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Article

23 Nov 2022

Author:
Isabella Kaminski, Climate Home News

Litigating climate change: Advantages & challenges of climate lawsuits

"See you in court: how climate lawsuits could sharpen Cop27 loss and damage talks", 2 Nov 2022

...[T]he floodgates of litigation feared by wealthy nations have now well and truly been opened – as a result of international inaction rather than action. The losses have mounted to a level “where people will become so desperate that the only thing that they can do now is go to the court”, says [Harjeet] Singh [of Climate Action Network].

Climate lawsuits have been most successful in getting governments to cut national emissions. Increasingly, many are seeking compensation from historic polluters.

Early cases seeking damages from fossil fuel companies for Hurricane Katrina and for rising sea levels affecting the Alaskan coastal village of Kivalina failed. A lawsuit against German energy firm RWE by Peruvian farmer Saúl Luciano Lliuya, whose home could be flooded by a melting glacier, is still being fiercely fought and could set an important precedent for corporate liability...

Compensation cases cover much of the same ground as loss and damage talks and can help vulnerable nations in their international negotiation strategies.

They raise legal and financial risks for companies and financial institutions. They lend a voice to victims of the climate crisis. And they help unravel knotty questions about causality...

[However]... successful litigation for liability and compensation threatens to undermine the UNFCCC’s authority and legitimacy ... argues Patrick Toussaint, PhD candidate...

And there’s another problem. When lawsuits started to be filed in the US against fossil fuel firms... some argued that compensation should not be going to relatively wealthy Global North governments but instead to communities who would suffer the brunt of climate impacts and could least afford to pay for them...

[Dr Kim Bouwer] thinks it would be a fantastic achievement if Peruvian farmer Lliuya wins his case against RWE [but] “the proportion of damages are so small, it’s not going to be enough to properly ameliorate the risk”.

[Lawyer Harpreet Kaur] Paul believes climate litigation can help set the norm that climate losses and damages must be redressed by those who disproportionately increased the risk of the problem.

“But it is piecemeal, expensive and takes time,” she argues...

Nikki Reisch, [of] the Center for International Environmental Law, describes litigation as a “vital but imperfect mechanism for distributing climate justice”.

She says the prospect of liability adds much-needed pressure for more ambitious climate action and finance for loss and damage, but “the courthouse door is not equally accessible to all”. “That’s why legal action needs to be accompanied by advocacy for systemic change, policy measures and negotiated solutions that can ensure more far-reaching and equitable remedy"...

Although they have similar aims, there is little overlap between the insular worlds of climate litigation and policy negotiations...

Toussaint saw several ways in which those involved in climate litigation and policy can work better together, including targeted NGO advocacy, support for vulnerable country delegations to employ litigation as a negotiating strategy, and litigation networks that enhance the contribution of expert climate lawyers...