This section of the Guide concerns legal claims against big corporations who have significantly contributed and continue to contribute to climate change.
Consider the following checklist if you are thinking about taking a claim against a Carbon Major:
|1) Is a Carbon Major claim right for me?|
|2) Is there an appropriate law for me to base a Carbon Major claim on?|
|3) Do I have the right to bring a Carbon Major claim?|
|4) Have I identified the right defendant to take a Carbon Major claim against?|
|5) Have I gathered enough evidence to take a Carbon Major claim?|
|6) Have I identified and followed the procedural steps I need to take in my claim?|
|7) If I win, what remedies could I get?|
This section seeks to help you answer these questions. In addition, if you want a take a Carbon Majors claim further, the A4J People v Carbon Majors Template may help you form your legal arguments.
A question to ask yourself when considering bringing a case to court is whether bringing the case is the right decision for you.
The following table of advantages and disadvantages is designed to help you consider whether a Carbon Majors claim is right for you:
|It can be argued that carbon majors claims hold those most responsible for climate change (i.e. corporations with excessive GHG emissions) directly accountable.||Carbon majors claims are difficult. No cases have yet been successful at national courts.|
|Successful cases could create "precedents" which apply to other corporations that have significantly contributed to climate change. This may lead them to a widespread change in an industry.||If a corporation is based in another country, it can be difficult to establish "jurisdiction" in national courts in your country.|
|They can raise awareness about climate change and a corporation's role therein.||Justiciability can be a barrier for courts hearing carbon majors claims.|
|Even unsuccessful cases can put pressure on corporations and the "liability risk" of cases being brought can change business behaviour.||If corporations are permitted to conduct their business activities by law, it can be difficult to hold them liable ("defence of lawful justification").|
|There may be alternatives to bring non-judicial complaints against corporations, such as through complaints to OECD National Contact Points.||Some corporations can use aggressive tactics to intimidate and retalliate against people that try to hold them accountable (e.g. SLAPP suits).|
|If all appeal processes are used, claims can take years.|
If you are bringing a Carbon Majors claim, it will usually be a “civil claim”. A civil claim involves arguing a person or corporation acted wrongfully or violated your private rights (e.g. by breaking a contract, acting negligently, causing you personal injury, and/or damaging your property).
There are many different areas of civil law. Each area prevents corporations and people from doing certain things and provides consequences when laws are broken. The type of law most relevant to these claims is that of “tort,” “civil responsibility” or “delict”.
These are a key type of civil claim:
Once you have outlined the facts of your case, look at the areas of law below and see which most closely relates to your situation. Then check your national law to see what the law is in your country.
Your legal analysis has to be supported by the evidence you have gathered. You should consider seeking legal advice. A lawyer should be able to provide advice on the options available to you and advise on your chances of success.
The types of evidence you may need to support your argument will be outlined later in this section.
If your land is affected by climate impacts, a claim in private nuisance could be relevant.
Example: Lliuya v RWE AG
This is a case brought by a Peruvian farmer in German courts against RWE (a German energy company) for their contribution to climate change.
The farmer is arguing the climate change is causing glaciers near his farm to melt, which will result in flooding of his community. He argues that RWE’s contribution to climate change – and the flood risk – amounts to an unlawful interference with his property.
He is asking the court to order RWE to pay their share of adaptation costs to help protect his community from the floods. A court of appeal in Germany determined his case is sufficiently strong to be admissible. A judgment on the merits of the case is now pending.
To hold a corporation liable in private nuisance, you usually need to show:
This can include land that you legally own, occupy or use.
For climate change, this could include:
This can be hard to prove. What you need to do to prove causation will change in different countries and in different types of claims. This Guide will take you through some steps that could be helpful to prove causation.
First, you will need to outline the factual causal link or connection between the GHG emissions of the corporation and the harm you are suffering from. This connection could be shown by, for example, demonstrating that:
Second, this factual causal link above must meet the relevant legal standard of causation.
Focus Area: Alternative Tests of Causation
In some countries, there are alternative tests of causation that can be used where there are multiple actors that have contributed to harm, rather than causing it on their own:
- Some tests ask whether the Defendant’s actions were the “effective cause” of the harm or whether they “materially contributed to the risk”;
- Under these tests, the Defendant could be held liable for their level of contribution to the climate change and its contribution to the harm suffered by the Claimant (rather than all the harm). In other words, an emitter responsible for a significant, even if small, share of global emissions may be held liable in proportion to that share.
- Also, as the courts have indicated in some of the challenges against governments, such as the Urgenda case, the doctrine of shared responsibility may apply so that a defendant cannot escape liability by saying that others are doing the same or worse. This argument could be used in cases against Carbon Majors.
Check if there are any alternative tests of causation used in your country for cases involving multiple causes of harm.
This is similar to proving a breach of duty in negligence. It can be helpful to highlight:
Public nuisance is similar to private nuisance except that there is no requirement that your individual property has been damaged.
In public nuisance cases, the climate change impacts that your claim is based on must affect a group of people who are connected in some way:
In the same way as with private nuisance, you have to prove that:
In some countries, you also have to prove that the injury or damage is “special” in some way (i.e. distinct from how the general public may be affected). In absence of this evidence, you will not be able to fulfil the requirement of standing unless you receive prior consent of the attorney general of the jurisdiction in which the claim is being brought. Check the law in your country to see the specific requirements on public nuisance claims.
An important civil responsibility claim is negligence. A corporation will commit negligence where its actions fall below the standard of care they owe you, and this causes harm.
To hold a corporation liable in negligence for contributing to climate change, you usually have to show that:
This means that the corporation must meet a standard of expected care towards you. In other words, this means the corporation must act with a degree of caution or care when it’s taking actions that could impact you.
When arguing that a corporation owes you a duty of care to take relating to climate change, you may need to show that:
This means the corporation did not meet the expected standard of care. The breach of duty of care in a Carbon majors claim could be:
Example: Rhode Island v Chevron Corp & Others
A case brought by the state of Rhode Island in the USA against 17 fossil fuel companies for their role in contributing climate impacts in Rhode Island.
They are arguing that the defendants’ contributions to climate change have caused damage to Rhode Island residents, infrastructure and property through sea level rises and changes in weather patterns (e.g. heavy rains).
They argue this amounts to negligence, public nuisance, strict product liability and breach of statutory duty. They are asking the court to order the defendants to contribute to adaptation costs and change their business operations.
Similar cases have been brought by local governments against Carbon Majors across the USA.
The requirement for causation in negligence is similar to in private nuisance (see above).
In some countries, there can be “strict product liability” where a business introduces dangerous products (e.g. petroleum or coal) to the market, which create risks for consumers.
To prove strict product liability, you usually need to show:
This will be easy to prove where the product is coal, oil or gas, and the defendant is an energy company.
Where the product is coal, oil or gas, it can be helpful to show:
To prove strict product liability for “design defect”, the defect must be inherent to the product.
Alternatively, strict product liability could be proven through “failure to warn”, where the defendant corporation did nothing to warn the Claimant of the risks their products posed to the climate.
As with negligence and nuisance, causation must be proven to have a claim for strict product liability.
In some countries, there are statutes/legislation (i.e. laws passed by government) that can be used to hold Carbon Majors liable for climate harms. Check if there is a statute which:
If there is a suitable statute, look at what you need to do to prove a breach. You will usually rely on the same facts and arguments as other types of civil responsibility/tort claims. For example, you will usually have to prove:
Usually, human rights claims can only be brought against the State. But in some countries, there are “due diligence laws” that allow individuals to take human rights claims directly against businesses when they do not take reasonable steps to prevent human rights abuse in their operations.
Example: Philippines Commission on Human Rights and Carbon Majors Investigation
The Climate Change and Human Rights Inquiry in the Philippines is the world’s first investigation into corporate responsibility for the climate crisis. It was launched by the Philippines Commission on Human Rights (CHR) after typhoon survivors and civil society groups filed a petition asking the Commission to investigate the relationship between human rights, climate change and the responsibilities of Carbon Majors. They called for a probe into the possible human rights violations of the 47 biggest fossil fuel and cement companies resulting from climate change.
The CHR’s national inquiry has clearly shown that people affected by climate change and whose human rights have been dramatically harmed must have access to remedies, as well as access to justice. It was found that Carbon Majors and other corporations have responsibilities to protect human rights in the face of the climate emergency.
The outcome of this landmark inquiry will be released in 2020. You can consult a list of their resources and evidence used here.
In a human rights-based claim against a corporation, you will generally have to show that:
Examples: Human Rights-Based Climate Cases Against Carbon Majors
- In France, a complaint has been filed under the “duty of vigilance” against Total. It argues that the company failed to assess the threats of new oil projects to human rights. Find a summary here (translation of complaint from French pending).
- In the Netherlands, a case is being brought by a coalition of NGOs and over 17,000 claimants against Royal Dutch Shell for its contributions to climate impacts in the Netherlands. They are arguing their continued contributions to climate change violate their human rights. The claim form is here.
Also, even if human rights are not directly enforceable against corporations in your country, human rights principles and standards, such as the UN Guiding Principles on Business and Human Rights, could be used to support a case based on tort law or another legal basis. For more information on the human rights responsibilities of businesses, see the Action4Justice Business and Human Rights Guide.
There may be other laws in your country that could be used to hold Carbon Majors liable for their contributions to climate change.
Also, the law can change. What may not have been possible yesterday, may be possible today. Pay attention to legal changes in your country and new opportunities that could exist to bring climate cases.
Example: Smith v Fronterra Co-operative Group Limited & Others
In New Zealand, a climate change spokesperson of Maori heritage is bringing a claim against big national GHG emitters to hold them liable for their contributions to climate change.
While the court has dismissed the claims that were based on negligence and public nuisance, they allowed a claim to continue to trial that was based on “a duty cognizable at law to cease contributing to climate change”. The court accepted that in the age of the climate crisis, there may be a new special duty emerging that restrains GHG emitters from contributing to climate change. This will be decided at trial.
In Carbon Majors claims, corporations could have defences. If a corporation has a valid defence, this means that even if you prove the elements of a cause of action, you will still not succeed at trial.
Focus Point: Redressability, Justiciability and Jurisdiction
Where a case is only brought against a small number of corporations, a claim may be considered non-justiciable on the basis that it fails the “redressability” requirement. This means that even if the court found in favour of the claimant and ordered the defendants to reduce their GHG emissions or cease operations, the problem of climate change would still occur.
One way to try and overcome this issue has been to add a wide range of Carbon Majors as defendants to the lawsuit so that the impact of a positive decision would have a larger impact in terms of addressing climate change. However, for a Carbon Major to be added as a defendant, the court must have jurisdiction over the Carbon Major (see below).
Civil claims are based on your private rights rather than broader public interests. To bring a civil claim based on tort or a similar law, you will therefore generally need to be affected by the harm that your claim is based on.
Example: Lliuya v RWE AG
The claim in this case is being brought by a Peruvian farmer whose lands are directly affected by the risk of floods linked to climate change.
Some jurisdictions permit multiple affected individuals to be represented collectively by a claimant. These actions may be called a “group”, “collective” or “class” action.
Focus Area: Claims Brought by Government Bodies
In some countries, government bodies are able to bring cases against businesses on behalf of individuals or for general harms that are happening in their areas.
In the US, there has been a wave of cases brought against Carbon Majors by local, city and state governments seeking accountability for climate change impacts in their local area.
If you don’t have the right or resources to bring a case but a sympathetic local government body might, an idea could be to lobby the local government to take the case on your behalf.
This type of legal case is generally brought against big corporations who have significantly contributed and continue to contribute to climate change.
Key Resource: The Carbon Majors Report
The Carbon Majors Report highlights 100 corporations that are cumulatively responsible for 71% of global GHG emissions. The vast majority of these corporations are involved in the fossil fuel industry.
Another factor that will influence who you can bring a claim against is “jurisdiction”. Jurisdiction relates to whether a court has the power to hear a case.
To establish jurisdiction, you will generally need to prove that the defendant company is domiciled in the country where you are bringing the case. This often includes countries where:
This issue is discussed in more detail in Action4Justice’s Business and Human Rights Guide.
Focus Point: Claims Against Investors and Insurers
It may also be possible to bring a climate case against businesses which have assisted, facilitated or are connected to the activities of Carbon Majors. This could include banks and investors which provide Carbon Majors with finance.
- For more information, see the Action4Justice Business and Human Rights Guide.
However, as these claims are more indirect and removed from the cause of the harm a claim will be based on, they will likely be more difficult (e.g. it will be harder to prove causation and duty of care).
In civil law actions, it’s the claimant who has the “burden of proof”. This means the person bringing a civil claim needs to prove their case.
One of the first things you need to do then to bring a successful claim is gather evidence that will be accepted in court. You need to have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened).
When you’re bringing a Carbon Majors claim, you will need evidence to support the following:
You will need to provide evidence that global temperatures are rising, this is caused by man-made GHG emissions and the warming of the Earth will have serious impacts (see Climate Change). Useful and publicly available sources of evidence were outlined in Climate Litigation Basics.
When presenting evidence on climate impacts, you should focus on the particular climate impact that affects you and your community.
The defendant corporation’s business activity needs to be connected to the causes and impacts of climate change. In other words, the extent to which the defendant has contributed (and will likely continue to contribute) to climate change has to be demonstrated and proven.
For past GHG emissions, this can be done by:
Key Resource: Carbon Majors Report
The Carbon Majors Report calculates the amount of GHG emissions of the 100 corporations who have emitted the most GHG emissions since 1988. It concludes that these Carbons Majors have been responsible for 71% of global GHG emissions in that period.
The report continues to calculate the level of responsibility (by %) each of the Carbon Majors has for global GHG emissions in that period.
This is a vital evidence if you want to prove the level of responsibility a Carbon Major has for the occurrence of climate change.
Key Resource: Union of Concerned Scientists Studies
The Union of Concerned Scientists led two studies which built upon The Carbon Majors Report. These studies found that carbon and methane emissions traced to the 90 largest carbon producers contributed approximately 57% of the observed rise in carbon dioxide in the atmosphere. These emissions were also found to contribute to approximately 50% of the rise in global average temperature, and roughly 30% of global sea level rise since 1880.
It will also strengthen your argument to provide evidence of continued investment in fossil fuel resources can provide useful evidence that the defendant intends to continue contributing to climate change.
It may also be necessary to prove the defendant had knowledge (or should have known) of the impacts of climate change and the fact they were contributing to them.
Practical Tip: Sources of Evidence
This could be proven with the following evidence:
- Internal memos of fossil fuel companies;
- Internal scientific reports commissioned by fossil fuel companies;
- External policy documents of fossil fuel companies;
- Attendance of fossil fuel companies at climate conferences; and
- General awareness of climate change once scientific and political consensus had publicly been reached.
Depending on the company, evidence of knowledge exists and is publicly available from as far back as the 1950s. You do not need to prove that the company had “actual knowledge.” Rather, since the 1950s, fossil fuel companies have had “constructive knowledge” as they are part of the industry groups. This means a fossil fuel company is presumed in law to have known about climate change as they would have this knowledge had they made appropriate inquiries and exercised reasonable care. Once the defendant corporation’s knowledge of its contribution to climate change is established, it can strengthen your arguments to show that although they have had the opportunity to change their operations and transition to renewable energy and green technologies, they have failed to and/or chosen not to do so.
Focus Point: Climate Denial and Deception
In some cases, there is evidence that Carbon Majors have not just known about climate change but have failed to disclose information regarding climate change and campaigned to deceive the public and prevent action to combat climate change.
An excellent resource is “Smoke and Fumes”, a report by the Center of International Environmental Law which provides a comprehensive evidentiary basis of climate deception by certain Carbon Majors.
The specific loss or damage the you have suffered, are suffering or will likely suffer as a result of climate change needs to be detailed. This may include:
The specific loss and damage your claim is based on needs to be consistent with and supported by the climate science on the impacts of climate change on your country or region.
Practical Tip: Sources of Evidence
Useful evidence to demonstrate personal loss, injury and damage include:
- Witness statements from yourself and people in your community/group who have been affected by climate change impacts;
- Photographs, videos and satellite images;
- Environmental samples from the local area demonstrating environmental harm (e.g. ocean acidification);
- Local scientific, university, NGO/CSO and government reports, which corroborate the harm claimed by witnesses;
- Expert witnesses. These are people with specialist knowledge in an area relevant to your case that could support what you are claiming (e.g. climate scientists); and
- News reports of extreme weather events in the area.
This evidence also needs to relate to the legal basis of your claim. It is not enough to show that climate change affects you and a Carbon Major has contributed to this. The evidence has to support your legal argument that the actions of a Carbon Major corresponds with the breach of a legal obligation. See the sub-section above for examples of what the legal basis of your claim could be.
When you have collected your evidence and conducted your legal analysis, you should then be able to start the court claim.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred); or
- The date you learned about the harm.
In Carbon Major cases, it can be argued that there is “continuing harm” because the threat of climate change and the corporation’s contributions are ongoing. In some systems, the time limit will not begin to run where the harm in continuing.
It may also be possible to apply for the limitation period to be extended.
Here are some general points of procedure that you may have to follow to pursue a civil claim:
Consider whether to notify the defendant corporation that you are going to bring a claim. In some cases, it may be unwise to do this if there's a risk the defendant will destroy important evidence and/or remove assets from the country in question.
File your case in court within the relevant time period after the harm occurred. This could involve giving the court a "claim form".
Present your grounds for the claim to the court, which will be shared with the defendants. This document is referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". These documents and your claim form will then have to be shared with or "served" upon the defendant.
The defendant will provide a "defence" which outlines their arguments They may say your version of events is wrong, argue their actions were not unlawful, or argue you cannot bring your case due to procedural reasons.
Consider whether to apply to the court to freeze the defendant's assets, force the defendant to disclose key documents/evidence in their possession, or apply for permission to use expert witnesses. Sometimes these need to be made immediately when you file your case.
There may be "interim hearings" on relating to interim applications, specific legal or evidential issues before trial. For example, the defendant may apply for your case to be dismissed before trial. This could lead to a "mini trial" to see if your case has some chance of success.
The defendant and you may be asked to exchange evidence you rely on If you are using witnesses, you will usually need to include what they are going to say in a "witness statement"
Once evidence has been exchanged, the court will generally notify the parties of a date for the main court hearing (sometimes called the "trial"). At trial, you will present your arguments, the judge will ask questions, witnesses will give oral evidence and can be questioned by the lawyers. The court then makes its decision.
Once the main trial is over, the judge will consider each of the parties' arguments and form a decision, often in the form of a "judgment".
The losing party generally will have the right to appeal this judgement before a higher court.
If you bring a successful civil claim against a corporation, you could get one or more of the following “remedies”:
Practical Tip: Less Can Be More
Depending on your legal system, it can be a smart idea not to ask for too much by way of remedy. If a judge considered you are asking them to make a complex court order or devise regulations governing the amount of GHG emissions a Carbon Major is permitted to make, they may be more likely to consider a case non-justiciable.
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
If you want more information:
If you are considering taking a Carbon Major claim, we recommend that you download the Action4Justice People vs Carbon Majors Template.
Key Resource: The Action4Justice People v Carbon Majors Template
The Template provides a skeleton for people to follow if they want to bring claims against Carbon Majors for their contributions to climate change. The Templates have been designed by legal professionals with expertise in climate litigation.
The Templates aim to encourage effective use of the law to bring climate related litigation in appropriate cases by providing:
- An appropriate format for drafting a document in which to make a claim (“the legal complaint” – paragraphs, font, page numbers, title, headings etc);
- An effective structure in which users can place their legal and factual arguments regarding climate change;
- An outline of the arguments that could be used when bringing climate litigation; and
- References to climate science and cases to help the user build a strong case.
While your complaint needs to be different depending on what country you are taking a legal case, the Template provides useful tips and guidance to get you started if you are thinking about using legal action for climate justice.