Bridging the gap between climate scenarios and law - a roadmap for mutual contributions

To bridge the knowledge gap between climate scenarios and law, this presentation is aimed to demonstrate currently demanded mutual contributions by legal professionals and integrated assessment modellers on 1) how legal knowledge can be integrated into climate scenarios and 2) how scientific evidence generated from climate scenarios can better guide climate litigation cases. We expect that this could support judges in making trade-offs in climate-related court cases and could contribute to the acceptance of decisions by judges in such cases. Given the emissions gap and the measures that must be taken to comply with the Paris Agreement, the latter is likely becoming more relevant.

Regarding the first part, the results are based on an empirical research project on Improving the Integration of Legal Knowledge and Scholars in Climate Scenario Assessments (https://www.uu.nl/en/research/sustainability/improving-the-integration-of-legal-knowledge-and-scholars-in-climate-scenario-assessments) and a workshop  (https://www.uu.nl/en/research/sustainability/workshop-report-promoting-the-mutual-understanding-between-legal-and-governance-scholars-and-climate) resulted from this project held in May 2023. Via interviews and focus-group discussions with 24 experts in climate modelling, climate law and politics, and ethics, our research highlights four legal aspects for integration, which are: 1) implementation end enforcement of climate targets, 2) key normative principles, 3) legal uncertainties, and 4) the applicability of scenarios in regional and local legal contexts. Considering the challenges of integration due to epistemic distinctions between disciplines, experts held different opinions on the feasibility of integrating those four aspects. Regarding actionable steps for the short term, revising narratives and a ‘legal reality check’ are the most agreed ones. The former refers to adding legal obligations that safeguard justice, fairness and fundamental human rights - traceable to various treaties - to narratives of the global futures. The latter refers to scrutinising the ‘shared feasibility space’ between law on the one hand and modelled scenarios and emission reduction pathways on the other: it can be the compatibility of legal principles with modelled scenarios based on different assessment criteria (e.g. fair share of burdens), or to compare scenarios with and without regulatory boundary conditions in a specific jurisdiction on a specific mitigation solution (e.g. BECCS scenarios).

Regarding the second part, the currently ongoing research focuses on the adoption of authoritative scientific evidence from climate scenarios - typically the projections referred to in the IPCC reports - in climate litigation cases. First, inspired by the Daubert Criteria, this research explores the possibility of developing guidelines for judges to deal with scientific uncertainties contained in multiple projected futures and determining admissibility of scientific evidence. Second, seeing the increasing reference to ‘open norms’ (e.g. due diligence, fair share) and fundamental human rights (to private life or a healthy environment) in court cases, modelled scenarios could provide information for guiding judges in their interpretation of key concepts such as carbon budgets, fair share, emission gap, appropriate emission reduction obligations, and climate-induced harm and loss and damage. We expect that this could be beneficial to the supportability of judges' decisions in climate cases.