By Claudia Delgado
On October 26, 2023, GW Law’s Environmental and Energy Law Program hosted its second annual J.B. and Maurice C. Shapiro Distinguished Lecture on Global Climate Change and Energy Law. This lecture celebrates the vision and leadership of Professor Arnold Reitze, who founded and directed GW Law’s Environmental and Energy Law Program from 1970-2008. The Shapiro Distinguished Lecture brings globally recognized environmental experts to Washington D.C. to address cutting-edge issues on climate change and energy law.
This year GW Law had the honor and privilege of hosting Dr. Patrícia Galvão Ferreira as the 2023 distinguished lecturer. Dr. Galvão Ferreira is an Associate Professor with the Marine & Environmental Law Institute at Schulich School of Law at Dalhousie University, in Halifax, Nova Scotia. She is also the chairperson of the Brazil advisory board for the Center for Justice and International Law (CEJIL). Her research focuses on transnational environmental law and justice, with particular interests in international climate law, climate justice, climate finance, and sustainable food systems.
Her presentation, “Unlocking CBDR: How National Courts Are Domesticating an Equity Principle of International Environmental Law and Why That Matters for Climate Justice,” addressed how the international equity principle of “common but differentiated responsibilities and respective capabilities” (“CBDR-RC” or “CBDR”) translates to the domestic legal protections in climate litigation.
Dr. Galvão Ferreira began by defining CBDR as an international equity principle that allows for countries to contribute their fair share of global mitigation efforts based on their specific financial and technological capabilities and their socio-economic conditions, among other factors. The principle is premised on the idea that all countries have a common yet differentiated mitigation responsibility that is determined by different equity benchmarks. In other words, every country has climate change mitigation obligations. The scope of these obligations is determined by the nation’s unique circumstances. As a result, there is a consensus that developed countries should take the lead and contribute more than developing countries.
CBDR has historically been used to guide differentiated commitments between countries in an outward manner, aiming to guide state-to-state negotiations of environmental agreements. However, this international principle has recently made its way to the domestic sphere in climate lawsuits around the world. Some organizations in developing countries have argued that their countries are using CBDR as an excuse to avoid taking action on climate mitigation, therefore directly compromising their way of life, health, safety, and livelihood. Affected communities have sought relief in domestic courts, arguing that CBDR focuses on differentiating commitments between countries and it is not a justification for inaction by developing countries. CBDR mandates action by all states. These vulnerable groups assert that states are setting emission reduction targets that are too low in light of what should constitute their fair share of global mitigation efforts and governments are failing to fulfill their obligations to implement their fair share of commitments.
Because of the application of CBDR in domestic courts, this principle is starting to take on an “inward-looking” angle. Dr. Galvão Ferreira proposed that courts’ engagement with CBDR in climate litigation is linked to ensuring global temperature goals, a finite carbon budget, equitably dividing climate burdens among states, and preventing the disproportionate climate impacts to already vulnerable social groups or countries. Courts are using this soft law principle not to determine a state’s obligation, but rather to say what level of discretion the country has when determining by what amount it will reduce emissions. The question then remains: how can a system emerge to engage CBDR to ensure that it adequately protects vulnerable communities in the Global South.
Dr. Galvão Ferreira’s lecture was followed by commentary from two discussants: Dr. Rachael Jonassen and Judge Gabriel Wedy. Dr. Jonassen is the Director of Climate Change and Greenhouse Gas Management programs at the Environmental and Energy Management Institute as well as Associate Research Professor of Urban Sustainability at George Washington University. Dr Jonassen’s commentary focused on how scientists aid courts in understanding the importance of carbon budgets, fossil fuels, base temperatures, and other climate science principles to make informed decisions on climate change mitigation. In allocating responsibility for mitigating the consequences of climate change, science and the law are integrally intertwined.
Judge Gabriel Wedy is a federal judge, law professor at the University of Vale do Rio dos Sinos (UNISINOS), and environmental law professor at ESMAFE (Superior School of the Federal Magistrature). Judge Gabriel Wedy discussed how the principle of CBDR is utilized in domestic law in Brazil in the national policy on climate change. He noted that although the policy may have flaws in its abstract nature, it nevertheless constitutes a significant advance as a milestone in the fight against climate change.
The lecture was followed by a collaboration lunch where multiple stakeholders gathered to discuss multidisciplinary opportunities for collaboration between GW Law and Dalhousie University.
Claudia Delgado
Claudia is a Program Associate for Academic Programs at The George Washington University Law School. She holds a JD from GW Law and is a member of the DC Bar.
