Welcome Remarks by ADB President Takehiko Nakao at the Third Asian Judges Symposium on Law, Policy, and Climate Change on 26 September 2016 in Manila, Philippines
The Honorable Maria Lourdes Sereno, Chief Justice of the Supreme Court of the Philippines; the Honorable Loren Legarda, Senator of the Philippines; Honorable Chief Justices and judges from 23 countries; Dr. Arnold Kreilhuber from the United Nations Environment Program (UNEP); distinguished guests; ladies and gentlemen:
On behalf of the Asian Development Bank (ADB), I warmly welcome you to the Third Asian Judges Symposium on Law, Policy, and Climate Change. I would like to sincerely thank our partners—UNEP and the Supreme Court of the Philippines—for their joint support in organizing this Symposium.
We already gained from the First and Second Asian Judges Symposium on Environment. Based on the request from the participants at the First Symposium, ADB supported the establishment of the Asian Judges Network on Environment (AJNE). It has brought together judges, prosecutors, other legal experts, environment ministry officials, and civil society representatives from 23 countries in Asia and the Pacific.
To set the stage for discussions over the next two days, I would like to talk about (i) climate challenges in Asia and the Pacific, (ii) global responses for adaptation and mitigation, (iii) ADB’s commitment, and (iv) the judiciary’s important role in addressing climate change.
Climate challenges in Asia and the Pacific
Climate challenges in Asia and the Pacific are significant even compared to other regions of the world. Asia and the Pacific is home to 4 billion people, and 450 million are still suffering from absolute poverty, which constitutes two-thirds of the world’s poor. And the 2016 report of Germanwatch on the Long-term Climate Risk Index listed Myanmar, Philippines, Bangladesh, Viet Nam, Pakistan, and Thailand among the top ten countries affected by climate change. Poorer people tend to suffer more.
We have seen many devastating effects of climate change in 2016, alone. Indonesia faced unprecedented forest fires. Thailand and Malaysia rationed water. Cambodia experienced its worst drought in 50 years. India and Pakistan suffered an intense and deadly heat wave. The Solomon Islands lost five islands due to erosion and rising sea levels. Viet Nam is increasingly being affected by salt water intrusion that severely impacts agriculture.
It is projected that warming will cause an 11% loss in annual gross domestic product (GDP) in Southeast Asia by 2100 if no action is taken to deal with climate change. South Asia will forego 8.8% of its annual GDP. These economic perils highlight the nexus between climate change, sustainable development, and poverty alleviation.
Global responses to climate change
Recently, the global community has made increasing efforts to address climate change. In March 2015, world leaders adopted the Sendai Framework for Disaster Risk Reduction, which recognizes the need to address climate change as one of the drivers of disaster risks. In September 2015, in New York, leaders adopted the Sustainable Development Goals, which aim to end poverty, improve health and education, make cities more sustainable, and combat climate change.
This was followed by the COP21 Paris Agreement in late 2015, in which world leaders pledged to restrict warming to well below 2ºC and to pursue efforts to reach 1.5ºC. Five days ago, on the occasion of the high-level event convened by the United Nations Secretary-General in New York, 31 states deposited their instruments of ratification or acceptance. We now have already 60 parties, representing 47.76% of global greenhouse gas (GHG) emissions, that have ratified. It edges us very close to meeting the required 55% of emissions for the Paris Agreement to enter into force.
At the heart of this global effort lies a simple truth: economic growth and climate actions are not mutually exclusive, but rather mutually reinforcing.
ADB’s commitment to address climate challenges
ADB is an important part of global actions to effectively address climate challenges. ADB can play a key role in Asia and the Pacific in the following five areas.
First, about ADB’s financing operations. ADB is doubling its climate financing for both mitigation and adaptation from the current $3 billion to $6 billion annually by 2020, amounting to approximately 30% of total operations from its own resources. Of the $6 billion, $4 billion will support mitigation with advanced technologies, such as renewable energy, sustainable transport, and energy efficiency. $2 billion will be for adaptation through more resilient infrastructure, climate-smart agriculture, and better preparation for climate-related disasters.
To help finance ADB’s climate operations, ADB issued its first green bond last year. This 10-year AAA green bond was purchased by a wide range of investors, such as central banks, commercial banks, pension funds, and insurance companies from across the world.
Second, partnership with multilateral and bilateral partners. ADB is pursuing cofinancing opportunities with them. We are the first multilateral development bank accredited to receive financing from the Green Climate Fund (GCF), established in the Republic of Korea under the UN umbrella. ADB used the first grant from the GCF to make Fiji’s urban water projects more resilient to rising sea levels.
Third, collaboration with the private sector is essential. We are providing loans and equity investments to private companies in many of our member countries in such areas as renewable energy and energy efficiency. We are also expanding innovative approaches. In 2014, ADB launched Asia Climate Partners, a $400 million joint venture with private sector financiers to invest in climate-friendly companies and transactions. ADB also helped guarantee the first certified climate bond in Asia, issued by a Philippine private company earlier this year for a geothermal project.
Fourth, about national policies. ADB is enhancing its support to governments’ policy frameworks for implementing their Intended Nationally Determined Contributions (INDCs) based on the Paris Agreement. For this purpose, we are using a mix of technical assistance, loans and grants, and high-level policy dialogue. An example of ADB support is our first policy-based loan to the PRC of $300 million approved last year. This supports policies on air quality improvement in the Beijing-Tianjin-Hebei greater capital area.
Fifth, ADB aims to become a true “knowledge bank.” Through our reorganization, ADB established the Sustainable Development and Climate Change Department. A newly-created specific thematic group dedicated to climate change is building and sharing knowledge within ADB, and enhancing cooperation with partners. ADB is strengthening partnerships with multilateral and bilateral development agencies, the private sector, academia, civil society organizations, and centers of excellence around the world. ADB is establishing a Regional Climate Projections Consortium and Data Facility to share data and knowledge for climate challenges and actions in Asia and the Pacific.
"As more climate change legislation and regulations proliferate following new treaty agreements, I trust that more litigation will occur and more climate change law will develop. Regional collaboration for knowledge sharing and capacity building among the legal profession is becoming critical."
The judiciary’s important role in addressing climate challenges
Let me now move to the next and most important topic of today: the increasingly important role of judiciaries in addressing climate challenges.
We have good precedents in the area of the environment. Over years, judiciaries have developed environmental jurisprudence and established environmental courts. They lead the legal profession and citizens in building credible environmental justice.
In combatting environment challenges, judiciaries have not only been reactive; they are proactively bringing changes. For example, courts have used the principle of “liability without fault” to hold companies liable for environmental pollution even if the plaintiff could not scientifically prove strict causality. Case rulings have not just given remedies to plaintiffs; they have spurred actions by governments and private companies as well.
Now, jurisdictions are requested to play an equally important role to combat climate challenges. Building on environment experiences, our judicial systems should help transform national climate actions to meet the global climate agenda.
Given the transboundary nature of climate challenges, cases involving emissions and waste disposal will have more than purely domestic consequences. Localized environmental law grievances will enter the global domain. Judges should examine domestic environmental cases through a lens of global climate change. This may imply that, based on broader impact assessment, judges may have to impose more serious remedies and severe penalties.
In fact, according to a study by the Sabin Center for Climate Change at Columbia Law School and our own research, there have already been more than 500 climate change litigation cases in the US and about 200 cases in the rest of the world. Most cases involve private plaintiffs against governments.
There are several categories of such climate change cases. The first category is claims by individuals and civil society organizations (CSOs) concerning whether and how planning and environmental authorities should consider the effect of climate change on proposed projects through environmental impact assessments, and the adequacy of such assessments. The second category is claims by private industry plaintiffs against government, challenging climate change laws and regulations to limit emissions. The third category is litigation involving claims arising from emissions trading systems (ETS), particularly the European Union ETS.
In a recent important case in Pakistan, the public requested the enforcement of the National Climate Change Policy. The court has directed the government to implement time-bound adaptation actions under the supervision of a court-appointed commission consisting of all relevant stakeholders.
In another case brought by a CSO in the Netherlands just prior to COP21, a court in The Hague ordered the Dutch government to reduce its GHG emissions by 25% from 1990 levels in the next five years, instead of 14-17% reduction the government had been planning to make.
Wind energy projects provide another notable example of climate litigation. In such cases, judges usually balance local landscape impacts against the positive impacts of increased renewable energy and reduced emissions. So far, courts have deferred to the discretion of authorities which issued permits for wind energy projects, except where they have acted arbitrarily or have clearly violated procedures.
As more climate change legislation and regulations proliferate following new treaty commitments, I trust that more litigation will occur and more climate change case law will develop.
There are also climate-change-related cases regarding cross-border issues and international law. In a recent case in New Zealand, a Kiribati citizen sought refugee status due to climate change impacts. The court found that the circumstances did not qualify the applicant for refugee status under the 1951 UN Convention Relating to the Status of Refugees. However, it should be noted that the current trend on this issue is moving towards broadening the definition of “refugee.”
In concluding, I would like to emphasize that judicial systems have been always a major force in shaping civilizations. They are about protecting rights of citizens, providing rules-based governance, and setting a basis for market activities through civil, commercial, and corporate laws.
As I said earlier, the judiciary is not merely reactive. It is a driver of changes—changes in ideas, in people’s behavior, and in the way society collectively addresses the challenges it faces.
We should use the collective wisdom of national judiciaries to strengthen global climate actions. Regional collaboration for knowledge sharing and capacity building among the legal profession is becoming critical.
I look forward to active and constructive discussions over the next two days.