22 March 2022
By Professor Sanja Bogojević, Professor of Law, Faculty of Law and Lady Margaret Hall, University of Oxford
The future is rosy. This is the warm-bath type of message delivered by the UK’s Net Zero Strategy. In 2050, the Strategy assures us, ‘we will still be driving cars, flying planes and heating our homes, but our cars will be electric gliding silently around our cities, our planes will be zero emission allowing us to fly guilt-free.’ Climate neutrality, we are comforted to read, will be met without our having to ‘sacrifice the things we love’ or by creating ‘winners and losers’, contrary to what scholars have warned. One of the reasons offered by the Strategy for this bright future is battery-powered transportation.
A ‘sustainable future’ that depends on battery-driven transportation, David Abraham explains relies on a short list of rare materials, including lithium. It is a key component of the lithium-ion battery, the development of which was awarded the Nobel Prize in Chemistry in 2019 for its use ‘in everything from mobile phones to laptops and electric vehicles. It can also store significant amounts of energy from solar and wind power, making possible a fossil fuel-free society.’ It comes as no surprise, then, that the UK government labels lithium a ‘critical mineral’ vital ‘for the well-being of the country’, or that it is commonly referred to as ‘white gold’. While lithium reserves are not scarce, its global production is traceable to only a handful of countries, including Australia, Chile, China and Argentina and, as demand for this precious mineral is estimated to increase by nearly 500% by 2050, accessing lithium has become a strategic security question, not only for the UK, which is scheduled to publish its Critical Minerals Strategy later this year, but also for the European Union. This has set off a race to open lithium mines in Europe, with projects at different stages of development in Austria, the Czech Republic, Finland, Portugal, Spain, and Serbia.
The discovery of lithium in Serbia was led by Rio Tinto, the Anglo-Australian mining venture conglomerate. It had already zoomed in on the Jadar valley in western Serbia in 2004, when it was first issued an exploration permit. It recognised the region’s potential for becoming ‘one of the largest greenfield lithium projects in the world’, which would ultimately crown Rio Tinto ‘one of the top lithium producers in the world’. In 2018, and frequently thereafter, the Serbian government proclaimed the Jadar project to be of ‘exceptional importance’ and, in February 2020, it approved continued exploitation, as well as the processing of jadarite mineral, a source of lithium. In November 2021, the Serbian National Assembly, whose ruling party – the Serbian Progressive Party – is the political home of the populist President, Alexandar Vučić, introduced a series of amendments to the Law on Expropriation. These were understood to allow foreign companies, such as Rio Tinto, to exploit mineral resources with limited opposition from local communities. According to the Serbian Constitution, private property may be expropriated only in the ‘public interest’, as established by the law and with compensation not below market value. The Amendments extended the notion of ‘public interest’ to projects of ‘special importance’, without further specifications of what could be covered under that heading. Significantly, and in line with the Serbian Planning and Building Act, the executive branch would enjoy the discretion of identifying such projects without any further criteria stipulated. With the increase in mining companies’ interest in Serbia, the worry is that international agreements between the Serbian government and foreign companies would readily be deemed of ‘special importance’, leaving landowners exposed to foreign private investors’ demand for land in their mining endeavours. The proposed amendments were met with mass protests in Belgrade and across Serbia, and facing general elections later this year, the Serbian government decided to revoke the mining company’s licenses and to hold a referendum on the future of Rio Tinto’s presence in Serbia after polling day. Similarly, the amendments to the Law on Expropriation were withdrawn.
Why is this (abbreviated) story relevant in thinking about climate change and the rule of law? In short, it shows that net zero futures are not straightforward and may lead to conflicts that endanger the rule of law. The stakeholders in these conflicts – as in climate change itself – are polycentric, and so the UK Net Zero Strategy will come at an environmental cost (as well as other costs), even if not on British shores, and risks fuelling new forms of populist instability. As I have argued previously, populist politics insist on upholding ‘formal and procedural’ ideals, but under scrutiny, undercurrents of rule-of-law erosion are prevalent. The proposed amendments to Serbia’s Law on Expropriation provide one example, alongside other transparency issues related to environmental impact assessments of foreign mining investments elsewhere in Serbia.
Traditionally, the close link between populist parties and climate scepticism has been obvious. The narrative of populists, however, is changing. This is not to say that populist parties have altered their course on climate change, but they have found ways to blend it into their own political message. As Catherine Fieschi notes, climate change fits neatly within the populist narrative of the ‘pure people’ versus the ‘corrupt elite’, which populists are using to declare that ‘“We’re not just going to protect you from climate change…We’re going to protect you from an elite that doesn’t give a damn about the cost that climate policy is going to take on you.”’ The change of populist narrative maps well onto the recent Jadar experience. In withdrawing Rio Tinto’s permits, the government was insistent that it had done so on its own accord, and in order to hand back the question to ‘the people’ in an upcoming referendum. It underlined that it was not responding to the demonstrators, whom they branded as politically motivated, and that it was instead the government – not environmental NGOs – that would ensure that environmental safeguards are upheld. As Jan-Werner Müller, any opposition, whether institutional or from within civil society, represents a difficulty for populists, as it undermines their claim to being the sole representatives of the people.
Navigating climate-related narratives in populist environments is tricky. In investigating ‘who were the gilets jaunes?’, Jeremy Harding found an eclectic group rallied around an equally multisided agenda under the broader agenda of anti-fuel charges. Battling out climate disputes ‘on the streets’ leaves limited guidance as to which legal arguments are advanced, how disputes are conceptualised, and how these are ultimately resolved. After all, Rio Tinto’s revoked permits were interpreted by some as retaliation by the Serbian government for the decision by the Australian Prime Minister to revoke tennis player Novak Djoković’s visa ahead of the 2022 Australian Open. This starkly illustrates that we need to be mindful about how conflicts arising from Net Zero Strategies are resolved, and by whom.
The examples mentioned here are Serbia-specific, but they are not exclusive to the Balkans. Lithium-mining projects, currently underway in Finland, Spain, the Czech Republic and Portugal all raise questions of environmental costs carried by local communities as a consequence of battery-centred climate strategies. The future may indeed be rosy, but not for everyone everywhere.