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15 Dec 2015

Sif Thorgeirsson & Ciara Dowd, Business & Human Rights Resource Centre

Post Paris climate talks, how to take charge through climate litigation

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At a recent investors meeting at Lloyds Bank, the Bank of England governor stressed that more needs to be done to address the global risk posed by climate change: “[t]he challenges currently posed by climate change pale in significance compared with what might come...The far-sighted amongst you are anticipating broader global impacts on property, migration and political stability, as well as food and water security. So why isn’t more being done to address it?”

Amid uncertainty about how the agreement reached at the COP21 Paris climate conference will be implemented, civil society can take charge through climate litigation. Novel legal approaches will be crucial, both to strengthen company accountability and to spur effective climate regulation by governments. Below are examples of trailblazers in this field. Some have sought to hold companies liable for contributions to climate change. Others have used litigation to push governments for stronger regulation of companies’ climate impacts, in the face of political and legislative paralysis.

Novel legal approaches will be crucial, both to strengthen company accountability and to spur effective climate regulation by governments.

Corporations as defendants

This month yielded a breakthrough for climate accountability when the Philippine Human Rights Commission agreed to investigate 50 of the biggest fossil fuel companies over climate change impacts. A petition, filed by Greenpeace Southeast Asia, asked the Commission to investigate the emitters for human rights violations resulting from impacts of climate change, as well to recommend legislation that will provide for reporting and accountability mechanisms relating to human rights and the environment. The investigation is the first of its kind taken up by a National Human Rights Institution and could have a ripple effect on companies’ activities beyond the Philippines.

Most other climate lawsuits directed at companies have been brought in US courts and have been generally unsuccessful. However, Brazil, Colombia, Germany, Ecuador, India, Kenya and Mexico are poised to take on this type of climate change litigation. In the United States, an Alaskan Inuit village – Kivalina – sued 24 of the world’s largest oil, coal and power companies in 2008. The entire village needs to be relocated due to rising sea levels, and the residents sought damages to recover their costs. The court dismissed the claims, holding that the claims could not be heard under the law the villagers had tried to use. The court noted that their relief would have to come from legislative or executive action, rather than from the judiciary.

This ruling was similar to previous decisions on the issue. In 2004, the New York Attorney General and others filed a federal lawsuit against five of North America’s largest power companies as contributors to public nuisance, as they together emitted 10% of the USA’s CO2. The plaintiffs invoked liability claims that relied on earlier cases against the tobacco industry, and demanded that the companies cut their CO2 emissions in the light of global warming and the damage their emissions were causing in terms of impacts on human health, among other things. The case was dismissed on the basis that regulating power companies was an issue for the legislature.

Earlier this year, a Peruvian farmer sued the energy company RWE in German court. The farmer lives in the floodpath of a glacial lake, and his village will be devastated if rising temperatures cause the lake to flood. He alleges that RWE has contributed to climate change by burning fossil fuels and should pay its contribution to protect his region from rising temperatures.

 Brazil, Colombia, Germany, Ecuador, India, Kenya and Mexico are poised to take on this type of climate change litigation.

This June, the Philippines, Vanuatu, and other small Pacific island nations issued the People’s Declaration for Climate Justice. In this declaration, these island nations stated: “We commit to bring a case that would investigate the human rights implications of climate change and hold the big carbon polluters accountable to appropriate international bodies or processes.” Together, these actions in conjunction with the formal legal action of the Greenpeace petition to the Philippine Human Rights Commission represent a strong and united front on holding corporations accountable for the human rights violations brought about by climate change.

In Germany, the “political question doctrine” does not exist, so the courts will not be able to declare the regulation of emissions an issue to be addressed solely by the government. Still, perhaps in response to this trend in US courts, the emerging case law has been against governments, for failure in duties to regulate emissions to curb climate change.

Governments as defendants

While most climate litigation against governments is by companies or trade associations seeking to weaken or evade existing laws, some climate victims have sued governments to strengthen regulation. These lawsuits are often a direct response to the “corporate capture” of government by industry that has yielded weak climate change legislation in many countries that are large emitters.

In 2007, Massachusetts and several other states, cities and environmental groups petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gases (GHGs) from new motor vehicles as pollutants under the Clean Air Act (CAA), which states that Congress must regulate any air pollutant that can reasonably be anticipated to endanger public health or welfare. The EPA denied the petition on the basis that the CAA does not authorise the EPA to regulate GHGs. Massachusetts appealed and the court held that the CCA does indeed give the EPA the authority to regulate GHGs. This decision led to the EPA classifying GHG emissions as a danger to public health, safety and welfare which enabled executive branch to regulate GHGs rather than leaving the issue floating in the territory of a fractional legislature.

 More recently, in April, Dutch citizens sued their government, seeking to force the state to reduce greenhouse gas emissions. The plaintiffs argued that states are forbidden by international law to pollute to the extent that they damage other states. In June, the Dutch court ruled in favour of the plaintiffs, ordering the government to cut its emissions by at least 25 per cent by 2020. A judge ruled that “[t]he state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts.” This is the first case in the world to use human rights as a legal basis to protect against harmful climate impacts. The Dutch government plans to appeal.

Challenge of holding companies accountable

The problem of the political question doctrine has meant that the only successful cases have been against governments for their failures to regulate emissions. Even if this doctrine cannot be used in RWE as a defence or it is overcome by the small Pacific island nations, there remain the hurdles of causation and attribution.

However, as Gregory Regaignon of Business & Human Rights Resource Centre noted, "companies fear nothing more than a lawsuit.” Ensuring corporate legal accountability for contributions to climate change is an enormous task for the business and human rights community, but one worth fighting for.