Anti-fossil fuel norms

The article identifies the emergence of ‘anti-fossil fuel norms’ (AFFNs), such as norms proscribing new fossil fuel projects/infrastructure, and the fossil fuel divestment norm, as a promising new frontier in national and international climate governance. 

The article considers two channels by which AFFNs are most likely to spread through the international system: domestic political mobilisation (social movements and NGOs champion such norms and advocate for domestic climate policies that would instantiate them) and international socialization (peer pressure among states). It observes that these channels are central to the political logic assumed in the Paris Agreement, which does not bind states to achieve individual climate mitigation targets that are collectively sufficient to reach the Agreement’s collective goals of limiting global warming to well below 2°C, but rather assumes that domestic developments and international pressure will prompt states to gradually increase the ambition of their goals and policies over time.  

The article hypothesises that AFFNs will follow a norm diffusion pattern among states through the rising social costs of non-adoption, i.e. as more and more states adopt a norm, they incur more opprobrium from other states (which can also have flow-on material costs). Moreover, AFFNs are likely to have positive (reinforcing) feedback effects within civil society, providing a focal point around which civil society can mobilise and a benchmark against which climate laggards can be held accountable. This highlights how actions by a single government or court to restrict or reduce fossil fuel supply (e.g. a rejection of a new coalmine) not only have partially negative (counteracting) feedback effects via the price mechanism (i.e. some degree of leakage / market substitution) but also have positive (reinforcing) feedback effects via social, political and legal channels. (Note: while the latter effects are difficult to measure and predict, that does not mean that they won’t occur; as such, they are relevant factors to consider in any analysis of the consequences of licensing/permitting decisions.) 

Accordingly, the article may be useful in response to carbon leakage and market substitution arguments that assume that price effects are the only consequences of a licensing/permitting decision. Whatever the price effect may be, rejecting the fossil fuel project could (also) strengthen a national and international norm against permitting new fossil fuel projects and thereby encourage other states to similarly refuse new projects. This complicates industry claims about the net effect on global greenhouse gas emissions of the project (or the project’s rejection).

For arguments and findings on these points, see paras 535-540 in Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7.

See also section 4 of the “Expert Letter: Market substitution and related issues” by Erickson et al. submitted by Milieudefensie as part of its response to Shell’s appeal of the Hague District Court ruling in Milieudefensie v Royal Dutch Shell PLC ECLI:NL:RBDHA:2021:5339, Hague District Court, Decision of May 26, 2021.