We'll always have Paris? Reflections on the shifting tides of climate change engagement during the first week of COP26

WE'LL ALWAYS HAVE PARIS? REFLECTIONS ON THE SHIFTING TIDES OF CLIMATE CHANGE ENGAGEMENT DURING THE FIRST WEEK OF COP26

The Climate Transparency Report 2021 records that unlike Australia, India is significantly under the G20 average for per capita greenhouse gas emissions, but emissions are climbing– as week one of COP26 draws to a close, how have these countries navigated this shifting landscape?

Nearly five years have passed since the watershed Paris Agreement entered into force on 4 November 2016. Other than Kyoto, no legally binding international treaty on climate change has been so influential at a domestic level. Since Paris, the world has been upended by a relentless and unforgiving pandemic, has witnessed a change in world leaders, experienced climate related disasters in all forms, digested the Sixth Assessment Report from the IPCC and, through it all, lawmakers have shifted in varying degrees to adapt to and mitigate the effects of climate change.

The next Conference of Parties (COP26) was originally due to take place in 2020, however due to the pandemic it was rescheduled to November 2021 in Glasgow. Hosted by the UK and led by Indian born COP President-Designate, Alok Sharma, nations have gone head-to-head to debate next steps in ratcheting up compliance mechanisms with the Paris Agreement. The primary goal of Glasgow is receiving a commitment from each nation to achieve net zero by 2050 and to keep 1.5 degrees within reach. Additional items include adaption to protect communities and natural habitats, to mobilise finance and to work together to deliver outcomes in line with the Paris Agreement. Countries are expected to outline its stance on contributing to a low-carbon, increasingly sustainable, resource efficient global economy in the coming weeks. No doubt rejuvenated by the United States' administration immediately opting back into the Paris Agreement, President Biden has lead efforts to mobilise finance and secure greater emissions reductions pledges in the form of Intended Nationally Determined Contributions (NDCs) to edge fellow nations to achieving this goal.

In preparation for COP26, the Australian Prime, Minister Scott Morrison, and Indian Prime Minister, Narendra Modi, met on 26 September 2021 to discuss commerce, trade, energy, and in particular an India-Australia Comprehensive Strategic Partnership and negotiations on a bilateral Comprehensive Economic Cooperation Agreement. This meeting was catalysed by Australia and India joining 'The Quad' – a new diplomatic bloc comprising India, the US, Japan, and Australia, partly to counter China's presence in the Indo-Pacific region. This meeting came ahead of the first in-person meeting of the Quad, due to take place in late September 2021. Added to the mix is a recently revitalised trio of AUKUS, announced in mid-September 2021, which saw Australia abandoning long anticipated French diesel submarines, causing diplomatic strife between Australia and France, the ripples of which are still being felt at COP26.

At the time of writing this article, the first week of COP26 has just finished – world leaders have now departed Glasgow and delegates now have until 12 November 2021 to 'ratchet up' the climate commitments made by each head of state.

Notwithstanding the adjustments to the formation of the Quad and AUKUS, the battle lines drawn at Paris remain largely unchanged since COP21. It remains to be seen whether these alliances will address threats of security in the Indo Pacific region as encompassing threats associated with climate change, particularly to its low lying neighbours. These power dynamics have the potential to influence both India and Australia's climate commitments at COP26 and subsequent domestic policies and laws, and will impact any strategic litigation to flow from such commitments to hold a country accountable to its target.

Regarding future litigation, whilst both countries fall outside of a supra-national human rights framework, a string of climate change litigation cases have been handed down in recent years. These types of cases spiked in popularity after the Paris Agreement. In Australia, these judgments have caused significant pivoting in the resources sector and led to novel duties being recognised and enforced at common law. For example, in May 2021, the Federal Court of Australia handed down the decision in Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment, recognising a novel duty in the tort of negligence due to the foreseeable harm of climate change. In this case, a (narrow) duty is owed to the children of Australia and subject to the outcome of the appeal, may in certain circumstances have significant consequences for the granting of approvals that are emissions intensive.

Moving now to the future, India has made significant headway during the first week of COP26– in a country first, Prime Minister Modi announced that India would commit to net zero emissions by 2070. A further surprise came when Modi announced his country's pledge to triple renewables by 2030and increase its non-fossil energy capacity to 500 gigawatts. This will likely involve partnering with the UK and the International Solar Alliance to construct a green super grid across India, a significant move towards carbon neutrality. These announcements are expected to form part of India's NDC, due to be submitted to the UN in the coming weeks.

With the appointment in March 2021of Mathias Cormann as the head of the OECD, and following the French submarine upset, Australia is in sharper focus at COP26. Cormann, Australia's longest serving finance minister, began his five year term on 1 June 2021 and has singled out climate change as a pillar of his platform, raising a global approach to carbon neutrality by 2050, in line with the goals of COP26. Cormann is highly critical of OECD nations that have preserved taxpayer funded fossil fuel subsidies because this violates the pledge made by OECD countries at COP15in 2009 to phase out inefficient fossil fuel subsidies over the medium term and to have developed nations pay US$100 billion each year for 2020 – 2025 to developing nations. During the first week of COP26, John Kerry (US Special Presidential Envoy for Climate) announced that developed nations will indeed deliver the US$100 billion to developing countries, from 2022 onwards.

Given Australia's limited engagement with climate change commitments, its current stance(former Australian diplomatscallit a climate "inertia") has caused upset during the first week of COP26 in Glasgow. This is despite the current Australian Treasurer Josh Frydenberg MP publicly stating his support to net zero by 2050. During a recent business summit, and noting that many Australian corporations are engaging with carbon neutrality, Frydenberg MP foreshadowed that Australia ran the risk of giving an impression to the global market that it is not transitioning in line with the rest of the world.

The first week of COP26 has seen a strain on the AUSUK alliance, with Australia and India declining to sign the Global Coal to Clean Power Transition Statement, as drafted by the UK delegation. Notable signatories include South Korea, Vietnam and Indonesia. This Statement would see the phasing out of coal in the 2030s for major economies, a significant shift for the global energy market, but in a turn of events the final draft has introduced the phrase "or as soon as possible thereafter". This open ended drafting leaves room for major economies to mitigate and adapt its energy sectors as best possible but has attracted significant criticism from civil society for its open-endedness, with some dubbing it an unnecessary "loophole". As at the time of writing, there is no mechanism to ensure signatories follow through on this commitment. Some countries such as Indonesia have made their commitment conditional, and will only consider accelerating coal phase out into the 2040s if additional international financial and technical assistance is provided.