Immediate policy reform is needed to stop the fossil industry from using anti-competition laws to thwart corporate climate action, says an Oxford University public policy expert who recently had to lawyer-proof his advisory group’s guidance on the climate risks of coal.
“It’s not every day that professors are told they risk breaking the law for articulating basic scientific facts,” writes Thomas Hale, professor of global public policy at Oxford’s Blavatnik School of Government and co-chair of the Race to Zero Campaign’s expert peer review group, in a post for Climate Home News.
“But that’s the reality of giving expert advice in the deepening climate crisis,” Hale adds, with capitalism becoming a “battlefield” where fossil interest groups, especially coal, fight tooth and nail for their survival against corporate net-zero targets.
Race to Zero, a United Nations-backed initiative that commits companies, banks, asset managers, cities, and others to rigorous, science-based net-zero-by-2050 targets, recently experienced one weapon fossils have started using as pushback to climate action. Anti-competition laws, known as antitrust law in the United States, is a body of jurisprudence that prevents anti-competition activities like price fixing and cartels.
Race to Zero advisors received independent legal advice that some wording in a technical set of “rules of thumb” they published could potentially be construed as violating anti-competition laws, writes Hale.
“The offence? Simply being explicit that expanding coal production is not a part of any credible scientific scenarios to achieving the goals of the Paris Agreement.”
While it altered its phrasing to avoid the remotest possibility of legal action, the Race to Zero Campaign is determined that all “members of the net-zero financial sector alliances must identify and end any financing and investing in support of new coal activities.”
But not everyone is so resolute—and lawyers wielding threats of anti-competition litigation are part of the mix.
The penalty for failing to cut out coal is expulsion from Race to Zero. But one of the campaign’s key partners, the Net-Zero Insurance Alliance (NZIA), is currently refusing to demand that its members—including industry giants AXA and Munich Re—stop underwriting coal. NZIA chair Renaud Guidée told the Financial Times in July that “the group had been informed by lawyers that this sort of co-ordinated industry action could be deemed illegal by competition authorities.”
And these aren’t just any old lawyers. The Times says that guidance is “based on unpublished legal advice from law firms including Norton Rose Fullbright, which, alongside its work for many other business sectors, also has a large oil and gas legal practice.”
Race to Zero lead Nigel Topping said Guidée’s account of anti-competition law “sounds very surprising to me given the extent of industrial collaboration we are seeing in sector after sector as part of Race to Zero.”
Alex Michie, a top official at the Glasgow Financial Alliance for Net Zero, told the Times that alliances like NZIA and GFANZ itself “are stepping into a space that public policy—governments—should be filling.” But “public policy has not filled it, and it hasn’t filled it for decades,” he added.
Hale agrees. “The fact that anti-competition law, created to safeguard the public interest, could be manipulated to work against it, shows the need for urgent reform,” he writes. “Credible voluntary action builds momentum for these changes, but regulators need to step up.”