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Accepted Paper:

Consistency with the Paris Agreement: African Gas in UK Courts  
Kim Bouwer (University of Durham)

Paper short abstract:

This paper considers the role UK courts play when making decisions that affect natural resource - especially gas - extraction in African countries. It examines recent caselaw in particular questioning what 'consistent with the Paris Agreement' could be taken to mean in transnational litigation.

Paper long abstract:

I will focus on the recent R(oao )Friends of the Earth v UKEF) in which FOE challenged the award of export funding on public law grounds, essentially because they said that the project and funding for it were not consistent with the Paris Agreement. This case is a natural descendant of the recent wave of UK climate litigation which has focused on public law challenges to development consent, but of course very different in that relates to provision of finance. It raises very similar issues in relation to the climate change assessment that was conducted by the decision-maker and whether it was lawful to do so without assessing Scope 3 emissions. The decision of the court showed nuance when it came to the question of what it meant to be consistent with the Paris Agreement, but it is difficult to see how funding decisions will be made in the future that don’t undermine principles of CBDR-RC. I will make some secondary observations about the fossil fuel litigation in Okpabi v Shell litigation in which a preliminary hearing was decided in London in 2021 following Vedanta v Lungowe in 2019. I would frame this as climate litigation and will draw on previously published work in questioning how the English courts might be said to deliver ‘justice’ in relation to harms caused by fossil fuel companies abroad.

Panel Law03
Environmental and climate rights in Africa: what happens when courts have a say
  Session 1 Friday 2 June, 2023, -