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FEATURE: Climate change litigation – a rising tide?


Have you heard of anyone going to court to obtain protection from climate change impacts? Or to sue a company for causing climate-related harm?

Individuals, communities and even whole nations are increasingly exploring these possibilities, broadly termed ‘climate change litigation’.

On Friday (27 April) in London, a group of lawyers met to discuss the role of the courts in arbitrating climate-related disputes.    Participants in the ‘Roundtable on climate change litigation, policy and mobilisation’ debated:  what role do the courts have in clarifying the rights and responsibilities of greenhouse gas emitters? Can courts help stakeholders to secure governmental protection from climate-related harm? Is climate change litigation forcing governments and businesses to adopt more climate compatible policies and practices?

CDKN’s Mairi Dupar reports from the Roundtable. Individual speakers’ remarks cannot be attributed, under the event’s ‘Chatham House rules’.

Defining climate change litigation

The term ‘climate change litigation’ can have a range of meanings. At its core, it describes when claimants appeal to a court to enforce or clarify existing climate change laws– for example, if citizens believe government or a corporation is not meeting its legal requirements to reduce greenhouse gas emissions.  Such lawsuits can only stand up, of course, when the defendant is subject to legally-binding actions on climate change. Call these ‘pro-climate’ lawsuits.

Conversely, ‘climate change litigation’ can refer to citizens, groups and companies who go to court to challenge the legitimacy of climate change laws passed by government – in other words, ‘anti-climate’ lawsuits.  For example, claimants may believe that climate-related laws undermine their other legal rights.

The definitions of ‘climate change litigation’ are flexible, though. All the lawyers who presented at the Roundtable recognised that an increasing number of public interest lawsuits cite climate change as one of several arguments in a case. This is especially the case when the legal principle associated with climate-related action is weaker than other legal principles that would apply in a case. To give an example: claimants fighting major energy or transport developments which they believe will damage their human or environmental rights– such as airport runways, large dams, or fossil fuelled power stations – may rely primarily on environmental conservation or human rights law to make their case, with climate change arguments making up a secondary or tertiary part.

Building on this flexible understanding of ‘climate change litigation’, the discussion charted several major trends:

Climate change litigation goes across borders

The dangers posed by climate change have recently generated a small but significant number of lawsuits from climate-vulnerable nations and communities against large greenhouse gas emitters in other countries. The Federal States of Micronesia’s case against the largest coal-fired power station in the Czech Republic provides one such example. In 2009, the FSM filed suit in the Czech Republic against the CEZ Corporation, which sought to extend the life of the country’s largest coal-fired power station by 30 years, without climate mitigation technologies. The court found in favour of the FSM. Although the polluting activity was not stopped, the suit nonetheless strengthened the principle of legal redress for climate-related harm across national boundaries. (The power station expansion went ahead, but the company was ordered to offset its emissions.)  The case also garnered remarkable international publicity.

Last year, the Republic of Palau, which like FSM is highly vulnerable to sea level rise, requested an opinion from the International Court of Justice on the principle of transboundary harm from climate change. For more on this request and the ICJ’s draft resolution see Keely Boom’s article, ‘See you in court.’

Companies are challenging climate change laws

Climate change litigation has, in its short history, been seen principally as citizens and stakeholder groups’ suing governments and businesses for climate-damaging policies and behaviours. However, there’s an emerging trend in litigation ‘the other way’, where industries take governments to court to challenge climate regulations.

A recent prominent example was a lawsuit by United States airlines against the European Union. The EU sought to extend its Emissions Trading Scheme (ETS) , so that airlines flying into EU airports would be subject to a cap on their emissions – and would have to purchase carbon credits for any ‘right to pollute’ above the cap (the EU won the case). Last week, plaintiffs from the US biofuel industry filed suit against the state of California to challenge its low carbon fuel initiative.

These examples are from North America but the trend has broader ramifications, given the global nature of the industries concerned, and of the emissions themselves.

Developing countries’ courts are increasingly active on climate issues

One speaker noted that claimants used to look toward North America or Europe as favourable jurisdictions to bring environment-related lawsuits. However, courts such as India and the Philippines now demonstrate ‘a potent mixture of judicial activism combined with modern constitutions that express environmental rights that older constitutions do not,’ he said. Kenya and Ecuador, for instance, have progressive constitutions which confer explicit environmental rights on their citizens.

The message was that developing countries are developing considerably in legal, as well as economic terms.  Therefore, depending on which jurisdiction is involved, developing country stakeholders may have considerable potential to clarify their environmental rights in the courts and seek enforcement of those rights, including rights to a safe climate, where they feel their rights have been trespassed. Two recent books: Adjudicating Climate Change: State, National and International Approaches (William C. G. Burns and Hjari M.Osofsky, eds.) and Climate Change Liability: Transnational Law and Practice (Richard Lord et al., eds.) explore recent developing country precedents at some length.

Climate litigation can include adaptation as well as mitigation aspects 

Finally, we may see a rise in litigation over governments’ failure to protect citizens from the damaging effects of climate change. Speakers cited the US civil lawsuit against the US Army Corps of engineers where four individuals successfully sued the Corps for failing to maintain the levies around New Orleans. These levies were breached catastrophically during Hurricane Katrina (2005), flooding large areas of the city and causing loss of life and property.

In suits such as this one, which are concerned with the impacts of a particular disaster, the link with climate change is more tenuous: the science cannot establish a definite causal link between one natural disaster and manmade climate change (and therefore a very loose definition of ‘climate change litigation’ applies); slow onset disasters such as sea level rise have a firmer scientific link with manmade climate change.

The broader point is an interesting one: use of the courts to force climate adaptation actions  by government could be an area to watch in the future.  An Indian lawyer provided final food for thought: there is great potential for legal action against government to protect citizens’ right to livelihoods, shelter and other basic human rights exists in low-lying areas such as the Sundarbans (India/Bangladesh), she said.  Whether such lawsuits will be brought, and will lead to better environmental  governance or a more proactive international position on climate change is another question. According to this speaker, the problem is not lack of policy and an active judiciary in India, it is lack of legal enforcement once rulings have been made.

In summary the publication of two weighty volumes on climate change litigation in the past year (as above) is a sign of the growing body of jurisprudence in this area.

A number of high profile cases have set precedents for principles of transboundary justice as well as domestic justice in offering redress for climate change-related damages.

What’s more, the Roundtable on Climate Litigation, Policy and Mobilisation made it clear that there is very considerable further potential for claimants to use not just climate-specific laws but a range of environmental rights (broadly writ) and human rights laws to seek compensation for climate change impacts from big emitters and seek active protection from climate change impacts from governments. This mobilisation for justice through the courts is in its infancy, and we can expect the movement to mature considerably in the coming years. Developing countries, especially those with activist judiciaries and progressive, modern constitutions will play an important part in this evolution.

The Roundtable on Climate Change Litigation, Policy and Mobilisation was convened by Dr. Lisa Vanhala, University College London, and Prof. Chris Hilson, University of Reading, UK.

 

Image courtesy of Panos.

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