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Climate change

 

This module is about how legal action may help those affected by or vulnerable to climate change (“CC”). Legal actions around climate change have become more common in recent years, and the period of 2015 – 2017 has seen a large number of cases. Not all those have been brought by people concerned by climate change, and not all have been successful. However the law is increasingly a useful tool  to those who consider that the political response to climate by governments and industry is too little and too slow. There is a useful chart of climate change cases produced by Columbia Law School here .

This page given an introductory overview, with key topics addressed in more detail in other pages.

1

Overview

What is Climate Change ?

 CC refers to the changes in climate because of the increase in “mean” or average global temperature which is currently happening and which will continue to happen. This temperature has increased by about 1 ° C in the last 115 years (see here). Weather conditions experienced by people have always varied. But the change in climate is in terms of trends or patterns over a long period. The effects are and will be very different in different places in the world. They are very varied and not limited to increase in temperature. This section of the website is about how legal action can help prevent or lessen climate change itself, and its adverse effects.

There is almost universal acceptance by governments and scientists that CC is happening, will continue to happen and could have very serious effects indeed if not controlled. There is a political and scientific debate about exactly how serious those effects could be and in what circumstances they may happen. The best summary of the scientific consensus is in reports of the IPCC, the international scientific panel on climate change. A summary is here.

Climate change experts use a lot of technical terms or “jargon”. The IPCC has a glossary which explains these. There are two important terms often referred to, which often cause confusion. “Mitigation” means the process of minimising or limiting climate change. “Adaptation” refers to minimising or avoiding the effects of CC by adapting to the changing conditions.

What Causes Climate Change ?

This used to be a subject of intense debate. Now however there is overwhelming consensus among scientists and governments that it is mainly “anthropogenic” – that is caused by human activity since the beginning of the industrial age in about 1750. This is because of the increased emission, from various sources of “Greenhouse Gases” or GHGs. The most important is Carbon Dioxide (CO2), whose level now exceeds 400 ppm, this highest for 3 million years https://science2017.globalchange.gov/ , but others such as methane are also relevant. Most of these emissions come from the burning of fossil fuels (oil, coal, gas) for energy for heat, power and transport, but there are also significant emissions from agriculture and land use.

 

How may legal action help ?

Much energy and attention has been focused globally and nationally on CC. Many national laws and some international treaties have been passed. The two most important international treaties are

  • The UNFCCC 1992. This is a framework convention. Almost every country in the world ratified this whose object was “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system A protocol to this convention, the 1997 Kyoto Protocol, provided further detail and also specific obligations on developed countries to reduce emissions by specific amounts. However this did not result in the necessary action required to achieve the UNFCCC goals
  • The Paris Agreement in 2015 provides primarily for mitigation and adaptation. On mitigation, they key objective is “Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels

However neither of these treaties provide a directly enforceable legal mechanism for the taking of action which will prevent CC or its effects, or compensate those who have suffered damage. So legal action in the courts is still potentially very important

CC is often described as an environmental problem. But it has some unique features which make it unlike other types of environmental problem such as pollution of the air by a factory

  • There is a long “time lag” between emission of GHGs and effect on climate. So damage may be caused long after the emission, and continue long after the emission has been stopped
  • Climate Change is global in effect. The concentration of GHGs in the atmosphere is caused by the totality of emission. So emissions do not usually [cross ref Arctic Norway case which highlights some local effects] have a specific local effect but do have (individually small) global effect
  • It is more than just an “environmental” problem in that it potential affects most aspects of life

Because of these unique features

  • most litigation aimed at “mitigation” is long term in outlook with no short term or direct benefits to local communities as such. But communities and group of citizens can and do bring these cases as part of a global effort to minimise CC’s adverse effects

Example: In 2015 a Dutch Court found that the Netherlands must do more to avert the imminent danger posed by climate change in view of its duty of care to protect and improve the living environment, even though the Dutch contribution to global climate emissions is 0.5%,  The Court determined that the Dutch government must reduce CO2 emissions by a minimum of 25% (compared to 1990) by 2020 to fulfill its obligation to protect and improve the living environment against the imminent danger caused by climate change.

  • Litigation aimed at “adaptation” may have direct benefits by compelling action to help to adjust to the effects of CC. So the council of a coastal town might take action to compel the government to provide funds for building barriers to protect from sea level rise.

Example: In the  Leghari case in Pakistan the “Green Bench” court directed responsible ministries and departments to: appoint a focal person on climate change to appear before the Green Bench, and prepare a list of adaption measures to be completed by the end of 2015.  The Green Bench also established a Climate Change Commission to help the Court monitor progress and achieve compliance with guidelines.

 

 

2

What Sort of problems, damage or loss occur or may occur because of CC

Global average temperatures are rising. But this does not mean that everywhere becomes a little hotter or that effects are limited to temperature change. There is separate section in this module [x-ref] to problems and damage caused by CC. Different places are affected differently.

 

There is a wide range of different problems caused by climate change at a local level, Damage can be caused by any change in climate, whether it is hotter, colder, wetter or drier. The main direct problems are

  • Extremes of temperature, with a hotter climate and heatwaves
  • Changes in patterns of rainfall, with more droughts and floods
  • Sea level rise, itself leading to flooding, inundation and salination of coastal areas. The average sea level rise over the last 115 has been about 7-8 inches or 19 cms.
  • Increased frequency/severity of extreme weather events such as cyclones and hurricanes.
  • Melting of glaciers and snow/ice
  • Acidification of oceans (not strictly a result of climate change but a result of the same factors that cause CC)

All these potentially cause physical damage (damage to property and injury or death to people) as well as economic loss and adverse social and political changes. These include

  • Shortages of food (from reduced crop yields) and water
  • loss of income or livelihood,
  • displacement, forcing people to leave their homes,
  • increased rates of disease or health problems

The worst effects likely to fall on vulnerable and often poor states – Bangladesh, Philippines, Nepal are examples

In addition CC has a disproportionate impact on the poor and marginalised people within any state, often including indigenous peoples, the elderly and women. Young people (and future generations) are also vulnerable in the sense that CC is likely to increase in severity in the future and in the long term.

It is not only people who are vulnerable. Biodiversity and the environment generally are threatened by climate change, with many animals and plants adversely affected. Marine life including coral reefs are particularly vulnerable to warmer and more acidic oceans.

3

Who Might Benefit from Legal Action?

Anyone who has been affected or who will or may in future be affected may be able to take legal action. This covers a much of the global population, although as explained above there may be no direct or immediate benefit from the legal action. Particular people or groups of people might include

  • Inhabitants of coastal or low lying land ( such as islands, Bangladesh, and parts of the Eastern USA)
  • Inhabitants of areas vulnerable to hurricanes and cyclones
  • Farmers
  • Those dependent on water from glaciers or threatened by floods from their melting
  • Conservation organisations who own or support parks reserves and sites of environmental importance

Often the most effective action is by groups of citizens or regional communities such municipalities or indigenous communities.

 Example: In 2005 the Innuit Circumpolar Conference presented a petition to the Inter American Commission on Human Rights.

4

What Sort of Remedies May Be Available?

The most common types of remedy sought in climate change cases are

  • A court order to require a government to reduce emissions in a state, by regulation or policy.
  • A court order declaring that regulation or policy is illegal or invalid
  • A court order banning a project or policy that contributes to climate change, such as a coal fired power plant, or a subsidy of fossil fuel use, or permitting drilling for oil.

Example: Greenpeace Nordic Association v Government of Norway, where the claimants challenge the grant of licences by the defendant for oil and gas production, based on Article 112 of the Norwegian constitution giving a right to a healthy environment.

  • A order challenging a body (such as a bank or IFI) which lends or finances high carbon intensity projects
  • A similar type of order but more limited, where a ban is sought unless and until a proper assessment of the project or policy has been carried out, whether by an Environmental Impact Assessment, or “modelling” or by consultation with stakeholders
  • An order to provide or disclose accurate information which enables assessment of consequences of particular activities or policies. This might be information required in regulatory filings or information held by public bodies
  • An order to a non-government actor, such as a fossil fuel company, to restrict emissions from its operations
  • An order to restrain false claims about how environmentally friendly or “green” a company or its products or serves are
  • An order requiring a government or department to introduce policies to enable adaptation
  • A order declaring that a particular policy or action is illegal or invalid or contrary to the Human Rights or other rights of a complainant
  • An order for compensation, from a state body or a corporation, for the consequences of climate change.
    • An order to compensate directly would be very unusual. However it may be possible in some circumstances

Example: In the Kivalina case, the claimants were Innuits whose village on the coast of Alaska had become uninhabitable because of ice melt and sea level rise. They sought, in a claim brought in the USA the cost of relocating from a number of major fossil fuel companies. The failed but on technical legal grounds, not because of a lack of proof that CC had caused damage.

Example: Three Californian coastal communities have sued major fossil fuel companies in relation to the cost of protection against sea level rise, alleging that the companies have committed various wrongs including nuisance and negligence and that they deliberately concealed the dangers of these fuels.

Example: In the case of Lliuya v RWE the claimant is a Peruvian farmer seeking to claim from RWE, a power generator, a declaration that it would be liable for a proportion of the cost of protection against glacial melting. His claim, in the German courts, is based on the German law of nuisance contained in its civil code under which a party may be liable for interference with property.

  • Compensation may be order for a failure to take account of the effect of climate change.

Example: The US Army Corps of Engineers (“USACE”) were held liable to residents of New Orleans for costs incurred by flooding after Hurricane Katrina, on the basis USACE had negligently failed to factor in the potential effects of climate change when designing flood defences. An appeal was allowed on technical grounds of immunity of the defendants.

 

5

Where and how are these remedies available?

ELAW have a Climate Litigation Primer to help those interested in taking action. They also have a more detailed section of their website devoted to climate litigation strategies. This provides much useful advice and guidance.

Where

  • Actions against are most often taken in National Courts,
  • It may be possible to bring actions before
    • regional courts or commissions or tribunals, especially where Human Rights are involved. These may include Inter American Commission on Human Rights, African Commission on Human and Peoples’ Rights,
    • national human rights institutions (eg Philippines)
    • other places such as under the OECD complaint procedure, the World Bank complaint mechanism.

How

This is covered in more detail in other sections of this module. However the key types of claim are usually based on one or more of the following types of actions

  • Administrative law or “judicial” review. This is where action or lack of action (perhaps in the form of a national law or regulation or a failure to regulate, or a decision by a state actor) is challenged on the basis that it is unlawful, or irrational or unreasonable

Example: In 2017 in New Zealand a concerned citizen challenged the Government’s decision not to set more ambitious emissions reductions targets.

  • Tort or wrong doing. This is where a claim is brought, usually either against fossil fuel companies who emits GHGs or state who fail to regulate such emission, based law that forbid harmful activity or prescribe that the person causing harm must compensate the person suffering the harm.
  • Regulations. Sometimes an activity will contravene national regulations or standards which are engaged by a high carbon project such as a coal mine or power plant or deforestation for cattle production.

Example: The Indian Ministry of Environment and Forests approved a proposal to clear 1,900 hectares of forest land for coal mining. The Indian Green Tribunal concluded in 2014 that the “Minister acted arbitrarily”.

  • Also
    • Companies that fail to disclose or misrepresent the extent to which they are exposed to climate risks may be in breach of financial/disclosure regulations
    • Companies which falsely claim that there products are “green” may be in breach of advertising regulations
    • Companies that knowingly or negligently misrepresent the risks poses by climate change may also face liability
  • Human Rights. Damage caused by CC may be a breach of Human Rights under various international, regional or national laws or instruments
  • Constitutional Rights. Many modern constitutions provide a right to a healthy environment
  • Public Trust. In some states it may be possible to invoke the doctrine of Public Trust, whereby natural resources including the atmosphere are held by the state on trust for the benefit of the people.

Example: In Juliana v. United States, 21 youth and others challenge decisions of the President of the United States and several federal departments and agencies because those decisions “have substantially caused the planet to warm and the oceans to rise.” (Opinion and Order, pg. 4).  On November 10, 2016, federal District Court Judge Aiken issued an Opinion and Order adopting a magistrate’s Findings and Recommendations and denying the federal government and industry intervenors’ motions to dismiss the case.  Judge Aiken determined that the political question doctrine does not apply to this case; the plaintiffs have standing; and the plaintiffs have properly asserted due process and public trust claims

  • Supply chain/Competition. High carbon industry often externalises environmental costs and may entail unfair competition against low carbon industry.

Relevant factors and arguments

These vary widely from case to case, but may include these

 

  • In administrative law claims, the reasonableness or rationality of the decision, policy or law, often taking into account up to date developments in climate science and national and international climate policy.
  • In tort and similar claims issue arise on
    • Causation, both on whether damage has been caused by CC and whether the defendant has sufficiently contributed to CC;
    • Whether the defendant knew or ought to have known its activity was actually or potentially harmful
  • Public International Law principles such as “equity”, the “no harm” principle and the precautionary principle”
  • National laws on wildlife, energy, planning and other subject related to CC issues
  • Human Rights standards and obligations. In particular, although of no direct legal effect the Ruggie principles and Maastricht principles are potentially important [expand]
  • Benchmarks for appropriate standard and policies such as the internationally agreed obligations. Of particular relevant are the Paris agreement obligations
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