Tag: #oil

How Should Arctic Drilling Be Defined? The 3 Key Problems with Formulating Investment Exclusions

By Zuzanna Lewandowska and Dr. Kristjan Jespersen

◦ 7 min read ◦

Oil and gas development in the Arctic has long been a subject of controversies, due to the vulnerability and pristineness of the arctic ecosystem, as well as the challenges that the region faces because of climate change. In the light of growing pressure from stakeholders, legislators, and the public, an increasing number of banks, insurers, and investors have been committing to restricting financing of arctic drilling. Typically, this is addressed by formally excluding the funding of oil and gas development in the Arctic from the firm’s investment universe. 

However, several key issues with the current formulations of financial actors’ investment exclusions, make the restrictions potentially ineffective in curbing oil and gas expansion in the Arctic. Firstly, the exclusions typically apply only to financing and coverage, allowing for unrestricted provision of corporate support. Secondly, imprecise financial proxies are used to specify the activity levels at which an exclusion should be applied. For example, exclusions are often based on a revenue threshold, which does not cover early-stage exploration activities that typically do not generate revenue. Lastly, most restriction policies do not refer to a specific definition of the Arctic, which allows for the use of a case-by-case approach when making financing decisions. Where a definition of the Arctic is used, justification is rarely provided for why a specific exclusion zone had been chosen.  

Arctic restriction policies of 10 banks listed among the top supporters of arctic expansionists from 2016 to 2020 (Source: Reclaim Finance, 2021). 
Problem 1: How should the Arctic be defined?

Figure 1 below shows the geographic definitions of the Arctic which arctic restriction policies are most commonly based on. It is evident that they differ significantly in terms of scope. 

Definitions of the Arctic (Source: Nordregio, 2021). 

When choosing which definition of the Arctic to use in their exclusions, financial actors are presented with a difficult choice.

Selecting a wide-reaching exclusion zone, such as the arctic region monitored by the Arctic Monitoring Assessment Programme (AMAP), helps ensure that all assets located in the Arctic are covered. This said, however, such broad exclusions place investors at risk of missing out on profitable investments in ambiguous locations such as the Barents Sea, which has been argued to not be significantly different from the Norwegian sea in terms of oil spill response preparedness or ecosystem vulnerability. This dilemma becomes especially relevant in the context of asset managers’ fiduciary duty. 

At the same time, if the exclusion is based on a definition of the Arctic which is too narrow, the policy is rendered largely ineffective, as it fails to restrict the financing of arctic oil and gas projects which continue to have negative environmental and social impacts. Which definition of the Arctic should be used as basis of a restriction policy, needs to establish based on a nuanced understanding of the geographic distribution of material issues associated with oil and gas development in the area. 

Problem 2: Identifying the negative impacts of arctic drilling

To be able to argue for a targeted exclusion as part of a responsible investment policy, financial actors must credibly prove that the environmental and social impacts of a given activity are particularly dire. Indeed, the discussion is still ongoing as to what extent the documented harmful social and environmental processes in the Arctic can be categorized as by-products of arctic drilling, rather than as cumulative consequences of other activities.  

One of the most common environmental concerns regarding arctic drilling is that it contributes to the melting of the polar ice caps. However, research has found that while black carbon emissions from oil and gas exploration in the Arctic reduce the ice cover’s reflective properties, polar caps are primarily melting due to the increases in global temperatures. As such, one could argue that for an exclusion to significantly tackle the issue of polar ice cap melting, it should extend to investments in all fossil fuel developments worldwide. 

The negative environmental impacts which have been uniquely linked to arctic drilling (e.g., offshore oil spills, black carbon emissions, and biodiversity threats) are notably difficult to capture within a territorial exclusion zone. This is due to the lack of consistent data on their dynamically changing distribution. 

Black carbon emissions in arctic waters in 2015 (Source: ICCT, 2019). 

The issue with addressing the negative social impacts of arctic drilling (e.g., land conflicts, threats to food security) in an exclusion policy, is that similar issues are faced by local and indigenous populations in other vulnerable areas, where oil and gas extraction also takes place, and where investments are not subject to restrictions. Here, a notable example would be the Amazon. 

An additional complication results from the differing perspectives on arctic oil and gas development, with many local stakeholders crediting it with having improved infrastructure and employment opportunities in the region. 

Problem 3: A double materiality perspective – addressing the risks to oil and gas development operations in the Arctic 

From a risk management perspective, a comprehensive investment restriction policy should also account for the unique material risks to profitability of oil and gas projects in the Arctic, which make financing and coverage more volatile. This also falls in line with the double materiality approach to impact assessment. 

The most significant material risks to oil and gas operations which are distinctive to the Arctic are caused by permafrost thawing, sea ice and icebergs, and extreme weather conditions. Similarly to negative environmental impacts, the dynamic nature of these arctic risk factors makes them difficult to capture within a geographic exclusion zone.

The monthly arctic sea ice index for December 2021 (Source: National Snow & Ice Data Center).
What have we learned?

Based on the discussion of the complexities associated with arctic exclusions, it can be concluded that the weakness of key financial actors’ arctic policies is that they deploy ex ante investment restrictions as standalone policy solutions. Arguably, exclusions can be an effective instrument, but only as part of a comprehensive responsible investment strategy, which covers all stages of the investment process and addresses the extensive information needs regarding material issues. 

A well-formulated exclusion can help streamline the pre-investment negative screening process by filtering out investments which:

  1. Have been proven to be associated with unique material risks and negative impacts,
  2. Can be identified with high precision, accounting for the dynamic changes and complexities in the underlying material issues.  

Those of the material risks and impacts which cannot be captured in an exclusion policy should be addressed using other pre-investment (positive and negative screening, information requests and questionnaires) and post-investment (active ownership and thematic engagements) measures.

Such a nuanced approach to policy exclusions could provide a powerful responsible investment tool for financial actors in areas and sectors which require additional due diligence. 

About the Authors

Zuzanna Lewandowska is a student researcher in ESG and Sustainable Investments at Copenhagen Business School. She studies responsible investment strategies and the state of the art of measuring and reporting information on ESG factors. She has a background in international business and strategy, global market intelligence, and policy consulting.

Kristjan Jespersen is an Associate Professor at the Copenhagen Business School. He studies on the growing development and management of Ecosystem Services in developing countries. Within the field, Kristjan focuses his attention on the institutional legitimacy of such initiatives and the overall compensation tools used to ensure compliance.

Photo by Annie Spratt on Unsplash

Like oil and water…. Shell’s climate responsibility and human rights

By Kristian Høyer Toft, PhD

◦ 4 min read ◦

In a landmark verdict at the district court in the Hague on 26th May this year, Royal Dutch Shell lost a case to the Dutch branch of ‘Friends of the Earth’, Milleudefensie, and other NGOs. The court ordered Shell to reduce CO2 emissions by 45% by 2030 against a 2019 baseline. The decision breaks new ground for the possibility of holding private corporations accountable for climate change – Shell-shocked and a Black Wednesday for the fossil fuel industry, according to expert commentators in international environmental law.

The verdict emphasizes the international consensus that corporations like Shell must respect basic human rights, such as the rights to life and family life. In the ruling, human rights are seen in the context of climate change and the aspirational 1.5-degree target stated in the Paris Agreement (2015), scientifically supported by the Intergovernmental Panel on Climate Change (IPCC 2018).

The verdict is a significant example of a general surge in climate litigation cases globally in which human rights are invoked.

Holding a fossil fuel company accountable based on the standard of human rights might sound as futile as the effort to mix oil and water.

And this sort of skepticism has roots in the recent history of attempts to connect business, human rights and climate change in what could be seen as a ‘bizarre triangle’ of irreconcilable corners.

However, the Shell verdict can be seen as a firm rebuttal to such skepticism. The court argued that Shell had violated the standard of care implicit in Dutch law. To clarify the content of the standard of care, the court used the United Nations Guiding Principles (UNGPs) which provide a global standard for businesses’ human rights responsibilities. This is, however, a bold interpretation in light of the UNGPs silence on human rights responsibilities with regard to climate change. 

In fact, human rights might not fit so neatly with the difficult case of climate change. Firstly, it is difficult to trace the causal links between the emitters and the victims of climate change, although this is contested by recent studies that have traced two-thirds of historical emissions to the big oil and gas companies, the so-called carbon majors.

Secondly, human rights basically apply only to the state’s duty to protect citizens, and thus only indirectly to private companies. This state-centric approach is core to the human rights regime and tradition, and the UNGPs uphold this by allocating less stringent responsibilities to non-state actors such as corporations.

However, the UNGPs also state that private companies have human rights responsibilities independently of the state. The district court in the Hague reaffirms this in its ruling against Shell, stating that corporate responsibility “exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. [..] Therefore, it is not enough for companies to [..] follow the measures states take; they have an individual responsibility.” (4.4.13). 

A third source of skepticism resides in understandings of environmental law and the central role of the polluter pays principle. Accordingly, emitters are responsible for their historical output of CO2 as enshrined in the United Nations Framework Convention on Climate Change (UNFCCC 1992), but the scope is usually taken to be limited to the unit of production (scope 1), e.g. the refining of crude oil. The standard view of pollution is local, as for instance when a factory pollutes the local river. 

However, in the Shell ruling scopes 1, 2 and 3 are taken into account, meaning that consumers’ incineration also counts and therefore Shell must take responsibility for consumers’ emissions as well. The consequences of including all three scopes incur far-reaching and demanding responsibilities on corporations, where previously the distribution of responsibilities between producers and consumers has been disputed, for instance in the carbon majors case.

In sum, the Shell verdict raises the bar considerably for the expected level of corporate climate responsibility. The verdict also challenges the assumption that human rights don’t fit the complexity of climate change; though in fact the UNs first resolution on human rights and climate change appeared back in 2008. Moreover, the verdict goes against the widespread liberal assumption that businesses’ responsibilities are mainly to comply with the law of national jurisdictions and that consumers are comparably responsible for causing climate change. 

It might be time to rethink such assumptions and not simply continue ‘business as usual’ by seeing climate change and human rights-based climate litigation as a managerial risk factor to be handled instrumentally and in isolation from the moral duty to solve the climate crisis. 

One key lesson could be to acknowledge that corporate responsibilities are not just legal but moral as well, since the distinction is not so clear in soft law instruments like the UNGPs nor even in the notion of human rights themselves, not to mention the moral demands following from the need to respect and realize the targets of the Paris Agreement and related transition paths.

When the Special Representative to the United Nations on Business and Human Rights, John Ruggie, started exploring pathways for developing the field, he was inspired by the American philosopher Iris Marion Young whose ‘social connection model’ of global responsibility in supply chains suggests a forward-looking kind of responsibility for mitigating structural injustices. Young’s notion of responsibility was designed to solve large-scale structural problems like climate change by attributing responsibility to all agents according to their powers, privileges, collective capacities and level of complicity. 

This is the kind of thinking now supported in the court verdict against Shell, and it signals a new beginning where climate change reconfigures how corporations and human rights connect… perhaps making the ‘oil and water’ metaphor obsolete.

Acknowledgements

Among the many expert commentators, Annalisa Savaresi’s work provided particular inspiration for writing the blog. I am grateful to Florian Wettstein, Sara Seck, Marco Grasso, Ann E Mayer and Säde Hormio who all gave comments to my article ‘Climate change as a business and human rights issue’ published in the Business and Human Rights Journal (2020) 5(1), pp. 1-27. The blogpost is based on the approach of this article. Julie Murray was helpful with proofreading.

About the Author

Kristian Høyer Toft, PhD in Political Science, Aarhus University 2003. During 2020-21 a guest researcher at the CBS Sustainability Centre, Copenhagen Business School. His research focuses on corporate moral agency, political theory of the corporation and climate ethics and is published in Business and Human Rights Journal, Energy Research and Social Science, and in the book Corporate Responsibility and Political Philosophy: Exploring the Social Liberal Corporation (Routledge 2020). 

Photo by Irina Babina on Unsplash