Billions in private investment waiting for...

clearer action and guarantees from governments on pathway to 2050.

 

Germany has stepped back from its long established climate goals by stating the impossibility of reaching its 2020 targets. Because of this declaration, a complaint, led by Greenpeace Germany, has been filed against the German Federal Government asking the Administrative Court to make a decision on the binding character of nationally established climate targets, alleging that constitutional rights will be encroached upon if such targets fail to be met.


“Rules” aren’t enough. Change the law


This case might find some answers once the German Climate Protection Law (Klimaschutzgesetz) is implemented. This law, which is expected to come into force early in early 2019, will try to establish the binding character of climate targets. Following the adoption of binding climate protection rules at the COP 24 in Katowice (Poland), Germany’s Federal Environment Minister Svenja Schulze (SPD) requested that

 

“we now need greater commitment to climate protection in Germany as well,

so that we can really implement the international concession.”

 

However, much debate has arisen regarding the sufficiency of an ordinary law for declaring the binding character of a governmental commitment carried out via administrative acts. Without diminishing the step forward that this law might have, many argue that only a constitutional reform which clearly establishes pathways for protecting the climate, will ensure that government climate targets are made binding. The attainment of such goals is so politically dependent, that an ordinary law might not suffice for coercing the German Government to comply with its commitments.

Private investors need Articles 6 and 7 of the Paris Agreement strengthened

The law and claim previously referred to come at a critical time, and their result will hopefully tip the scale towards pressuring governments to reach their targets, especially taking into account the lack of progress made in the international arena specifically during COP 24 in Katowice, Poland. The Rule Book implementing the provisions of the Paris Agreement was expected to be finalised and provide more clarity for financial flows and mechanisms. Articles 6 and 7 are specially relevant for private financiers, seeking to place their money in environmentally and economically safer projects, and at the same time potentially support governments in reaching their established targets.

 

What remains to be defined, and what private investors were looking for, was the rules establishing how private investors could participate in these collaboration mechanisms. But this expectation from the financial community was unfortunately not met, leading to two different scenarios. In one scenario, countries and companies can decide to lead the way individually via voluntary measures even if not all Rules are clearly defined. In a second scenario, we could see laws, litigation, citizen´s mobilisation and shareholder pressure increase as a way for making companies and countries fulfil their commitments towards existing targets, and not accepting as an excuse that the Rules need to be perfectly defined before action is taken.

 

  • Article 6 establishes different mechanisms which can be disposed of by countries, towards reaching their Nationally Determined Contributions (NDCs).
  • Article 6.2 presents Internationally Transferable Determined Mitigation Outcomes (ITMOS), which consist of bilateral or plurilateral transfer of emission reductions.
  • Article 6.4 deals with a new market mechanism, referred to as “Sustainable Development Mechanism”, which is expected to operate similarly to Clean Development Mechanism established in the Kyoto Protocol.
  • Article 7 deals with different means for financing adaptation measures.

Nationally Determined Contributions (NDCs) are currently a long way from becoming directly binding for companies. Regardless of this, the Paris Agreement might bring interesting business opportunities, seeing that countries might turn to companies for either technical or financial collaboration for reaching established targets. They might do so, by looking to any of the collaboration mechanisms established in Article 6, which might either take place during future market mechanisms built by countries in the context of Article 6.2 or through the centrally governed market mechanism established under Article 6.4.

 

The current level of detail of Articles 6 and 7 is yet too vague to figure out existing mechanisms in which collaborations might be established. Nonetheless, understanding that private sector involvement is almost inevitable from a financial perspective for reaching the NDCs, companies could benefit from exploring options to develop emission reduction activities which could be eligible under Article 6.

$16.5tn is needed up to 2030, one third from private Investors

The seriousness with which countries take their established targets is particularly relevant to private investors, who hold about 1/3 of the funds required to reach global NDC´s. According to the International Energy Agency (IEA), 16.5 trillion USD are required until 2030 in energy efficiency and low-carbon technologies for holding the temperature increase below 2°C. Considering that current funding towards existing climate pledges seems insufficient, national governments are bound to turn to private finance to fill the gaps towards fulfilling their commitments. Private investors seem to be well aware of the role they play in the attainment of climate targets. Even if many are interested in providing capital towards this end, they have established as preconditions for their funding to be dispensed, that rules on financing must be clearly stipulated. They have also demanded political certainty about how serious governments will take their present and future targets.

 

At the expense of losing money due to intermittent political progress and consequent market fluctuations, investors are being very wary about providing finance in such uncertain conditions. This makes cases such as Germany´s and other plaintiffs of climate lawsuits much more relevant, considering the amount of legislative and political activity taking place at an EU Level, destined to encourage the flow of finance for “climate friendly” investments. If big leaders’ commitment towards climate goals becomes flaky, will there be enough incentive for individual financial institutions to support global goals?

 

***

 

You don't want to miss an article? Subscribe to right.now - our quarterly provided newsletter. More insights on climate-related legal risks and opportunities in our new "Law & Policy" section on this webpage. 

 

#ClimateChangeLiability Increasing regulatory pressures to address climate-related risks. Demand for science-based climate metrics is rising. 

 

Climate litigation as a source of pressure for climate action. Materiality for corporations. The role of attribution science, for helping allocate specific damages. Are you ready? Join our Webinar

 

Tune in for a webinar directed at legal practitioners, rating providers and financial actors, looking for legal direction. We'll walk you through the recent happenings leading to requests for science-based climate metrics.

Marcela Scarpellini studied law at the Universidad Católica Andrés Bello in Caracas (Venezuela) and studied with an LL.M. at the University of Stockholm (Sweden) in the field of environmental law. Marcela is in charge of the legal aspects regarding 2°C-compatibility within right.

 

This article was firstly published on Energy Post. Energy Post seeks to report on the European and international energy sector from a truly integrated perspective, i.e. telling the real stories behind the headlines and making clear the crucial links that exist between events, actions, people and ideas.