accounting issues for scope 3 emissions arise where companies use varying methods to estimate the size of these emissions,323 which muddies the measurability of progress. The categorisation of scope 3 emissions has also been criticised for recasting climate responsibility for outsourced corporate activity: pushing the onus for measuring and reducing emissions further down the supply chain to less powerful actors.324
Another determinative factor for target achievement is target ambition. A key finding of Giesekam and others was that the majority of achieved targets had had significant progress made prior to the year of SBTi approval.325 Out of the sample of achieved targets evaluated,
315 Lin (2017a), above n 138, at 163.
316 See Bedirch Moldan, Svatana Janoušková,and Thomas Hák “How to understand and measure environmental sustainability: Indicators and targets” (2012) 17 Ecological Indicators 4.
317 See Andersen and others “Defining ‘Science-based targets’” (2021) 8(7) Natl Sci Rev 1.
318 Amaral, above n 201.
319 Above n 201.
320 SBTi Annual Progress Report 2021, above n 199, at 8.
321 SBTI “FAQ: Do I need to inform the SBTi if my company goes through changes that may impact the target?” <https://sciencebasedtargets.org/faqs#do-i-need-to-inform-the-sbti-if-my-company-goes-through- changes-that-may-impact-the-target>.
322 SBTi Annual Progress Report 2021, above n 199, at 6.
323 See Anders Bjørn, Joachim Peter Tilsted, Amr Addas and Shannon M Lloyd “Can Science Based Targets Make the Private Sector Paris-Aligned? A Review of the Emerging Evidence” (2022) 8 Current Climate Change Reports 53.
324 Jayme Walenta “The making of the corporate carbon footprint: the politics behind emission scoping” (2021)
14(5) J Cult Econ 533 at 542.
89 per cent had been 40 per cent completed by the time of approval.326 These results suggest that the achievement of targets is positively correlated with a lack of ambition. SBTi guidelines prohibit targets which are achieved prior to submission, however “significant” reductions may be made during target validation.327The criteria for acceptance of a target allows significant variation in ambitions: different baseline years, target years, emissions scopes, metric of measurement and unknown company action prior to the baseline year, it is impossible to compare company action.328 More comparability is required to keep companies accountable and avoid them ‘gaming’ targets to maximise achievement.329
B Process and the SBTi 1 Participation
The SBTi’s “team” is comprised of members from its partner organisations.330 The ExecutiveBoard includes a high-level representative from each donor and partner organisation providing strategic and resourcing input.331 The Executive Leadership Team are responsible for both day- to-day decisions, and the design and implementation of the SBTi’s strategy and technical guidance.332 Volunteer advisors and experts provide their technical and scientific guidance.333 The SBTi has been criticised for having a decision-making body compromised of members from only four NGOs, because this devalues citizen participation.334 Company involvement is dominated by European firms.335 The participating companies in the SBTi are predominantly based in Europe, the USA and Japan, with few represented from the rest of Asia, Africa and South America.336
With respect to consultation, per SBTi, the development of their Net-Zero Standard followed
an inclusive and transparent process, involving input from stakeholders and “close
326 Giesekam and others, above n 190, at 10–11.
330 SBTi “Meet the Team” <https://sciencebasedtargets.org/about-us/the-team>. 331 SBTi “Governance” <https://sciencebasedtargets.org/about-us/governance>. 332 Above n 331.
333 Above n 331.
334 Jonathan Pickering, Karin Bäckstrand and David Schlosberg “Between environmental and ecological democracy: theory and practice at the democracy-environment nexus” (2020) 22(1) J Environ Policy Plan 1 at 7. 335 SBTi Annual Progress Report 2021, above n 199, at 16.
consultation” with experts.337 The SBTi had more than 500 participants attend their public webinars introducing their principles to inform the Net-Zero Standard.338 They received more than 80 written responses, and recorded a number of perspectives, which they published.339 They upheld stances which enhanced the efficacy of the standard (for example, value chain abatement) despite clear opposition from consulted stakeholders.340 They did make some revisions, but this was mostly for clarity.341
2 Transparency
With respect to procedural transparency, the SBTi claims to have a “proven, sophisticated and well-established” process for creating standards and guidance, and that their standardisation guarantees transparency.342 One of SBTI’s credibility-bolstering claims is that target validation ensures transparency and standardisation.343 However, in January 2020, the SBTi estimated that some companies would have to wait up to a year for validation.344 Although this was reduced by 70 per cent in six months,345 the SBTi still includes committed but unvalidated companies in their ‘membership’ numbers.
With respect to outcome transparency, the SBTi states that businesses with science-based targets are cutting more emissions than those without,346 but in that same vein, also found that less than half (46 per cent) of validated-target companies were actually disclosing their progress on all targets.347 Their yearly progress report uses information “provided to the SBTi, public disclosure data, information retrieved from company sustainability reports and websites, and publicly available data on global insights and market capitalisation”.348 As noted above, there is a “gap in reporting practices” which makes it extremely difficult to accurately measure the progress of all companies.349 Of the targets assessed by Giesekam and others, 21 per cent had to be excluded from analysis due to a lack of publicly available information, and many more
337 The Net-Zero Standard, above n 196.
338 SBTI Foundations for Science-based Net-Zero Target Setting in the Corporate Sector (SBTi, Net-Zero Standard, September 2020) at 39 (Annex 1).
342 Amaral, above n 201.
343 Above n 201.
344 Above n 201.
345 Above n 201.
346 Above n 201.
347 SBTi Annual Progress Report 2021, above n 199, at 7.
took “considerable effort” to obtain.350 It cannot be that the 26 per cent of companies who did not report on all targets, and the 28 per cent of companies who reported on no targets, merely forgot to disclose. If companies have made insignificant or negative progress on these targets, which is likely but unknown, this could significantly impair the progress achieved by the companies participating in the SBTi.
3 Accountability
In terms of institutional accountability, the Executive Board is comprised of members from its four partner organisations,351 and only appears to be accountable to its partner organisations. The SBTi is currently being incorporated to be “linked but separate from [their] founding partners”, to be able to work “more efficiently and effectively” and “get more done in less time”,352 but this does not speak to improved process.
The SBTi needs to draw in participating firms. The Net-Zero Standard allegedly ensures that targets are credible and robust through their target validation process. This validation process requires that each company is assigned to a reviewer and approver, each employed by two different partner organisations.353 However, this is not best practice validation, which requires an independent double-blind peer review.354 Validation is done completely internally, and none of the review information, discussions or approval notes are publicly disclosed.355 This internal regulation, in combination with the lack of comparable and available information on target achievement, does not ensure accountability.
There is limited accountability for actors within the initiative. There are no penalties for lack of progress.356 Although the SBTi reserves the right to remove any company from their website and materials,357 there will be no “public announcement or related media productions” if this is deemed necessary.358 Per an SBTi representative, the initiative is about “promoting best
350 SBTi Annual Progress Report 2021, above n 199, at 15.
351 SBTi “Meet the Team”, above n 330.
352 Amaral, above n 201.
353 SBTi Annual Progress Report 2021, above n 199, at 37 (footnote).
354 COPE “Peer review processes” <https://publicationethics.org/peerreview>.
355 Soh Young In and Kim Schumacher “Carbonwashing: ESG Data Greenwashing in a Post-Paris World” in Thomas Heller and Alicia Seiger (ed) Settling Climate Accounts – Navigating the Road to Net Zero (Springer Nature Switzerland AG, Cham Switzerland, 2021) 39 at 48.
356 Giesekam and others, above n 190, at 15.
357 Lea Ottilie Fink “What drives firms to successfully cooperate on climate change? – an institutional analysis
of the Science Based Targets initiative” (MSc Thesis, Humboldt-Universitat Zu Berlin, 2018) at 58.
358 Lucy Hayes “Frequently asked questions about science based targets” (22 July 2020) ecoact <https://eco- act.com/science-based-targets/frequently-asked-questions/>.
practices rather than punishing or shedding a red light on who is not performing well”.359 The SBTi considers that any consequences of failing to meet a target would be reputational.360 However, in the absence of transparent information about this failure, it seems doubtful there will be reputational accountability.The SBTi notes that they are aiming to enable greater scrutiny by hiring a Director of Compliance who will ensure compliance with policies and procedures within the SBTi, establish a formal complaints mechanism and “other governance enhancements”.361 As it stands, this scrutiny has and remains to be absent from SBTi processes. The SBTi is allegedly making efforts to change focus from target-setting to MVR to enhance corporate accountability on progress.362 However, this focus has not yet come to fruition. They keep case studies on companies publicly available,363 which could promote accountability, but these “testimonials” are more focussed on publicising the benefits of participating in the scheme. The SBTi also receives funding from many participating companies in many different sectors like Nike, Target and BMW Group.364 Accountability measures may jeopardise this funding.
C A Lack of Process Compromises Progress
In sum, it would appear that the SBTi has achieved progress by sacrificing process. A notable example would be consulting with participants, but only giving limited consideration to said consultation in order to have a more effective target-setting scheme. Governance from its four founding organisations streamlines process to ensure progress is made “more efficiently and effectively”; more can be done in “less time”.365 The SBTi fills a gap: making progress that would not otherwise be achieved. The main accomplishment of the SBTi is the consolidation and standardisation of efforts. The SBTi Net-Zero Standard was launched to remedy the “deficit of credibility and surplus of confusion over [corporate] emissions reductions and net- zero targets, with different meanings and metrics”.366
It is indisputable that the SBTi is achieving some progress. However, quantifying this progress is difficult. The SBTi has self-identified issues surrounding geographic and sectorial
359 Ottilie Fink, above n 357, at 58.
361 Amaral, above n 201.
362 SBTi Annual Progress Report 2021, above n 199, at 8.
363 SBTi “Case Studies” <https://sciencebasedtargets.org/companies-taking-action/case-studies/p3>.
364 SBTi “Funders” <https://sciencebasedtargets.org/about-us/funders>.
365 Amaral, above n 201.
366 United Nations Global Compact “Caring for Climate 2021 Opening Remarks” YouTube (10 November 2021) <https://www.youtube.com/watch?v=xKupJA8DmwA&ab_channel=UnitedNationsGlobalCompact>.
representation, and transparent disclosure and reporting practices.367 These are flaws characteristic of NGOs, which are often scrutinised for a lack of “transparency, democracy, and accountability”.368 SBTI’s lack of emphasis on MRV has comprised the measurability, credibility and verifiability of progress. Although companies may be ‘on target’, this is subject to the target design (scope and ambition).369 Regulatory compliance, mandated by clear monitoring and validation programmes, is essential for accountability and the legitimacy of targets.370 As stated by the SBTi themselves, they need to, and are now attempting to, shift their focus from target-setting and uptake to MRV. This ‘future-tens’ view of process improvement means that the SBTi has achieved all progress so far in the absence or at the expense of process.There is an observable trade-off between progress and process: participants must be enticed to join voluntary standards. Onerous disclosure and reporting mechanisms in combination with strict non-compliance measures would hardly ‘draw in the punters’. It is suggested that some degree of accountability and transparency is necessary to draw participants into the scheme, so the initiative has sufficient legitimacy to create a reputational benefit.371 I argue that the minimum floor for progress for the SBTi is to have enough progress to gain participants, but not meaningful progress.
The SBTi has a “key agenda-setting role” in setting targets and establishing a methodology.372 However, SBTi fails to make performance legible beyond grand gestures. In the absence of a mandatory reporting component, “the initiative does not represent a substantive tool for achieving greater levels of ambition” as there is no transparency or accountability for a lack of progress.373 The fact of the matter is – in the absence of more process – the progress achieved by the SBTi is illegible. In the case of the SBTi, a lack of process clearly compromises progress.
367 SBTi Annual Progress Report 2021, above n 199, at 31.
368 Rana Lehr-Lehnardt “NGO legitimacy: reassessing democracy, accountability and transparency” (Graduate Student Conference Paper, Cornell Law School Inter-University, 2005) at 1.
369 Giesekam and others, above n 190, at 16.
370 Hanneke van Haeff “Organisational legitimacy as an incentive for companies to set science-based targets and shape a more attractive investor profile – An investors perspective” (Sustainable Business and Innovation Master’s Thesis, Utrecht University, 2021) at 33.
371 van Haeff, above n 370, 39.
372 Giesekam and others, above n 190, at 18.
Chapter IV: The Progress and Process of C40
This chapter analyses the relationship between progress and process in TEL through a case study of C40. This chapter then answers the question posed by this dissertation: can we forsake process for progress?
Within the decade, C40 are striving to halve the emissions of their member cities, whilst promoting sustainable development.374 In making progress, C40 is a “knowledge broker”:375 emphasising sharing research and information to “support and empower cities to transition towards a green and just economy”.376 The general ethos of C40 is that cities act, while states talk.377 C40 claims that “no one can do more to produce good outcomes for the world than we, the mayors of great cities”.378 The claim that global cities produce 70 to 80 per cent of global GHG emissions is leveraged to engage, empower and resource.379
C40 mayors commit to taking urgent climate action by signing accelerator pledges (previously declarations).380 These accelerators drive “high-impact actions” and constitute part of the delivery requirement of membership.381 Accelerators focus on various sectors or categories including transport, energy and buildings, adaption, waste, food, air quality and clean construction.382
C40’s Global Green New Deal (the Deal) establishes the normative foundation of their network and action.383 The Deal launched in 2019 and envisages an economic paradigm shift, backed by action, as the method of achievement of sustainable climate action.384 The C40 encourages
374 C40 “About C40”, above n 212.
375 Lin (2017a), above n 138, at 102.
376 C40 Cities “Research & Knowledge” <https://www.c40.org/what-we-do/raising-climate-ambition/research- and-knowledge/>.
377 Ciara Nugent “Companies Brought Big Promises to COP26. Cities Brought Actions” (12 November 2021) Time <https://time.com/6116779/cop26-cities-climate/>.
378 Michael Bloomberg “Keynote Address at 2011 Sao Paulo C40 Cities Summit” (C40 Cities Workshop, San
Paulo, 1 June 2011) in Gordon, above n 192, at 82.
379 Gordon, above n 192, at 85.
380 C40 Cities “High-Impact Accelerators” <https://www.c40.org/what-we-do/raising-climate-ambition/high- impact-accelerators/>.
381 Sadiq Khan and Mark Watts C40 Annual Report 2021 (C40 Cities, Annual Report, 28 March 2022) at 6.
383 C40 “Statement by the C40 Cities Steering Committee on the organisation’s new Leadership Standards”,
above n 211.
384 C40 Cities “Global Green New Deal” <https://www.c40.org/what-we-do/building-a-movement/global-green- new-deal/>.
movement towards a “downscaled” doughnut economics: the City Portrait model.385 The City Portrait is inspired by “doughnut economics” which advocates for a refocus development to “build healthy, sustainable and resilient urban communities” which “secures lives and livelihoods”.386 To C40, climate change is not merely a threat, but an opportunity: it is highlighted that climate actions will give cities a competitive edge in the market in terms of green growth and future resilience. 387
A Progress and C40
1 Membership compliance
C40 boasts a membership of almost 100 “world-leading” cities.388 These 97 cities constitute more than 1,500 city officials, directly represent 582 million residents or 20 per cent of global GDP, and influence 896 million transient workers or residents or 36 per cent of global GDP.389 There are three tiers of membership of C40: Megacities, Innovators and Observers.390 Both Megacities and Innovators must show exceptional climate leadership at a global level, but Megacities must be projected to have a population of at least three million by 2030.391 Observer cities are those which are eligible for either but require further approval due to local regulatory reasons.392 All members are subject to the Leadership Standards.393
C40 aims to minimise compliance issues through selective membership criteria.394 Perversely, C40’s performance-based membership does not result in complete compliance. The first requirement of the C40 Leadership Standards is that each member city has a regularly updated Climate Action Plan consistent with 1.5°C-ambition.395 However, per the C40 2021 report, only 61 of the 97 member cities (62.8 per cent) actually have the prescribed Climate Action Plans.396 C40 states that “a significant majority” of C40 cities had Climate Action Plans, and
385 C40 Knowledge Hub “Creating City Portraits: A methodological guide from the Thriving Cities Initiative”
<https://www.c40knowledgehub.org/s/article/Creating-City-Portraits-A-methodological-guide-from-the- Thriving-Cities-Initiative?language=en_US>.
386 See C40 Knowledge Hub “Creating City Portraits”, above n 385; and Kate Raworth Doughnut economics: seven ways to think like a 21st-century economist (Green Publishing, Chelsea, 2017).
387 Milja Heikkinen, Tuomas Ylä-Anttila and Sirkku Juhola “Incremental, reformistic or transformational: what kind of change do C40 cities advocate to deal with climate change?” (2019) 21(1) J Environ Pol Plan 90 at 98. 388 C40 “About C40”, above n 212.
389 C40 Annual Report 2021, above n 381, at 5.
390 C40 Cities “C40 Cities Membership” (23 September 2022) <https://www.c40.org/wp- content/uploads/2022/04/C40-Cities-Membership_23-Sept-2022.pdf >.
391 Above n 390.
392 Above n 390.
393 Above n 390.
394 Lin (2017a), above n 138, at 106.
395 C40 Annual Report 2021, above n 381, at 9.
were able to conclude these in “record time” due to resourcing facilitating by the C40 network.397 However, even a “significant majority” or 62.8 per cent of Climate Action Plan adopters reveals 37.2 per cent non-compliance with the first requirement of membership by members.398 They then quantify and measure delivery on these plans, the second requirement, through “high-impact action” monitoring.399 Compliance or achievement with the remaining three membership requirements is not quantified.400One quantifiable goal of C40 was Deadline 2020, which sought to have cities take transformational changes before 2020, which would be necessary to meet the level of ambition in the Paris Agreement.401 Deadline 2020 called for massive emission cuts, massive investment, and for wealthy cities to peak their carbon emissions before 2020.402 Thirty member cities managed to peak their emissions.403 The remaining cities were found to have made “concrete commitments” to meet the goal,404 but had ultimately failed.
2 Measurable changes from behaviour
C40 claims that cities are able to be more responsive than national governments.405 They attribute successful behavioural change to their collaborative peer-to-peer learning model.406 “City-to-city sharing” is the foundation of the C40 model: allowing best practice to be modelled and then “rapidly replicated” on a global basis.407 This interactive norm diffusion promotes action through “positive peer pressure” which allows cities to “leapfrog their peers” in scaling up ambition.408 C40 reported more than 600 interactions by member cities in 2021 with C40 resources, including webinars, workshops and city-to-city pairings.409 C40 consider that their Knowledge Hub resources climate action through the provision of reliable information and
397 C40 Annual Report 2021, above n 381, at 9.
401 C40 Knowledge Hub “Deadline 2020: How cities will get the job done” (November 2016)
<https://www.c40knowledgehub.org/s/article/Deadline-2020-How-cities-will-get-the-job- done?language=en_US#:~:text=Deadline%202020%20is%20the%20first,findings%20are%20more%20broadly
%20applicable>.
402 Above n 402.
403 C40 Cities “30 of the world’s largest and most influential cities have peaked greenhouse gas emissions” (8 October 2019) <https://www.c40.org/news/30-of-the-world-s-largest-most-influential-cities-have-peaked- greenhouse-gas-emissions/?gclid=Cj0KCQjwjvaYBhDlARIsAO8PkE2riePGf1E1gYPLlyHfh8Gz4zv-Us6g- A2MTooS-3z-SeIFg556-wEaAoQBEALw_wcB>.
404 Above n 404.
405 Austin Mayor Steve Adler in Nugent, above n 377.
406 C40 “About C40”, above n 212.
407 C40 Annual Report 2021, above n 381, at 4.
guidance,410 and promotes norm diffusion beyond immediate C40 membership. Per their consultation, 87 per cent of Knowledge Hub articles are positively rated, and 85 per cent of cities and 85 per cent of cities “reported [being] able to act after visiting”.411 This claim is not further substantiated.According to C40’s Accelerator Reports, member cities have delivered more than 270 ambitious actions, with over 900 to be completed by 230.412 In 2021, C40 stated that their member cities achieved 68 new “high-impact climate actions” across eight sectors, bring the total high-impact actions made by the scheme to 871 actions.413 “High-impact actions” are those which fall within the high-impact accelerator sectors.414 C40 cites examples of these 2021 high-impact actions, one being “city-wide speed restrictions to increase road safety”.415 C40 claims that their initiative results in incremental cross-sectoral change. For example, 50 cities have made “high-impact” climate actions in the Air Quality Accelerator category.416 Due to this, they state that C40 saw a 5 per cent improvement in μg/m3 PM2.5 levels (airborne particles generated from burning fossil fuels) in 2021 compared with 2020.417
These kinds of discrete actions are difficult to measure; equating regulatory traffic speed-limits with other unrelated actions does not provide insight into the efficacy of the scheme in influencing climate action. Empirical research has found that C40 membership has a statistically significant effect on the number of actions taken.418 Even after “controlling for city population size, regional GDP, the left-right political placement of local and national governing parties, and the quantified prioritization of sustainability and environmental issues of the local and national governing parties”, member cities took six times as many actions as non-member cities.419 Some cities’ actions are truly impressive: Oslo’s climate budget forces local legislators to prove spending is consistent with emission targets, which has put Oslo on track to halve their emissions by 2022 compared with 1990 levels.420 However, examining non-
410 C40 Annual Report 2021, above n 381, at 5.
412 C40 Cities “Accelerator Reports” <https://www.c40.org/what-we-do/raising-climate-ambition/accelerator- reports/>.
413 C40 Annual Report 2021, above n 381, at 6. 414 C40 “High-Impact Accelerators”, above n 380. 415 C40 Annual Report 2021, above n 381, at 9.
418 Bridget Killian “Does More Mean Better? the Effectiveness of City Networks on Emissions Reduction Activity” (MA Thesis, The University of North Carolina, 2021) at iii.
420 Nugent, above n 377.
linear, discrete indicators of change “do[es] not lend [itself] to prospective analysis”.421 Additionally, Gordon and Johnson allude to, but do not conclude on, the possibility that C40 membership might not be the cause of these actions.422 This is due to the fact that the targets and climate actions proposed in the cities studied were very similar, despite wildly different levels of economic development, infrastructure, and citizen well-being.423Many have noted that C40 action goes beyond greenwashing,424 and that C40 has stimulated a “demonstrable increase” in the extent and number of efforts.425 However, there is a need for more focus on “specific, identifiable emissions reductions”.426 Actions are so disparate and diverse that they are incredibly difficult to measure, compare, and track, compared with something like emissions reductions. The C40 was a partner in the creation of the Global Greenhouse Gas Protocol for Cities (GPC) which enables emissions reporting and is utilised by its member cities.427 However, collective and individual emissions reduction tracking is not C40’s core focus.
3 Ecologically effective ambition
C40 adopts the ambition of Paris Agreement, and states that in all cases transformational change is necessary.428 Empirical findings suggest that C40 currently supports incremental change, but rarely anything transformational that will influence the status quo.429 C40 claim that their membership requirement mandating “1.5C-aligned city action plans to protect residents, create jobs, address inequalities, and tackle the global climate crisis” represents an ambition unmatched by any other grouping.430 It has been observed that C40’s reframing of the climate problem from pure emissions reductions to a mission for sustainable development enables higher ambition, through sidestepping the contentious issues obstructing the UNFCCC
421 David Gordon and Craig Johnson “City-networks, global climate governance, and the road to 1.5°C” (2018) 30 Curr Opin Environ Sustain 35 at 37.
422 Kathryn Davidson, Lars Coenen and Brendan Gleeson “A decade of C40: Research insights and agendas for city networks” (2019) 10(4) Global Policy 697 at 699.
423 Gordon and Johnson, above n 421, at 36.
424 C40 Cities Research Centre “Monitoring, evaluation and reporting”
<https://resourcecentre.c40.org/resources/monitoring-evaluation-and-reporting>.
425 Gordon and Johnson, above n 421, at 36.
427 Gordon and Johnson, above n 421, at 36; and Greenhouse Gas Protocol The GHG Protocol for Cities (GHG Protocol, Version 1.1, January 2021).
428 C40 Cities “1.5°C Climate Action Plans” <https://www.c40.org/what-we-do/raising-climate-ambition/1-5c- climate-action-plans/>.
429 Heikkinen, Ylä-Anttila and Juhola, above n 387, at 98.
430 C40 Annual Report 2021, above n 381, at 9.
regime.431 Conversely, it has also been argued that the current target-setting practices of C40 are unconnected to realistic delivery, and are based more in vanity than transformation.432
B Process and C40 1 Participation
C40 has made an attempt to appear to allow equitable participation from different groups. C40 was born as C20 in 2005 from 18 megacities, becoming C40 after a further 22 mayors were invited.433 Per C40, these invitations aimed to engage with more cities in the global South.434 Most member cities have also signed an Equity Pledge which aims to mitigate the inequitableness characterising most collective action.435 The C40 claims to be committed to being diverse and inclusive: they have established a Diversity, Inclusion and Anti-Racism Board to oversee delivery of their Equity, Diversity and Inclusion strategy.436 However, the membership requirements of the C40 do restrict participation to large industrialised cities or those with the economic capacity to engage in long-term climate planning.437 Despite efforts, C40 has been criticised for perpetuating an enduring North / South divide.438C40 is embedded in, and therefore cannot help perpetuating, a system of structural inequality.439 The C40 City Climate Leadership Group Inc, C40’s main operating entity, is incorporated in Delaware as a non-stock, not-for-profit corporation.440 C40 is governed by an elected Steering Committee of mayors, and the Board of Directors also provides operational oversight.441 The President of the Board, appointed by the Chair, is Michael Bloomberg (former Mayor of New York City).442 C40 has been criticised for “unevenness”:443 despite
431 Lin (2017a), above n 138, at 148.
432 Håvard Haarstad “Do Climate Targets Matter? The Accountability of Target-setting in Urban Climate and Energy Policy” in Siddharth Sareen (ed) Enabling Sustainable Energy Transitions (Palgrave Pivot, Cham, 2020) 63 at 64.
433 C40 “About C40”, above n 212.
434 Above n 212.
435 C40 Cities “Equity Pledge” <https://www.c40.org/accelerators/equity-pledge/>.
436 C40 Annual Report 2021, above n 381, at 14.
437 Gordon and Johnson, above n 421, at 38.
438 Sofie Bouteligier “Inequality in new global governance arrangements: the North-South divide in transnational municipal networks” (2013) 26(3) Eur J Soc Sci 251 at 263.
439 See David Wachsmuth, Daniel Aldana Cohen and Hillary Angelo “Expand the frontiers of urban
sustainability” (2016) 536 Nature 391.
440 C40 Annual Report 2021, above n 381, at 14.
443 See Michele Acuto “The new climate leaders?” (2013) 39 RIS 835.
appearing horizontal, there is a central governing clique (London, New York City and several others) who exclude more peripheral members.444C40 purports to prioritise consultation with both members and member city constituents. C40 has “internal channels” for staff to communicate with the board through working groups and also has a Staff Consultation Forum with regional local representatives.445 For example, when formulating Deadline 2020, they engaged with the community to create the plan, to outline environmental, social, and economic benefits from implementation, and to ensure equitably distributed benefits.446 They also “welcome[d]” suggests for improvement after the implementation of the plan, “inviting all partners to read and review” and provide input.447 More generally, they strongly prioritise accessible information and resourcing for cities from cities on their C40 Knowledge Hub.448
2 Transparency
C40’s outcome transparency is operationalised by data disclosure. A core mantra of C40 is “[i]f you can’t measure it, you can’t manage it and you can’t fix it”.449 C40 membership requires transparent disclosure of emissions and governance actions: commitment to the scheme “must be matched by an equal willingness to be judged by our progress”.450 They claim to provide more transparency than any other political grouping focussing on climate action.451 C40 claim that the GPC provides a “robust framework for accounting and reporting city-wide emissions”.452 Per C40, member cities first report their data through City Inventory Reporting and Information System, which enables transparent calculation and reporting of sectorial emissions.453 This can then be uploaded to the public reporting platform CDP Cities.454 The
444 Bouteligier, above n 438, at 263.
445 C40 Annual Report 2021, above n 381, at 14.
446 Bouteligier, above n 438, at 263.
447 C40 Cities and Arup Deadline 2020 (C40 Cities, November 2016) at 14.
448 C40 Knowledge Hub “Climate Action Planning”
<https://www.c40knowledgehub.org/s/topic/0TO1Q0000001lR9WAI/climate-action- planning?language=en_US>.
449 C40 Cities “How data is empowering city climate action” (30 August 2017)
<https://www.c40.org/news/how-data-is-empowering-city-climate-action/>.
450 Michael Bloomberg “Keynote Address at 2010 Hong Kong C40 Cities Workshop” (C40 Cities Workshop,
Hong Kong, 5 November 2010) in Gordon, above n 192, at 85.
451 C40 Annual Report 2021, above n 381, at 9.
454 C40 Cities Resource Centre “Reporting GHG emissions inventories”
<https://resourcecentre.c40.org/resources/reporting-ghg-emissions-inventories>.
GPC reports are publicly available,455 which enables comparison of emissions across cities on a sectoral basis.456 Problems arise with verification. “[U]sers may choose” to verify their GHG inventory through the GPC inventory self-verification toolkit.457 Consequently, unless member cities choose, there is no assurance to users that their ‘transparent’ GHG inventory “represents a faithful, true, and fair account” of emissions.458 Although the GPC consolidates information, it has been criticised for a “disconnect” between the measured emissions and actual emissions.459 Hughes and Tozer claim that the GPC relies on “downscaling” of data from sectors like energy consumption and transportation, which leads to uncertain accuracy and relevance.460C40 has been criticised for their focus on specific data. Data-driven decision making is increasingly emphasised in environmental action,461 fuelled by markets and monetisation.462 Hypothetically, online platforms and data collection techniques increase transparency and visibility of action.463 However, transparency around outcome data is often curated. Cities can be incentivised to focus on specific nominal targets regardless of whether they actually represent actions taken.464 Data can be interpreted and measured in a non-objective way: the production of data and the use of certain datasets over others can skew appearances.465
In terms of procedural transparency, C40 does attempt to deliver. They have transparent governance arrangements, which have already been established above. When implementing decisions such as Deadline 2020 or the GPC, they “took pains to be as transparent in their deliberations and decision-making processes as possible”, and consulted with member and non- member cities.466 C40 claim to prioritise detailing the governance structure and capacity of each of their member cities, and prioritise identifying who needs to be engaged to “accelerate”
455 C40 Knowledge Hub “Greenhouse gas emissions interactive dashboard” (September 2022)
<https://www.c40knowledgehub.org/s/article/C40-cities-greenhouse-gas-emissions-interactive- dashboard?language=en_US>.
456 C40 Knowledge Hub “Exploring the benefits of consistent and comparable city-wide greenhouse gas emission inventories” (October 2018) <https://www.c40knowledgehub.org/s/article/Exploring-the-benefits-of- consistent-and-comparable-city-wide-greenhouse-gas-emission-inventories?language=en_US>.
457 C40 Resource Centre “Reviewing GHG emissions inventories”
<https://resourcecentre.c40.org/resources/reviewing-ghg-emissions-inventories>.
458 Above n 457.
459 Gordon and Johnson, above n 421, at 36.
461 Sara Hughes, Sarah Giest and Laura Tozer “Accountability and data-driven urban climate governance”
(2020) 10 Nat Clim Change 1085 at 1085.
462 See Arthur Mol “The Future of Transparency: Power, Pitfalls and Promises” (2010) 10(3) GEP 132.
463 Hughes, Giest and Tozer, above n 461, at 1086.
466 Lin (2017a), above n 138, at 165.
delivery of goals.467 They claim to publicly identify all initiatives undertaken, and set “clear, quantifiable benchmarks” and regularly assess these.468 It is disputed that the global aspect of C40 creates tensions in terms of transparency: rather than prioritising clear disclosure on climate action to constituencies, member cities are focussed on demonstrating their investment potential.469
3 Accountability
With respect to organisational accountability, C40 has been “at the forefront” of the global city accountability movement for climate action,470 and have designed their own extensive accountability forums.471 Member cities have domestic accountability to both citizens and upper levels of government.472 Local government accountability is driven by democratic processes and public participation.473 However, through C40, cities “seek to be globally accountable” for climate actions outside this formal institutional capacity.474 This global accountability is measured through measurement, reporting and disclosure.475 Through disclosure and progress reporting, C40 cities attempt to hold themselves accountable for taking “real measurable action”.476 They operationalise accountability as ensuring “performance [is] legible” for target audiences.477 However, it is disputed that the manner in which performance is accounted for is depoliticising,478 and that the definition of objectives creates accountability gaps.479
On the surface, C40 appears to be “a more rigorous form” of climate governance.480 However, it is disputed that growing numbers of accountability systems does not necessary result in more progress in climate change mitigation.481 Focus must be had on the processes which select the
467 C40 Cities “1.5°C Climate Action Plans”, above n 428.
468 Michael Bloomberg “Keynote Address at 2010 Hong Kong C40 Cities Workshop” (C40 Cities Workshop,
Hong Kong, 5 November 2010) in Gordon, above n 192, at 85.
469 Hughes, Giest and Tozer, above n 461, at 1088.
470 Gordon, above n 192, at 84.
471 Hughes, Giest and Tozer, above n 461, at 1089.
472 Gordon, above n 192, at 84.
473 Hughes, Giest and Tozer, above n 461, at 1085.
474 Gordon, above n 192, at 84.
476 CDP “Wealthier, Healthier Cities Emerge from Climate Change Initiatives Finds New CDP Report” (press
release, 24 June 2013).
477 Gordon, above n 192, at 92.
479 Robert Keohane “Global governance and democratic accountability” (Miliband Lectures, London School of
Economics, London, delivered 2002, published 2013) at 14.
480 Gordon, above n 192, at 82.
481 See Adil Najam and Mark Halle “Global Environmental Governance: The Challenge of Accountability” (2010) 5 Sustainable Development Insights 1.
“good outcomes” that cities purport to chase, and how they can plan to achieve them.482 There is a tension between the accountability gestures of C40, and actual accountability for achieving progress.483 Cities aim to achieve high-impact actions, which are thematically organised to promote the legibility of cumulate efforts. This represents “a means of counting without being accountable”.484 C40 tends to “align public accountability imperatives with narrow objectives informed by private interests”.485 Consequently, the standardisation, disclosure and transparency ensure “symbolic” rather than actual accountability.486 This has been dubbed a “crisis of accountability”: allowing capitalisation on climate action rhetoric without action.487With respect to the accountability of member cities for their action, there is a lack of holding to account over a lack of delivery on obligations. There is only 67.8 per cent compliance with the first membership requirement,488 which is not insignificant. Fulfilling the other four membership requirements is contingent upon fulfilling the first planning requirement. Without these plans, cities cannot be held accountable to claims, because they have not made any. In 2021, with respect to delivery on plans, Cities “thorough[ly]” reported their progress on their accelerator pledges.489 This report focussed on the five longest-running C40 accelerators and documented the “impactful actions” cities commit to and accomplish.490 Member cities were also “encouraged” to report on Equity Pledge commitments through this process.491 There are three cities listed as inactive due to failure to comply with the C40 Leadership Standards for at least 12 consecutive months: Moscow, Santiago and Yokohama.492 Where members “persistently fail to comply”, their membership will be reviewed and revoked “as appropriate”.493 This alleged threat of revocation of membership has never publicly been enforced. C40 perceives that withdrawing membership from under-performing cities is
482 Gordon, above n 192, at 83.
487 Haarstad, above n 192, at 63.
488 C40 Annual Report 2021, above n 381, at 5.
489 C40 “High-Impact Accelerators”, above n 380. 490 C40 Cities “Accelerator Reports”, above n 412. 491 C40 “High-Impact Accelerators”, above n 380. 492 C40 “C40 Cities Membership”, above n 390.
493 Above n 390.
“serious and drastic”,494 and has previously identified their tact as informal engagement to motivate improvement.495 Lenient enforcement can limit successful action.496
C Investment-driven Process Compromises Progress
C40 purport to have the most ambitious progress and process out of any political grouping. This is certainty the message promoted by their marketing. C40 publicly take accountability for the massive portion of emissions produced by cities, and use this claim to legitimise their action. C40 has pages upon pages of accountability and transparency enriching resourcing. They champion their Equity Pledge and their efforts to engage meaningfully with both member cities and constituents. They appear to put a significant amount of energy into achieving both process and progress.
However, it is significantly more difficult to measure and quantify C40’s progress nominally than that achieved by SBTi. This seems at odds with the immense energy put into advertising their process. C40 is achieving progress, quantifiable through their core ‘high-impact action’ metric and through the emissions tracking schemes they have had a role in establishing. This progress is partly driven by the reflexivity of cities, and the relative ease with which they can implement policy compared with states.
However, by design, C40’s process mechanisms purporting to enhance transparency and accountability do not enable clear assessment of member progress which is measurable, comparable or representative of action. This is because C40’s goal in pursuing process is not progress, but performance legibility for optics purposes. This illustrates a trade-off between quality process and measurable progress.
C40’s leadership and influence has been lauded, and they do seemingly put an emphasis on transparency, equity and participation. However, increased process does not necessarily create more progress, if that process is not effective.497 C40 has ample process – enough to make performance legible but not clear. C40’s progress is “a means of counting without being accountable”.498 The C40’s process is process-for-processes-sake, or more accurately, process- for-investments-sake. They use the claim of ‘performance-based’ membership to bolster
494 Interview with Manager of C40 (Jolene Lin, Skype, 30 June 2016) cited in Lin (2017a), above n 138, at 113.
495 Lin (2017a), above n 138, at 113.
496 See Jeroen van der Heijden Governance for urban sustainability and resilience responding to climate change and the relevance of the built environment (Edward Elgar, Cheltenham, 2014).
497 See Najam and Halle, above at 481.
498 Gordon, above n 192, at 94.
legitimacy, however, C40’s target audience is not the global public or constituents, but investors in their development programmes.The achievement of ‘high-impact actions’ gives C40 the appearance of achieving ‘high-impact progress’. Progress is all in the definition: “high-impact actions” are so disparate and diverse that they are incredibly difficult to measure, compare and track. C40’s ‘high-impact action’ focus allows member cities to shoe-horn a number of different policy changes into climate action. Rather than enhancing accountability, it shifts the focus of accountability. Process is used by C40 as a means of securing recognition: “accountability is not always about being accountable, but as a means of securing authority and legitimacy”.499
Per C40, their process maximises “bang for buck”.500 Through C40, member cities pursue recognition for both public and private purposes:501 publicly they seek engagement, empowerment and resourcing,502 whilst privately they seek to augment their investment value through trustworthiness.503 This is not in itself an issue: actors will always be economically motivated by some degree. TEL is largely motivated by market forces.504 C40 “may be contesting the who of global climate governance” but they “remain firmly embedded in reproducing the prioritisation of economic over environmental objectives”.505 However, is the world in any position to be picky? Does it truly matter if process is motivated by money, rather than environmental progress? The issue arises when process is only concerned with demonstrating investability and curates ‘progress’ accordingly – such that the achievement of and measurability of progress are compromised. It is contended that C40 process inhibits progress through the prioritisation of narrow metrics.506 Dually, it is contended that the design of C40’s process measures legitimise actions, without holding member cities or C40’s institutions to account.
499 Gordon, above n 192, 94.
500 Climate Action “C40 Cities & Siemens to collaborate on sustainability” (19 April 2013)
<https://www.climateaction.org/news/c40_cities_siemens_to_collaboration_on_sustainability>.
501 Gordon, above n 192, at 90.
502 Matthew Hoffmann Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, Oxford, 2011).at 93.
503 Gordon, above n 192, at 90.
504 Shaffer and Bodansky, above n 8, at 35.
505 Gordon, above n 192, at 91.
506 Ron Kluvers and John Tippett “Mechanisms of accountability in local government: an exploratory study”
(2010) 5 Int J Bus Manag 46 at 48–49.
D Can We Forsake Process For Progress?
This dissertation has evaluated the relationship between progress and process for two pre- eminent examples of TEL: the SBTi and C40. Finally, this dissertation answers the question: can we forsake process for progress? Following close analysis of the SBTi and C40, this dissertation contends that there is a minimum floor for process required to achieve measurable progress.
“Anything worth doing is worth doing badly",507 is a well-worn cliché – but does this always hold true? Both the C40 and the SBTi appear to be achieving something. Is it better to have imperfect action than inaction? Arguably, enabling pursuit of ‘progress’ without processes legitimising and verifying progress made could undermine the incentive of non-state actors to act meaningfully. Alternative transnational climate action could also reduce state incentives to act,508 which is concerning if transnational climate action could be of poor quality. As well as eroding the power held by state actors,509 there are concerns that action by transnational actors may allow and excuse state non-action.510
Despite these criticisms, I contend that we are past the point of climate action perfectionism. Earth is truly in dire straits. Some think that the “groundswell” of TEL will compel action by states by increasing the pressure on negotiators.511 It is important to note that it is unlikely that TEL will unilaterally solve climate change. Transnational law is not a replacement, but a “placeholder”.512 If transnational climate ambition raises global ambitions even slightly, then it has value. In the absence of dramatic action, we are headed for climate catastrophe. Chapter I established that traditional environmental law has largely failed to stimulate the action we need. TEL emerges in the gaps where traditional governance has failed.513 When considering the process / progress trade-offs in transnational law, it must be noted that “all environmental governance tools... are highly imperfect”. 514 TEL must be considered in the context of “two imperfect institutional alternatives”: multilateralism is hardly a paragon of perfect process.515 Despite procedural trade-offs, climate change “demand[s] procedural innovations”.516 Relying
507 Originated in Gilbert K Chesterton What’s wrong with the world? (Cassell, London, 1910).
508 Streck (2020), above n 221, at 27.
509 Streck (2021), above n 140, at 500.
510 Streck (2020), above n 221, at 27.
511 Chan, Brandi and Bauer, above n 166, at 241.
512 Streck (2020), above n 221, at 28.
513 Dingwerth and Green, above n 133, at 156.
514 Shaffer and Bodansky, above n 8, at 38.
on multilateralism alone will result in climate action “too little too late” to prevent dangerousanthropogenic climate change.517
To caveat this, analysis of the SBTi and C40 has illustrated that measurable progress requires some process. As so often proclaimed by C40: “[i]f you can’t measure it, you can’t manage it, and you can’t fix it”.518 “Done right”, TEL can “provide an energy boost to the ‘ossified’ climate regime”.519 Conversely, when not done right, progress is untrustworthy. We need progress, and we are not in the position to be picky. However, there is a minimum floor for process – we need the process that allows us to measure and track progress to the extent that we know: (1) what actors intend to achieve; and (2) what actors are achieving in measurable, quantifiable terms. Without this minimum floor for process, we forsake progress.
517 Shaffer and Bodansky, above n 8, at 38.
518 C40 “How data is empowering city climate action”, above n 449.
519 Streck (2021), above n 140, at 496.
Conclusion
In our obscurity – in all this vastness – there is no hint that help will come from elsewhere to save us from ourselves. The Earth is the only world known so far to harbor life. There is nowhere else, at least in the near future, to which our species could migrate. Visit, yes. Settle, not yet. Like it or not, for the moment the Earth is where we make our stand.
Carl Sagan A Vision of the Human Future in Space: Pale Blue Dot (Random House, New York City,
1994) at 6.
Sea ice is melting, oceans are acidifying, extreme weather events are increasing in frequency and species extinction is causing a global biodiversity crisis. Climate change has already adversely affected Earth and its inhabitants. The situation only stands to worsen without massive reductions in global GHG emissions. States have dallied: the UNFCCC has not prompted collective action of the scale required and seems unlikely to do so. The world desperately needs progress in climate action, and TEL claims to be able to deliver this.
This dissertation sought to answer whether, through TEL, we could forsake process in order to achieve progress. First, it provided an evaluation of multilateralism’s failure to drive effective progress through the UNFCCC regime. Second, it defined TEL, and identified two pre-eminent examples of TEL operating in the climate change space: the SBTi and C40. Third, it sought to illustrate the theoretical stance on the relationship between progress and process in TEL. Theory was distilled to the position that TEL’s promise of progress is accompanied by process failings. This dissertation then questioned whether we could forsake process, or whether trading-off process compromised progress. Fourth, this dissertation investigated the relationship between progress and process in the context of evaluating SBTi and C40.
This dissertation concludes that TEL cannot forsake process entirely to achieve progress. Irrespective of our desperate need for progress, there is a minimum floor for process required to drive effective progress. Both the SBTi and C40 had process failings that obscured measurable progress. TEL must not be discarded: these schemes exist and promise progress that would not otherwise be achieved. We ought to capitalise on the existence of these schemes: any action should be encouraged. However, scrutiny is needed from academia, the media and the public. TEL, and the governance schemes producing it, ought to be spotlighted to motivate effective and credible processes. If they are unable to properly hold themselves to account, an intensified public gaze may be needed to assist them.
Bibliography
A Treaties, Protocols and Agreements
Kyoto Protocol 2303 UNTS 162 (opened for signature 11 December 1997, entered into force
16 February 2005).
Montreal Protocol 1522 UNTS 3 (open for signature 16 September 1987, entered into force 1
January 1989).
Paris Agreement 3156 UNTS (open for signature 22 April 2016, entered into force 4 November
2016).
United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for
signature 4 June 1992, entered into force 21 March 1994).
Vienna Convention for the Protection of the Ozone Layer 1513 UNTC 293 (open for signature 22 September 1985, entered into force 22 September 1988).
Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened for signature 23 May
1969, entered into force 27 January 1980).
B United Nations’ Decisions
UNFCCC Adoption of the Paris Agreement Decision 1/CP 21 (Document FCCC/CP/2015/10, Add 1, 29 January 2016).
UNFCCC Bali Action Plan Decision 1/CP 13 (Document FCCC/CP/2007/6/Add 1, 14 March 2008).UNFCCC Copenhagen Accord Decision 2/CP 15 (Document FCCC/CP/2009/11/Add 1, 30 March 2009).
UNFCCC Doha Amendment Decision 1/CMP 8 (Document FCCC/KP/CMP/13/Add 1, 8 December 2021).
UNFCCC Outcome of the work of the Ad Hoc Working Group on Long-term Cooperate Action under the Convention Decision 1/CP 15 (Document FCCC/CP/2009/11/Add 1, 30 March 2010).
UNFCCC Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action Decision 1/CP 17 (Document FCCC/CP/2011/9/Add 1, 15 March 2012).
C Transnational Standards
C40 Cities and Arup Deadline 2020 (C40 Cities, November 2016).
C40 Cities “C40 Cities Membership” (23 September 2022) <https://www.c40.org/wp- content/uploads/2022/04/C40-Cities-Membership_23-Sept-2022.pdf>.
Greenhouse Gas Protocol The GHG Protocol for Cities (GHG Protocol, Version 1.1, January 2021).
SBTi SBTI Corporate Net-Zero Standard (SBTi, Version 1.0, October 2021).
SBTi SBTI Corporate Net-Zero Standard Criteria (SBTi, Version 1.0, October 2021).
D Reports and Other Materials
Ad Hoc Working Group on the Durban Platform for Enhanced Action Draft agreement and draft decision on workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action (Document ADP 2015 11 Informal Note, 6 November 2015).
Ad Hoc Working Group on the Durban Platform for Enhanced Action Intended nationally determined contributions of Parties in the context of the 2015 agreement (Document ADP 2014 7 Draft Text, 7 July 2014).
Ad Hoc Working Group on the Durban Platform for Enhanced Action Parties' views and proposals on the elements for a draft negotiating text (Document ADP 2014 6 NonPaper, 7 July 2014).
Ad Hoc Working Group on the Durban Platform for Enhanced Action Reflections on progress made at the fourth part of the second session. Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), Note by the Co-Chairs (Document ADP 2014 3 Informal Note, 17 April 2014).
Ad Hoc Working Group on the Durban Platform for Enhanced Action Reflections on progress made at the fifth part of the second session of the ADP. Note by the Co-Chairs (Document ADP 2014 5 Informal Note, 7 July 2014).
Canada Canada: Withdrawal - Kyoto Protocol to the United Nations Framework Convention on Climate Change (Depositary notification CN 796 2011 TREATIES-1, 16 December 2011).
Intergovernmental Panel on Climate Change Summary for Policymakers: Global Warming of 1.5°C (IPCC, Incheon, 2018).
Intergovernmental Panel on Climate Change Summary for Policymakers: Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC, Cambridge University Press, 2022).
Sadiq Khan and Mark Watts C40 Annual Report 2021 (C40 Cities, Annual Report, 28 March
2022).
SBTi Science-Based Net-Zero: Science Based Targets Initiative Annual Progress Report, 2021
(SBTi, Annual Progress Report, June 2022).
SBTI Foundations for Science-based Net-Zero Target Setting in the Corporate Sector (SBTi,
Foundations For Net-Zero Standard, September 2020).
UNFCCC Report of the Conference of the Parties in its eighth session, held at New Delhi from 23 October to 1 November 2002. Part One: Proceedings (Document FCCC/CP/2002/7, 28
March 2003).
UNFCCC Report of the Conference of the Parties in its fourteenth session, held at Poznan from 1 to 12 December 2008. Part One: Proceedings (Document FCCC/CP/2008/7, 19 March
2009).
UNFCCC Report of the Conference of the Parties on its fifth session, held at Bonn from 25 October to 5 November 1999. Part One: Proceedings (Document FCCC/CP/1999/6, 21 December 1999).
UNFCCC Report of the Conference of the Parties on its fourth session, held at Buenos Aires from 2 to 14 November 1988. Part One: Proceedings (Document FCCC/CP/1998/16, 20
January 1999).
UNFCCC Report of the Conference of the Parties on its seventeenth session, held in Durban from 28 November to 11 December 2011. Part Two: Action taken by the Conference of the Parties at its seventeenth session (Document FCCC/CP/2011/9/Add 1, 15 March 2012).
UNFCCC Report of the Conference of the Parties on its sixth session, held at The Hague from 13 to 25 November 2000. Part One: Proceedings (Document FCCC/CP/2000/5, 4 April 2001).
UNFCCC Report of the Conference of the Parties on its third session, held at Kyoto, from 1 to 11 December 1997, Part One: Proceedings (Document FCCC/CP/1997/7, 6 March 1998).
UNFCCC Report of the Conference of the Parties on its twenty-sixth session, held in Glasgow from 31 October to 13 November 2021. Part one: Proceedings (Document FCCC/CP/2021/12).
UNFCCC Report on the Conference of the Parties on its seventh session, held at Marrakech from 29 October to 10 November 2001. Part One: Proceedings (Document FCCC/CP/2001/13, 21 January 2002).
UNFCCC Synthesis Report on the Aggregate Effect of the Intended Nationally Determined Contributions (Document FCCC CP/2015/7, 30 October 2015).
E Letters
Letter from A V Frolov (National Climate Change Coordinator for the Russian Federation) to Ms C Figueres (Executive Secretary of the UNFCCC) regarding COP-16 of the UNFCCC (8 December 2010).
Letter from Mutsuo Sakaba (Ambassador for COP-16 of the UNFCCC for Japan) to Ms C Figueres (Executive Secretary of the UNFCCC) regarding COP-16 of the UNFCCC (10 December 2010).
Letter from Rajani Ranjan Rashmi (Joint Secretary of the Ministry of Environment & Forests for the Government of India) to Mr Yvo de Boer (Executive Secretary of the UNFCCC) regarding the Copenhagen Accord, 8 March 2010).
Letter from Su Wei (Chief Negotiator and Director-General of the Department of Climate Change for China) to Mr Yvo de Boer (Executive Secretary of the UNFCCC) regarding the Copenhagen Accord, 1 February 2010).
F Press Releases
CDP “Wealthier, Healthier Cities Emerge from Climate Change Initiatives Finds New CDP
Report” (press release, 24 June 2013).
G Speeches and Lectures
Philip Jessup “Transnational Law” (Storrs Lectures on Jurisprudence, Yale Law School, New
Haven, 1956).
Robert Keohane “Global governance and democratic accountability” (Miliband Lectures,
London School of Economics, London, delivered 2002, published 2013).
Rt Hon Geoffrey Palmer “General Debate Statement of New Zealand Government” (United Nations General Assembly, UN Headquarters, New York, 2 October 1989).
H Journal Articles
Kenneth Abbott “Strengthening the transnational regime complex for climate change” (2014)
3(1) TEL 57.
Michele Acuto “The new climate leaders?” (2013) 39 RIS 835.
Michele Acuto “Give cities a seat at the top table” (2016) 537 Nature 611.
Inger Andersen, Naoko Ishii, Thomas Brooks, Cynthia Cummis, Gustavo Fonseca, Astrid Hillers, Nicholas Macfarlane, Nebojsa Nakicenovic, Kevin Moss, Johan Rockström, Andrew Steer, Dominic Waughray and Caroline Zimm “Defining ‘Science-based targets’” (2021) 8(7) Natl Sci Rev 1.
José C S Andrade and José A Puppim de Oliveira “The role of the private sector in global climate and energy governance” (2015) 130(2) J Bus Ethics 375.
Jose E Alvarez "Multilateralism and its Discontents" (2000) 11(2) EJIL 393.
Graeme Auld and Lars H Gudbrandsen “Transparency in Nonstate Certification: Consequences for Accountability and Legitimacy” (2010) 10(3) GEP 97.
Paul Schiff Berman “A Pluralist Approach to International Law” (2007) 32 Yale J Int L 301.
Steven Bernstein “Legitimacy in Intergovernmental and Non-State Global Governance” (2011) 18(1) Rev Int Polit Econ 17.
Anders Bjørn, Joachim Peter Tilsted, Amr Addas, and Shannon M Lloyd “Can Science Based Targets Make the Private Sector Paris-Aligned? A Review of the Emerging Evidence” (2022) 8 Current Climate Change Reports 53.
Daniel Bodansky “The Durban Platform: Issues and Options for a 2015 Agreement” (2012) Harvard Project on Climate Agreements Viewpoint (Centre for Climate and Energy Solutions).
Daniel Bodansky “The Legal Character of the Paris Agreement” (2016) 25(2) RECIEL 142.
Daniel Bodansky “Climate Change: Reversing the Past and Advancing the Future” (2021) 115
AJIL Unbound 80.
Ralph Bodie, Lena Donat and Matthais Duwe “The Paris Agreement: Analysis, Assessment
and Outlook” (2016) 2016(1) CCLR 5.
Sofie Bouteligier “Inequality in new global governance arrangements: the North-South divide in transnational municipal networks” (2013) 26(3) Eur J Soc Sci 251.
Jutta Brunnée “COPing with Consent: Law-Making Under Multilateral Environmental
Agreements” (2002) 15(1) LJIL 1.
Sander Chan, Clara Brandi and Steffen Bauer “Aligning Transnational Climate Action with
International Climate Governance: The Road from Paris” (2016) 25(2) RECIEL 238.
Sander Chan and Philip Pattberg “Private Rule-Making and the Politics of Accountability: Analyzing Global Forest Governance” (2008) 8(3) GEP 103.
Ulla Chroback “Corporate Climate Pledges Pile Up – Will It Matter?” (2021) 7(8) Engineering
1044.
Robin Churchill and Geir Ulfstein “Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law” (2000) 94(4) AJIL 623.
David Coen, Kyle Herman and Tom Pegram “Are corporate climate efforts genuine? An empirical analysis of the climate ‘talk-walk’ hypothesis” (2022) Business Strategy and the Environment 1 <https://doi.org/10.1002/bse.3063>.
Kathryn Davidson, Lars Coenen and Brendan Gleeson “A decade of C40: Research insights and agendas for city networks” (2019) 10(4) Global Policy 697.
Olaf Dilling and Till Markus “The Transnationalism of Environmental Law” (2018) 30(2) JEL 179.
Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel and Josephine Van Zeben “Transnational Environmental Law and ‘Other’ Environmental Laws” (2019) 8(3) TEL 393.
Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Bruce Huber, Jacqueline Peel, and Josephine Van Zeben “Ten Years On: Rethinking Transnational Environmental Law” (2021) 10(3) TEL 391.
Robert Falkner “A Minilateral Solution for Global Climate Change? On Bargaining Efficiency, Club Benefits, and International Legitimacy” (2016) 14 Perspectives on Politics 87.
Elizabeth Fisher “The Rise of Transnational Environmental Law and the Expertise of Lawyers”
(2012) 1(1) TEL 43.
Elizabeth Fisher, Betiina Lange, Eloise Scotford and Cinnamon Carlane “Maturity and Methodology: Starting a Debate about Environmental Law Scholarship” (2009) 21(2) J Environ Law 2.
John Gerard "Multilateralism: the anatomy of an institution" (1992) 46(3) Intl Org 561.
Jannick Giesekam, Jonathan Norman, Alice Garvey and Sam Betts-Davies “Science-Based Targets: On Target?” (2021) 13(1657) Sustainability 1.
David Gordon "The Politics of Accountability in Networked Urban Climate Governance"
(2016) 16(2) GEP 82.
David Gordon and Craig Johnson “City-networks, global climate governance, and the road to 1.5°C” (2018) 30 Curr Opin Environ Sustain 35.
Ruth Grant and Robert Keohane “Accountability and Abuse of Power in World Politics” (2005) 99(1) APSR 29.
Jessica F Green and Graeme Auld “Unbundling the Regime Complex: The Effects of Private Authority” (2017) 6(2) TEL 259.
Michael Grubb and Farhana Yamin “Climatic Collapse at The Hague: What Happened, Why,
and Where Do We Go from Here?” (2001) 77 Intl Aff 261.
Thomas Hale and Charles Roger "Orchestration and transnational climate governance" (2014)
9(1) Rev Int Organ 59.
Milja Heikkinen, Tuomas Ylä-Anttila and Sirkku Juhola “Incremental, reformistic or transformational: what kind of change do C40 cities advocate to deal with climate change?” (2019) 21(1) J Environ Pol Plan 90.
Hans Krause Hansen and Tony Porter “What Do Numbers Do in Transnational Governance?” (2012) 6 IPS 409.
Veerle Heyvaert “The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation” (2017) 6 TEL 205.
Cara A Horowitz “Introductory Note to Paris Agreement” (2016) 55 ILM 740.
Sara Hughes, Sarah Giest and Laura Tozer “Accountability and data-driven urban climate
governance” (2020) 10 Nat Clim Change 1085.
Kristine Kern and Harriet Bulkeley “Cities, Europeanization and multi-level governance: Governing climate change through transnational municipal networks” (2009) 47 JCMS 309.
Rakhyun E Kim and Klaus Bosselmann “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements” (2013) 2(2) TEL 285.
Ron Kluvers and John Tippett “Mechanisms of accountability in local government: an exploratory study” (2010) 5 Int J Bus Manag 46.
Harold Koh “Why transnational law matters” (2006) 24(4) Penn State International Law Review 745.
Kati Kulovesi, Michael Mehling and Elise Morgera (2019) “Global Environmental Law: Context and Theory, Challenge and Promise” (2019) 8(3) TEL 405.
Richard Lazarus “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future” (2008) 94 Cornell L Rev 1153.
Swithin Lui, Takeshi Kuramochi, Sybrig Smit Mark Roelfsema, Angel Hsu, Amy Winfurter, Sander Chan, Thomas Hale, Hanna Fekete, Katherina Lütkehermöller, Maria Jose de Villafranca Casas, Leonardo Nascimento, Sebastian Sterl and Niklas Höhne “Correcting course: the emission reduction potential of international cooperate initiatives” (2021) 21(2) Climate Policy 232.
Benoitt Mayer “Climate Change Adaptation and the Law” (2012) 39(2) VA Envt LJ 141.
Carrie Menkel-Meadow “Why and how to study transnational law” (2011) 1(1) UC Irvine Law
Review 97.
Arthur Mol “The Future of Transparency: Power, Pitfalls and Promises” (2010) 10(3) GEP
132.
Bedirch Moldan, Svatana Janoušková,and Thomas Hák “How to understand and measure environmental sustainability: Indicators and targets” (2012) 17 Ecological Indicators 4.
Adil Najam and Mark Halle “Global Environmental Governance: The Challenge of Accountability” (2010) 5 Sustainable Development Insights 1.
Sebastion Oberthür “Clustering of Multilateral Environmental Agreements: Potentials and
Limitations” (2002) 2(4) International Legal Agreements 317.
Jonathan Pickering, Karin Bäckstrand and David Schlosberg “Between environmental and ecological democracy: theory and practice at the democracy-environment nexus” (2020) 22(1) J Environ Policy Plan 1.
Katherine Piper and James Longhurst “Exploring corporate engagement with carbon management techniques” [version 1; peer review: 2 approved with reservations] (2021) 3(9) Emerald Open Res <https://doi.org/10.35241/emeraldopenres.14024.1>.
Lavanya Rajamani “The Making and Unmaking of the Copenhagen Accord” (2010) 59 ICLQ
824.
Lavanya Rajamani “The Durban Platform for Enhanced Action and the Future of the Climate Regime” (2012) 61(2) ICLQ 501.
Henning Rentz “Outcomes of the Fourth Conference of the Parties to the Convention on
Climate Buenos Aires, 2 -13 November 1998” (1999) 10(2) Energy & Environment 157.
Amanda M Rosen “The Wrong Solution at the Right Time: The Failure of the Kyoto Protocol
on Climate change” (2015) 43(1) Politics & Policy 30.
John Gerald Ruggie "Multilateralism: the anatomy of an institution" (1992) 46(3) IO 561.
Peter H Sand “The Effectiveness of Multilateral Environmental Agreements: Theory and Practice” (2021) Glob Envtl L Ann 211.
Peter H Sand, and Jeffrey McGee “Lessons learnt from two decades of international environmental agreements: law” (2022) 22 Int Environ Agreements 263.
Annalisa Savaresi “Ad Hoc WG on the Durban Platform” (2014) 44(6) EP & L 492. Annalisa Savaresi “The Paris Agreement: a new beginning?” (2016) 34(1) JERL 16. Bruno Simma “From Bilateralism to Community Interest” (1994) 250 RCADI 221.
Charlotte Streck “Innovativeness and Paralysis in International Climate Policy” (2012) 1(1)
TEL 137.
Charlotte Streck “Filling in for Governments? The Role of the Private Actors in the International Climate Regime” (2020) 17(1) JEEPL 5.
Charlotte Streck “Strengthening the Paris Agreement by Holding Non-State Actors Accountable: Establishing Normative Links between Transnational Partnerships and Treaty Implementation” (2021) 10(3) TEL 493.
Gregory Shaffer and Daniel Bodansky “Transnationalism, Unilateralism and International Law” (2012) 1(1) TEL 31.
Patrick Széll “Decision Making under Multilateral Environmental Agreements” (1996) 26(5)
EP & L 210.
Harro van Asselt and Joyeeta Gupta “Stretching Too Far? Developing Countries and the Role of Flexibility Mechanisms beyond Kyoto” (2009) 28 ELJ 311 at 377.
David Wachsmuth, Daniel Aldana Cohen and Hillary Angelo “Expand the frontiers of urban
sustainability” (2016) 536 Nature 391.
Jayme Walenta “Climate risk assessment and science-based targets: A review of emerging
private sector climate action tools” (2019) 11(2) WIREs Climate Change 628.
Jayme Walenta “The making of the corporate carbon footprint: the politics behind emission
scoping” (2021) 14(5) J Cult Econ 533.
Emily Webster and Laura Mai “Transnational environmental law in the Anthropocene” (2020)
11(1-2) TLT 1.
Oscar Wilderberg and Philipp Pattberg “Accountability Challenges in the Transnational
Regime Complex for Climate Change” (2017) 34(1) RPR 68.
Peer Zumbansen “Transnational Law” (2008) 9 CLPE Research Paper.
I Books
W Bradnee Chambers Interlinkages and the effectiveness of multilateral environmental agreements (United Nations University Press, Hong Kong, 2008).
Helmut Breitmeier, Oran R Young and Michael Zürn Analyzing International Environmental Regimes – From Case Study to Database (MIT Press, Cambridge, 2006).
Jutta Brunnée and Stephen J Toope Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, Cambridge, 2010).
Gilbert K Chesterton What’s wrong with the world? (Cassell, London, 1910).
Herbert L A Hart, Joseph Raz, Penelope Bulloch and Leslie Green The Concept of Law (3rd ed, Oxford University Press, Oxford, 2012).
Matthew Hoffmann Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, Oxford, 2011).
Jaako Husa Law and Globalisation (Edward Elgar, Cheltenham, 2018).
Douglas M Johnston Consent and Commitment in the World Community: The Classification and Analysis of International Instruments (Transnational Publishers, Irvington-on-Hudson, 1997).
Daniel Klein, Maria Pia Carazo, Meinhard Doelle, Jane Bulmer and Andrew Higham The Paris Agreement on Climate Change – Analysis and Commentary (1st ed, Oxford, Oxford University Press, 2017).
Walter Mattli and Ngaire Woods The politics of global regulation (Princeton University Press, Princeton, 2009).
Kate Raworth Doughnut economics: seven ways to think like a 21st-century economist (Green Publishing, Chelsea, 2017).
Carl Sagan A Vision of the Human Future in Space: Pale Blue Dot (Random House, New York
City, 1994).
Gunther Teubner Global Law Without a State (Dartmouth Publishing Company, Brookfield,
1997).
Neil Walker Intimations of Global Law (Cambridge University Press, Cambridge, 2015).
Jeroen van der Heijden Governance for urban sustainability and resilience responding to climate change and the relevance of the built environment (Edward Elgar, Cheltenham, 2014).
Marcelo Dias Varella Internationalization of Law: Globalization, International Law and Complexity (Springer, Berlin, 2014).
J Chapters in Books
Daniel Bodansky “Legitimacy” in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds) Oxford Handbook of International Environmental Law (Oxford University Press, Oxford, 2007) 704.
Aleksandra Čavoški “Transnational environmental regulation and evolving approaches to compliance” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 104.
Klaus Dingwerth and Jessica Green “Transnationalism” in K Bäckstrand (ed) Research Handbook on Climate Governance (Edward Elgar Publishing, Cheltenham, 2015) 153.
Edouard Fromageau “Global administrative law and cities: the perfect couple that never was” in Helmut Philipp Aust and Janne E. Nijman (ed) Research Handbook on International Law and Cities (Edward Elgar, Cheltenham, 2021) 411.
Håvard Haarstad “Do Climate Targets Matter? The Accountability of Target-setting in Urban Climate and Energy Policy” in Siddharth Sareen (ed) Enabling Sustainable Energy Transitions (Palgrave Pivot, Cham, 2020) 63.
Veerle Heyvaert and Leslie-Anne Duvic Paoli “The meanings of transnational environmental law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) i.
Soh Young In and Kim Schumacher “Carbonwashing: ESG Data Greenwashing in a Post-Paris World” in Thomas Heller and Alicia Seiger (ed) Settling Climate Accounts – Navigating the Road to Net Zero (Springer Nature Switzerland AG, Cham Switzerland, 2021) 39.
Harold K Jacobson and Edith Brown Weiss “A Framework for Analysis” in Edith Brown Weiss and Harold K Jacobson (ed) Engaging Countries: Strengthening Compliance with International Environmental Accords (MIT Press, Michigan, 1998) 1.
Sébastien Jodoin, Ling Chen and Carolina Gueiros “Vice or virtue? Flexibility in transnational environmental law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 284.
Jolene Lin “The role of subnational actors in transnational climate change law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 216.
Jolene Lin “The Emergence of Transnational Environmental Law” in Louis Kotzé (ed)
Environmental Law and Governance for the Anthropocene (Hart, London, 2017) 331.
Harold Anthony Lloyd "Theory without practice is empty; practice without theory is blind: the inherent inseparability of doctrine and skills" in Linda H Edwards (ed) The Doctrine Skills Divide: Legal Education’s Self-inflicted Would (Carolina Academic Press, Durham, 2017) 7.
Elisa Morgera, Louisa Parks and Mika Schroeder “Methodological challenges of transnational environmental law” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 48.
Jerneja Penca “Regulatory instruments of transnational environmental governance” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 88.
Gregory Shaffer “Transnational Legal Ordering and State Change” in Gregory Shaffer (ed) Transnational Legal Ordering and State Change (Cambridge University Press, Cambridge, 2012) 1.
Dolf Sternberger “Legitimacy” in David Sills (ed) International Encyclopedia of the Social Sciences (Vol 9, Macmillan 1968) 244.
Oran R Young, Marc A Levy and Gail Osherenko "The Effectiveness of International Environmental Regimes” in Oran R Young (ed) The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (MIT Press, 1999) 1.
Josephine van Zeben “Facing the legitimacy challenge: law as a disciplining force for transnational environmental governance” in Veerle Heyvaert and Leslie-Anne Duvic-Paoli (ed) Research Handbook on Transnational Environmental Law (Edward Elgar, Cheltenham, 2020) 145.
K University Work
Lea Ottilie Fink “What drives firms to successfully cooperate on climate change? – an institutional analysis of the Science Based Targets initiative” (MSc Thesis, Humboldt- Universitat Zu Berlin, 2018).
Bridget Killian “Does More Mean Better? the Effectiveness of City Networks on Emissions Reduction Activity” (MA Thesis, The University of North Carolina, 2021).
Jolene Lin "Governing Climate Change: Global Cities and Transnational Lawmaking" (PhD in
Law, Erasmus University Rotterdam, 2017).
Hanneke van Haeff “Organisational legitimacy as an incentive for companies to set science- based targets and shape a more attractive investor profile – An investors perspective” (Sustainable Business and Innovation Master’s Thesis, Utrecht University, 2021).
L Research and Working Papers
Patrick Bolton and Marcin T Kacperczyk Firm commitments (Research Paper, Columbia Business School, 2022).
David Freiberg, Jody Grewal and George Serafeim Science-based carbon emissions targets
(Working Paper, Harvard Business School, 2021).
Chirag Gajjar, Subrata Chakrabarty, and Priyal Shah Estimating the impact of corporate Science-Based Emissions Targets on India’s Nationally Determined Contribution Goals (Working Paper, World Resource Institute, 2022).
Rana Lehr-Lehnardt “NGO legitimacy: reassessing democracy, accountability and transparency” (Graduate Student Conference Paper, Cornell Law School Inter-University, 2005).
Ernst-Ulrich Petersmann State Sovereignty, Popular Sovereignty and Individual Sovereignty: from Constitutional Nationalism to Multilevel Constitutionalism in International Economic Law? (Working Paper, EU LAW, 2006).
M Internet Sources
C40 Cities “1.5°C Climate Action Plans” <https://www.c40.org/what-we-do/raising-climate- ambition/1-5c-climate-action-plans/>.
C40 Cities “30 of the world’s largest and most influential cities have peaked greenhouse gas emissions” (8 October 2019) <https://www.c40.org/news/30-of-the-world-s-largest-most- influential-cities-have-peaked-greenhouse-gas- emissions/?gclid=Cj0KCQjwjvaYBhDlARIsAO8PkE2riePGf1E1gYPLlyHfh8Gz4zv-Us6g- A2MTooS-3z-SeIFg556-wEaAoQBEALw_wcB>.
C40 Cities “About C40” <https://www.c40.org/about-c40/>.
C40 Cities “Accelerator Reports” <https://www.c40.org/what-we-do/raising-climate- ambition/accelerator-reports/>.
C40 Cities “Cities Race to Zero” <https://www.c40.org/what-we-do/building-a- movement/cities-race-to-zero/>.
C40 Cities “Equity Pledge” <https://www.c40.org/accelerators/equity-pledge/>.
C40 Cities “Global Green New Deal” <https://www.c40.org/what-we-do/building-a- movement/global-green-new-deal/>.
C40 Cities “High-Impact Accelerators” <https://www.c40.org/what-we-do/raising-climate- ambition/high-impact-accelerators/>.
C40 Cities “Home” <https://www.c40.org/>.
C40 Cities “How data is empowering city climate action” (30 August 2017)
<https://www.c40.org/news/how-data-is-empowering-city-climate-action/>. C40 Cities “Our Cities” <https://www.c40.org/cities/>.
C40 Cities “Raising Climate ambition” <https://www.c40.org/what-we-do/raising-climate- ambition/>.
C40 Cities “Research & Knowledge” <https://www.c40.org/what-we-do/raising-climate- ambition/research-and-knowledge/>.
C40 Cities “Statement by the C40 Cities Steering Committee on the organisation’s new Leadership Standards” (6 January 2021) <https://www.c40.org/news/statement-by-the-c40- cities-steering-committee/>.
C40 Cities Research Centre “Monitoring, evaluation and reporting”
<https://resourcecentre.c40.org/resources/monitoring-evaluation-and-reporting>.
C40 Cities Resource Centre “Measuring GHG emissions”
<https://resourcecentre.c40.org/resources/measuring-ghg-emissions>.
C40 Cities Resource Centre “Reporting GHG emissions inventories”
<https://resourcecentre.c40.org/resources/reporting-ghg-emissions-inventories>.
C40 Knowledge Hub “About Cities Race to Zero”
<https://www.c40knowledgehub.org/s/cities-race-to-zero-about?language=en_US>.
C40 Knowledge Hub “Cities Race to Zero” <https://www.c40knowledgehub.org/s/cities- race-to-zero?language=en_US#:~:text=The%20Race%20to%20Zero%20is,and%20unlock s%20inclusive%2C%20sustainable%20growth>.
C40 Knowledge Hub “Climate Action Planning”
<https://www.c40knowledgehub.org/s/topic/0TO1Q0000001lR9WAI/climate-action- planning?language=en_US>.
C40 Knowledge Hub “Creating City Portraits: A methodological guide from the Thriving Cities Initiative” <https://www.c40knowledgehub.org/s/article/Creating-City-Portraits-A- methodological-guide-from-the-Thriving-Cities-Initiative?language=en_US>.
C40 Knowledge Hub “Deadline 2020: How cities will get the job done” (November 2016)
<https://www.c40knowledgehub.org/s/article/Deadline-2020-How-cities-will-get-the-job- done?language=en_US#:~:text=Deadline%202020%20is%20the%20first,findings%20are%2 0more%20broadly%20applicable>.
C40 Knowledge Hub “Exploring the benefits of consistent and comparable city-wide greenhouse gas emission inventories” (October 2018)
<https://www.c40knowledgehub.org/s/article/Exploring-the-benefits-of-consistent-and- comparable-city-wide-greenhouse-gas-emission-inventories?language=en_US>.
C40 Knowledge Hub “Greenhouse gas emissions interactive dashboard” (September 2022)
<https://www.c40knowledgehub.org/s/article/C40-cities-greenhouse-gas-emissions- interactive-dashboard?language=en_US>.
C40 Resource Centre “Reviewing GHG emissions inventories”
<https://resourcecentre.c40.org/resources/reviewing-ghg-emissions-inventories>.
Ciara Nugent “Companies Brought Big Promises to COP26. Cities Brought Actions” (12 November 2021) Time <https://time.com/6116779/cop26-cities-climate/>.
Climate Action “C40 Cities & Siemens to collaborate on sustainability” (19 April 2013)
<https://www.climateaction.org/news/c40_cities_siemens_to_collaboration_on_sustainability
>.
Climate Action Tracker “Temperatures”
<https://climateactiontracker.org/global/temperatures/>.
Compact of Mayors “Compact of Mayors: Definition of Compliance” (July 2015)
<https://www.bbhub.io/mayors/sites/14/2015/07/Compact-of-Mayors_Definition-of- Compliance.pdf>.
COPE “Peer review processes” <https://publicationethics.org/peerreview>.
Cynthia Cummis “3 Ways to Ensure Corporate Net-zero Targets Are Credible” (2 November 2021) WRI <https://www.wri.org/insights/ways-companies-credible-net-zero-targets>.
John Vidal “Copenhagen Climate Failure Blamed on “Danish Text”’ (31 May 2010) The Guardian <http://www.guardian.co.uk/environment/2010/may/31/climate-changecopenhagen-
>.
Kevin Moss “The Bar for Corporate Climate Leadership Has Risen” (May 20 2022) WRI
<https://www.wri.org/insights/rising-bar-corporate-climate- action?utm_campaign=wridigest&utm_source=wridigest-2022-05- 24&utm_medium=email&utm_content=readmore>.
Laura Quiñones “COP26 closes with ‘compromise’ deal on climate, but it’s not enough, says UN chief” (13 November 2021) UN News <https://news.un.org/en/story/2021/11/1105792>.
Lucy Hayes “Frequently asked questions about science based targets” (22 July 2020) ecoact
<https://eco-act.com/science-based-targets/frequently-asked-questions/>.
Luiz Amaral “Ambition, growth and evolution: Six key takeaways from the SBTi’s new strategy” (19 July 2022) SBTi <https://sciencebasedtargets.org/blog/ambition-growth-and- evolution-six-key-takeaways-from-the-sbtis-new-strategy>.
NASA “The Causes of Climate Change” Global Climate Change
<https://climate.nasa.gov/causes/>.
Richard Black “Climate talks a tricky business” (18 November 2006) BBC
<http://news.bbc.co.uk/2/hi/science/nature/6161998.stm> .
Richard Mahapatra “CoP26: With less than 100 months left for a climate redline, here is a deal that feels laggard” (14 November 2021) DownToEarth
<https://www.downtoearth.org.in/news/climate-change/cop26-with-less-than-100-months- left-for-a-climate-redline-here-is-a-deal-that-feels-laggard-80195>.
SBTi “Ambitious Corporate Climate Action” <https://sciencebasedtargets.org/>.
SBTi “Case Studies” <https://sciencebasedtargets.org/companies-taking-action/case- studies/p3>.
SBTI “FAQ: Do I need to inform the SBTi if my company goes through changes that may impact the target?” <https://sciencebasedtargets.org/faqs#do-i-need-to-inform-the-sbti-if-my- company-goes-through-changes-that-may-impact-the-target>.
SBTi “Funders” <https://sciencebasedtargets.org/about-us/funders>.
SBTi “Launching the Global Net-Zero Standard” (28 October 2021)
<https://sciencebasedtargets.org/events/launching-the-global-net-zero-standard>. SBTi “Meet the Team” <https://sciencebasedtargets.org/about-us/the-team>.
SBTi “The Net-Zero Standard” <https://sciencebasedtargets.org/net-zero>. SBTi “Governance” <https://sciencebasedtargets.org/about-us/governance>.
SBTi “The SBTi appoints first CEO to spearhead exponential growth in corporate climate action” (23 February 2022) <https://sciencebasedtargets.org/news/the-sbti-appoints-first-ceo- to-spearhead-exponential-growth-in-corporate-climate-action>.
UNEP “Beyond Kyoto – What next? (UNFCCC COP 8)” (30 October 2002) UNEP Finance Initiative <https://staging.unepfi.org/themes/climate-change/beyond-kyoto-what-next-unfccc- cop-8/>.
United Nations Global Compact “Caring for Climate 2021 Opening Remarks” YouTube (10
November 2021)
<https://www.youtube.com/watch?v=xKupJA8DmwA&ab_channel=UnitedNationsGlobalCo mpact>.
UNFCCC “Moving Towards the Enhanced Transparency Framework”
<https://unfccc.int/enhanced-transparency-framework>.
Wendy Zeldin “United Nations: Climate Change Conference Concluded” (24 December 2008) Library of Congress <https://www.loc.gov/item/global-legal-monitor/2008-12-24/united- nations-climate-change-conference-concluded/>.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2022/23.html