By E.M. Taqueban
The international climate negotiations held every year are organized around three major pillars. Mitigation refers to reducing carbon emissions and shifting away from fossil fuels to renewable energy sources. Adaptation broadly refers to the preparation for climate impacts, such as investing in drought-resistant rice varieties, flood control, etc. The third pillar, loss and damage, refers to responding to large-scale climate impacts beyond the ambit of adaptation. While mitigation and adaptation are well-known streams of the climate talks, it took activists and leaders from the global South over a decade to get loss and damage on the map.
Climate loss and damage has two defining attributes: inevitability and irreversibility. Developing nations are experiencing high economic and non-economic damages and losses from climate impacts. When we refer to "loss and damage” this means the severe consequences of the climate crisis that are beyond the ability of people to prepare for and adapt to. Climate loss and damage is important for a country like the Philippines, which ranks as the most disaster-prone country globally, according to the recent World Risk Index.
A direct result of the negotiations for loss and damage is the creation of the Fund for Responding to Loss and Damage (FRLD), which receives all the financial pledges from rich nations to help climate-vulnerable nations deal with climate loss and damage.
The Philippines hosts the Board which oversees the FRLD; the Board is meeting in Manila from 2 to 5 December 2024 to discuss the operationalization of the fund. The FRLD has an initial commitment of $700 million, from pledges from rich nations. This amount is but a drop of the annual $300 billion needed to account for loss and damage suffered by climate-vulnerable countries according to United Nations estimates, at least until 2030 (2022).
While the FRLD is anticipated to be mostly through grants, the disbursement will also be through concessional financing. In another study by the UN, current high financing costs for climate adaptation is already “driving unsustainable national debt burdens” (2023). The Philippines is already severely indebted with 15.18 trillion pesos or $269.2 billion in 2024.
Precisely to augment funds as well as to emphasize accountability, local groups Legal Rights and Natural Resources Center (LRC)-Friends of the Earth Philippines and Greenpeace Philippines are pushing for a national law that will hold accountable companies that continue to emit large greenhouse gasses (GHGs) amid the urgency to phase out fossil fuels.
The climate accountability (CLIMA) bill is a potential world-first for a country (the state of Vermont has passed a similar legal framework). CLIMA will make carbon majors liable when they breach a set threshold for greenhouse gas emissions. Currently, 8 million tons C02e annually is considered the threshold. Under CLIMA, greenwashing and climate denialism are considered violative and will be subject to fines.
The penalties will accrue to a Climate Change Reparations Fund (CCRF). Under the ongoing negotiations for loss and damage, rich nations refuse the language of reparation or compensation—or framing the climate crisis as the handiwork of the historical emissions of rich nations, as this will open them to lawsuits. As such the LDRF will accept pledges but will not compel rich nations to accept, much less pay, for reparations. Similar terms such as compensation and liability are anathemas.
While the CCRF can be the mechanism through which grants from the LDRF can be funneled into, the CCRF shall not abandon the language of reparation. In fact, the LDRF ought to follow in the footsteps of CLIMA and frame loss and damage under the paradigm of obligation, not voluntary pledges. Faced with a climate crisis, what is urgently needed is an Obligation of Results rather than just an Obligation of Means, meaning what we need to halt the climate crisis is not simply for corporations to do their best to cut down carbon emissions through self-regulation via voluntary guidelines but through mandatory guarantees that they achieve the result of cutting down emissions.
Carbon majors are wary that CLIMA is punitive and will put them at a competitive disadvantage. It is hardly so, the chief responsibility is around due diligence and a “duty of care”, where a company takes proactive steps in measuring their emissions, submitting climate disclosures and ensuring that their businesses do not harm the environment.
CLIMA’s intention is to ensure that corporations adopt behavior change in their business practices translating corporate social responsibility, as corporations are wont to advertise, to actual accountability. It simply ensures that they walk the talk. CLIMA provides a ceiling and is only set off if there is a breach. Financial compensation and litigation are precisely what major polluters are trying to avoid, but which are essential aspects of climate justice. As has been said, “to address loss and damage is not charity – it is climate justice.”
In a statement published at the opening of the 29th Conference of Parties (COP29), in Baku, Azerbaijan, United Nations Special Rapporteur on the Right to Development Prof. Surya Deva said, “As climate change-related loss and damage undermines the right to development and other human rights of individuals and communities, loss and damage should be treated as part of the remediation pillar of climate justice. Remediation in the context of climate change should be interpreted in the sense of full reparation, comprising restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.”
Despite the climate crisis having been established as anthropogenic and alarming prognoses of devastation are being forecast by scientists and economist, carbon majors continue to invest in fossil fuels.
Without real consequences of compensation and litigation, corporations will have no incentive against sacrificing people and the planet for profit. As Filipinos have recently seen in a spate of typhoons submerging entire towns and visiting damage on property, infrastructure and agriculture, climate loss and damage is a real and present danger that can no longer be denied.
Atty. EM Taqueban is the executive director of the Legal Rights and Natural Resources Center -Friends of the Earth Philippines (LRC-FoE Ph). She teaches Anthropology at the Department of Anthropology, University of the Philippines in Diliman.
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