Liability for Climate (In)action: Who will be next?

Alyssa Johl, Center for International Environmental Law

Governments can and will be held liable for failing to adequately regulate the fossil fuel industry and thus prevent further climate harms

Part of Climate Dialogues blog series

This summer, we celebrated a big win for the climate.  In a lawsuit brought by Urgenda and nearly 900 co-plaintiffs against the Dutch government (Urgenda Foundation et al. v. The Netherlands), the District Court of The Hague found that the government “acted negligently” when it adopted an unambitious climate policy that poses a threat to human rights in the Netherlands.  As a result, the Court ordered the government to reduce its greenhouse gas emissions by at least 25 percent (compared with 1990 levels) by the end of 2020. 

Although the Dutch government has announced its intention to appeal, this landmark decision puts other countries around the world on notice: 

governments can and will be held liable for failing to protect the climate on behalf of present and future generations. 

In its analysis, the District Court argues that the Netherlands has a duty to take ambitious climate action as a means to prevent harm to its own citizens—however, it can be argued that this obligation extends beyond borders to citizens of the world.  Explicitly recognized by the International Court of Justice and other sources of international law, principles of customary international law—in particular, the duty to avoid transboundary harm and the precautionary principle—require States to prevent, reduce and control significant environmental harm (or the risk of such harm) to other States.  In the case of the climate crisis, this obligation requires States to regulate the fossil fuel companies that are responsible for the severe environmental and human harms resulting from climate change.

Thanks to groundbreaking research by Richard Heede of the Climate Accountability Institute, we now know that just 90 entities have produced the fossil fuels responsible for 65% of the world’s industrial carbon emissions between 1751 and 2013.  These entities include 51 investor-owned companies (i.e. fossil fuel and cement companies), 30 state-owned companies, and 9 government-run industries.  12 percent of total historic emissions can be traced to fuels produced by the top 5 investor-owned companies (BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell).

Greenpeace Southeast Asia (GPSEA) and partners have launched an innovative campaign to hold the investor-owned carbon producers accountable for their contributions to climate damages.  In the coming weeks, GPSEA will submit a petition to the Philippines' Commission on Human Rights, calling on the Commission to investigate the human rights abuses resulting from climate change and to assess whether the carbon producers have met their responsibility to protect human rights.

But what about the States in which these companies are incorporated?  These countries include:  Australia; Austria; Canada; France; Germany; Italy; Japan; Mexico; Netherlands; Russia; South Africa; Spain; Switzerland; United Kingdom; and the United States (not surprisingly, the United States bears the largest responsibility of total historic emissions, as it is home to 21 of the 51 investor-owned carbon producers). 

Many of these countries have not taken the following actions to adequately regulate the fossil fuel industry and thus prevent further climate harms.

1) Countries must take a comprehensive, economy-wide approach to shift from fossil fuel-dependent to clean energy economies

While some countries have proven to be leaders in developing ambitious climate policies, most have fallen short.  For example, the United States has taken positive steps in recent years, but has failed to enact comprehensive climate legislation that would effectively regulate fossil fuel products (and thus the producers) of greenhouse gas emissions.  In its absence, the U.S. government has adopted a piecemeal approach to carbon regulation, relying on its authority to regulate greenhouse gases under the Clean Air Act and other federal laws.  These measures are primarily targeted at downstream emitters rather than upstream producers, so have had limited impact on the U.S.-based carbon producers that continue to operate as business as usual. 

2) Countries must phase out fossil fuel subsidies

In the absence of climate legislation that mandates the phase-out of fossil fuels, governments are funding our continued dependence on fossil fuels.  In 2009, the G20 made a commitment to phase out inefficient fossil fuel subsidies that encourage wasteful consumption, yet member countries continue to spend $88 billion per year subsidising fossil fuel exploration alone (this figure does not include massive subsidies for subsequent expansion and production. As described by Overseas Development Institute and Oil Change International, these exploration subsidies “marry bad economics with potentially disastrous consequences for climate change…  [G]overnments are propping up the development of oil, gas and coal reserves that cannot be exploited if the world is to avoid dangerous climate change.”

3) Countries must hold fossil fuel companies (including their directors and officers) accountable for climate denialism and misinformation campaigns

Beyond traditional lobbying, many fossil fuel companies are funding climate denial and disseminating false or misleading information on climate risks.  These misinformation campaigns are influencing the public and policymakers, and effectively obstructing action on climate change.  In the U.S. context, the government does not require fossil fuel companies to report their political and public relations spending (and does not regulate these activities otherwise)—as a result, it is unknown how much the U.S.-based Carbon Majors have contributed to climate denial and misinformation campaigns. 

Despite the well-established body of evidence proving that there’s far more fossil fuel than we can burn and the more we extract, the greater the risk of climate catastrophe, most countries have not taken steps to adequately regulate the fossil fuel industry.  And in many cases, decision-makers have failed to take a strong stance due to the influence of the fossil fuel lobby.  In the lead-up to Paris and beyond, countries must take urgent and ambitious action to protect our right to a safe climate, otherwise they will be held to account not only in the courts of public opinion but also in the courts of law.