On 17 September, Philippe Sands, QC and Professor of law at UCL, gave a public lecture (video here, slightly different text here) at Kings College London the UK Supreme Court, as part of a two-day meeting on Climate change and the rule of law.
Robin Guenier has written a detailed and carefully referenced response to the lecture. Robin is a qualified barrister — there is a short biography at the end of his piece. Two previous articles by him have been posted here.
Other coverage of Philippe Sands’s lecture:
Adjudicating the Future: Climate Change & the Rule of Law. A ‘Storify’ of tweets.
World court should rule on climate science to quash sceptics, says Philippe Sands
Donna Laframboise: Silencing Dissent Via the Courts and Supreme Court Justice Carnwath: Climate Activist
A Supreme Court justice and the scary plan to outlaw climate change
See also the #climatecourts twitter tag.
In the introduction to the Philippe Sands lecture, Lord Carnwath says “The purpose of this conference is to stimulate such a debate…”. It will be interesting to see how Sands and others involved with the conference respond to the debate started by Robin’s piece.
Update 12 Oct:
There seems to be continuing interest in this story:
Of legal beagles and climate change views, from Hilary Ostrov, including links to comments from others who were at the meeting.
Judges plan to outlaw climate change ‘denial’, Christopher Booker in the Telegraph, with over 3000 comments.
Adjudicating the future: silencing climate dissent via the courts, Judith Curry.
Justiciable climate? Bishop Hill, with a link to an interesting article on the wisdom or otherwise of courts ruling on scientific matters.
No response yet from the learned professor himself though.
Who will watch the watchmen? A substantial response from the inimitable Christopher Monckton.
Update 29 Oct:
A significant new development: Lucas Bergkamp, a partner in a law firm and emeritus professor has written a paper
Adjudicating Scientific Disputes in Climate Science: The Limits of Judicial Competence and the Risks of Taking Sides which appears to be a direct response to Sands, who is mentioned several times. The Bergkamp paper is discussed at Climate etc. It’s nice to see that Bergkamp cites Robin Guenier’s “thoughtful comments” several times.
Bergkamp doesn’t mince his words. The abstract includes: “Courts should refrain from examining and ruling on climate science, since they are neither authorized nor competent to rule in scientific disputes. Even if judicial competence is assumed, climate science is not ripe for adjudication. To the contrary, the politicization of the science and the socio-political construction of scientific consensus in the climate area render any attempt to rule impartially on the key scientific disputes futile and suspect. Whether in the form of an advisory opinion or otherwise, a court judgment would be perceived as taking sides and, thus, would only aggravate an already badly politicized situation. Courts, including the ICJ, should uphold the rule of law and respect the limits of their authority. They should therefore refuse to opine on climate science and refer scientific disputes back to the scientific community, which is where they belong.”
The IPCC Report 
Everyone who is concerned with climate justice, in the broadest sense, should study this careful commentary by Robin Guenier on the extraordinary proposals of Philippe Sands at the UK Supreme Court last month. Robin not only calmly shows how barmy it is to suggest that a court of any kind, even one as exalted as the International Court of Justice, should pronounce on the many complex and interlocked scientific questions raised by global warming, its likely causes and possible future impacts. Even more important, because international treaties, quite rightly, allow developing countries to put reduction of poverty through cheap, reliable energy ahead of decarbonisation, and because ‘developing country’ still includes China and India, who have no intention of giving up the privilege, no amount of such ICJ judgments will have any effect in slowing down the growth of global emissions.
Such futile legal activism would still be irresponsible because of the damage it could do to vital businesses and services, and the ordinary people that rely on them, in what are deemed developed countries. The international legal elite would be far better concentrating on the needs of other minorities, such as those currently at risk of mass atrocities in Iraq and Syria.
Limiting freedom of speech by the thought police should send shivers down the spine of every American.
Professor Sands’ lecture was given, not at King’s College, but – remarkably – in the UK Supreme Court.
Robin, yes, thanks for the correction.
Robin, I very much appreciated your take on this. And I had composed a reply noting my own impressions – which I would like to think complement your own.
But it got to be somewhat on the long side with far too many links (a few of which you might want to add to your post, Paul)… So I’ve posted my thoughts on my own blog. For those who might be interested, please see:
Of legal beagles and climate change views
What an excellent analysis and more so that it is from someone arguing from the same discipline.
It is interesting to note the mention of the 2 degree limit in a footnote link. The director of the Potsdam Institute, John Schellnhuber, climate advisor to the Pope and Angela Merkel, has always claimed this as his own, as demonstrated in the link, but it is not quite the case.
The source document for Schellnhuber’s 2 degree “limit” is this one and it is the basis for its incorporation into initially, EU policy, but is now quoted as the global Holy Grail.
:
Click to access wbgu_sn1995_engl.pdf
German Advisory Council on Global Change (WBGU)
“Scenario for the derivation of global CO2 reduction targets and implementation strategies”
Statement on the occasion of the First Conference of the Parties to the Framework Convention on Climate Change in Berlin – March 1995
(The IPCC started in 1988, the UNFCCC didn’t emerge until 1994, Berlin was the venue for the first “COP” in 1995.)
Ironically, 1995 seems to be the point at which the “pause” or “hiatus” commenced, demonstrating that CO2 cannot be the global thermostat it is claimed to be, as emissions have continued to rise and atmospheric CO2 concentrations have increased also.
The report describes a temperature tolerance window, based on very arbitrary figures and the assumption that one can have a meaningful global temperature. They referred to it as a “thought experiment.”
“This window is derived from the range of fluctuation for the Earth’s mean temperature in the late Quaternary period. This geological epoch has shaped our present-day environment, with the lowest temperatures occurring in the last ice age (mean minimum around 10.4 °C) and the highest temperatures during the last interglacial period (mean maximum around 16.1 °C).
If this temperature range is exceeded in either direction, dramatic changes in the composition and function of today’s ecosystems can be expected. If we extend the tolerance range by a further 0.5 °C at either end, then the tolerable temperature window extends from 9.9 °C to 16.6 °C. Today’s global mean temperature is around 15.3 °C, which means that the temperature span to the tolerable maximum is currently only 1.3 °C.
The Council believes that such an integrated assessment of the climate change problem in the “backwards mode” has several advantages in comparison with the straightforward approach. It has to be emphasised, however, that the analysis employs a number of assumptions and approximations and therefore has the character of a Gedankenexperiment“. (Thought experiment)”
It was not however an original idea and the first suggestion to use 2C as a critical limit for climate policy was made by economist, W.D. Nordhaus, in a Cowles foundation discussion paper (Nordhaus WD (1977) “Strategies for the control of carbon dioxide”), Cowles Foundation for Research in Economics at Yale University.
His “scientific” reasoning bears a striking resemblance to that which emerged from the WGBU 18 years later, including a similar overall range from warmest to coldest.
‘‘As a first approximation, it seems reasonable to argue that the climatic effects of carbon dioxide should be kept within the normal range of long-term climatic variation. According to most sources the range of variation between distinct climatic regimes is in the order of ±5C, and at the present time the global climate is at the high end of this range.
If there were global temperatures more than 2 or 3 above the current average temperature, this would take the climate outside of the range of observations which have been made over the last several hundred thousand years’’
However Schellnhuber was further pre-empted by the WMO/ICSU/UNEP Advisory Group on Greenhouse Gases, AGGG – (Rijsberman and Swart 1990).
Twenty five years ago, the AGGG report claimed that a 2 degree increase was ‘‘an upper limit beyond which the risks of grave damage to ecosystems, and of non-linear responses, are expected to increase rapidly’’
Robin Guenier makes a very valid case. It is policy issues that matter not scientific issues.
He then makes a near total rebuttal of mitigation policy. Global GHG emissions cannot be reduced when countries responsible to 70% of those emissions are excluded from the policy for (the very valid and accepted within the UNFCCC framework) reason of eradication of poverty. It is actually worse than that. Developing countries are mostly increasing their emissions and some will continue to do so for decades to come. A short-term indication of the problem can be found from the country submissions to the UNFCCC for COP21 in Paris.
http://www4.unfccc.int/submissions/indc/Submission%20Pages/submissions.aspx
I have been going through some of the submissions, to calculate the projected change in GHG emissions from 2010 to 2030. The IPCC estimates in 2010 global emissions from all sources were 49 GtCO2, which (they claim) needs to start trending downwards to avert dangerous climate change. The combined submissions from the Australia, Canada, EU, Japan and USA are to reduce their emissions by 4 GtCO2. The combined submissions from Mexico, China, Indonesia, Turkey, India, Bangladesh and Vietnam are to increase emissions by over 12 GtCO2. Countries are going to sign up to an agreement believing it will save the world from over 2 degrees of warming, when every unit of tonne of CO2 equivalent GHG reduced somewhere in the developed world will be replaced by at least 3 tonnes elsewhere.
You commented on my post on Bishop Hill noting that the ‘scotching’ remark did not appear in the transcript of Sand’s speech. It’s wonderful to see a conclusion I had reached from first principles supported by such a thorough forensic analysis. I am sure Sands is an able and intelligent lawyer but his speech stands I think as a classic example of how a passionately held belief can corrupt a person’s reasoning leading to tenuous and unsustainable conclusions.
This entire affair is appalling to me and a real low point in the climate debate, especially when I thought we were making some inroads and more alarmists were becoming luke-warmers (even if they can’t admit it and claim disingenuously that sceptics instead have become more alarmist!)
I’ve got into certain fisking habits now on this issue as there is so much willful disingenuity to wade through before getting to the meat in most cases. Whilst I need to give it a more thorough read, two things jumped out immediately in Sands’ talk:
– He claims “I quote from the 2014 Synthesis Report:”. No he doesn’t. As far as I can tell he just lifts the most alarming sentences he can find from this two page document:
Click to access ar5_syr_headlines_en.pdf
I doubt he’s read much further. If he had – even outside of WG1 and into what I consider the ‘speculative’ Working Groups – he would have seen the litany of caveats, uncertainties etc etc. Just being made aware of their sheer volume in the IPCC report(s) is enough to give a lot of people pause, I find.
– A substantial proportion of Sands’ certitude is delivered via the words the IPCC disingenuously apply their own special meanings to. I think it is important to regularly remind people of this, especially if and when this is to be hardened into legal force somehow.
“Irreversible” and “Abrupt” for example, in IPCC speak don’t mean what most people take them to mean:
http://joannenova.com.au/2013/10/ipcc-says-abrupt-irreversible-clathrate-methane-ice-sheet-collapse-are-unlikely-or-unknown/
Two thoughts strike me at this point.
One is the strange tendency of people in a job which is not primarily connected with research to defer to anyone who claims that he is in the business of research. This is an unusual way of expressing this thought – it is more commonly expressed as ‘non-scientists defer to scientists over scientific questions’.
To my mind there is no such thing as a ‘scientist’. ‘Scientific Enquiry’ is a mode of thought, first enunciated by Richard Bacon in the 1200s, and, in simple terms, involves making a hypothesis and testing this against observation. ALL of us do this at some point in our lives, and at that point ALL of us could be said to be ‘scientists’. There is nothing terribly special about it – it just happens to be an effective way of deriving general rules which apply to natural phenomena. And it is available to everybody. Yet we have reached a position where many people are willing to close their minds down completely and unquestioningly accept a statement from someone who ‘claims to be a scientist’. This abdication of natural human curiosity signals a complete collapse of the ongoing process of inquiry which has served us so well over the last several hundred years.
Of course, someone who has studied a field for a long time can be expected to have greater knowledge of it than someone who is new to it, and it might be reasonable to defer to them when, perhaps, we need a rapid answer. But, and here is my second point, when someone really knows their field, they are invariably able to explain why it is that they have come to a particular conclusion to a reasonably intelligent but less informed bystander. Though few readers here will be regularly working in the field of quantum mechanics, we can all recall the demonstrations of the wave/particle duality we saw in science classrooms in school which drives our current understanding of the odd rules which apply at small scales.
When I ask for the same explanation of the threat CO2 poses from ‘climate scientists’, I do not get a similar simple explanation that gives me confidence in their assertions. Instead, I get smoke and mirrors, and assertions reminiscent of a car salesman. I try to apply scientific method by looking for the predicted tropospheric hot-spot – I am told that all the heat has gone into the ocean where we can’t measure it, or that while temperature probes can’t find it you can infer that it must be there from statistical examination of wind-speeds – particularly if you add unspecified and unjustifiable corrections to your data. The ‘pause’ in global temperature measurement illustrates another prediction which has failed to materialise. In fact, NONE of the AGW predictions have been borne out, including the vastly expensive proposals for alternative energy sources, and I cannot see why anyone should by a used car from these people.
And yet people do. The best explanation I have for this apparent disconnect comes from Charles Mackay’s excellent 1841 book “Extraordinary Popular Delusions and the Madness of Crowds”….
Given that we are discussing the ‘Law and Climate Change’ I am particularly struck by the absence of references to precedent. A bunch of scientists were prosecuted in Italy for failing to provide adequate warning of an impending earthquake. I am not sure what the eventual outcome was, but I am convinced that a lot of the alarmism argument comes from ‘precautionary principle’. In other words, the ‘we told you so but you didn’t listen, so you can’t blame us’ field,. However, given that the ‘predicted catastrophes’ aren’t due to happen for several decades, many of them will be long dead, so why?
Excellent piece by Robin. By the way, I’ve now transcribed the introduction by Lord Carnwath to Philippe Sands’ lecture, and will add more when time allows:
https://sites.google.com/site/mytranscriptbox/2015/20150917_sc
There’s a post on this at BH: http://www.bishop-hill.net/blog/2015/10/10/guenier-on-sands.html#comments
The basis of law is consent by the people.
We are the people – and they can waffle all they like, huff and puff, wring their hands in angst at us sceptics, but the history the law, shows that law that loses its credibility with the people will be held in contempt by the people.
Apologies for slow comment approval today.
We are witnessing some
pompous oafs‘wigs’ who have ideas way above their pay grade.Aka , senior UK Judges playing with, deliberating on peoples lives via some legal puffery. Aye PUFFERY; it is a confection involving conjectural supposition relating to as yet unproven computer generated climate model hypothesizing – these legal and even self appointed climate guardians were not set to this task by the UNITED KINGDOM LEGISLATURE and never should they be,
These ‘senior’ judges seek to place restriction on all Brits shackling us onto the vehicle of man made CO² emissions limitation jiggery pokery and by attempting a sort of land grab in which they have absolutely [unprecedented] no business. Risible – yeah it gets worse, Sands et al, wants to facilitate all of this guff through and by referral to some quasi UN appointed court [ICJ] which is replete with shills who, apart from the one Brit – one conversant in Roman Tort and the others who know not a lot about not much: not least – including statute and jurisprudence.
UN?
A corrupt organization so bent it placed with a British nod btw and no doubt all the FCO’s doing [Philip Hammond gone native], placing those well known adherents of justice and liberty Saudi Arabia, up on the human rights committee, some very unfunny joke there surely. ………Give me strength – we should shout it: there is nothing we need to refer to the UN that we cannot do infinitely better ourselves. Particularly and pertinently, when it comes to drafting, legislating and presiding over the law and justice pertaining to the peoples residing in the UK.
Who voted for Sands, indeed, who put a cross next to Carnwath?
In fact…………………….who ever gets to vote for the UN, certainly not me nor does any other of my fellow islanders.
And one last thought – the US does not recognize the jurisdiction of the ICJ.
The question I always find worth asking, when certain groups propose extending their powers, is “will they stop once they have achieved this aim?”
Or having tasted the fruits of victory, will they decide that they should rule on other matters of science?
Lord Stern’s (faulty) economics?
The prospects for nuclear power?
Link between IQ and race?
Genetic basis of homosexuality?
Gender identity?
The list goes on ….
If Sands gets his way, he will achieve the distinction of being the most expensive lawyer of all time.
Paul: you say – “No response yet from the learned professor himself.” Not quite true:
I sent my notes to Professor Sands, inviting him to comment – copied to Professor Liz Fisher, Professor of Environmental Law at Oxford and one of the organisers of the symposium. Both have replied.
Here’s his: “Thank you very much indeed for getting in touch. I am a strong believer in competition amongst ideas, and welcome yours in that spirit. Best PS”
And her’s: “Dear Robin Thank you for these. I am glad you found the lecture stimulating. Yours Liz”
They don’t seem over-interested in debate.