LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW

“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
      BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”

'The cost of loss and damage of the 48 least developed countries is currently conservatively estimated to be

USD $50 billion annually, while the 13 biggest fossil fuel companies made more than $100 billion in profits in 2014.' 

​Keely Boom, Julie-Anne Richards

Cases against corporations



  • 8 US States and New York City claim public nuisance against 6 electric power corporations for present and future consequences of global warming:


                       
Ruling of US Court of Appeals (2009)
                       
Ruling of Supreme Court (2011)





April 2016:Massachusetts Attorney General, Civil Investigation Demand to Exxon







​​Human Rights Cases


Investigation by the Philippines Human Rights Commission into the responsibility of the 'carbon majors' for human rights violations arising from climate change (commences 2015):




Public International Law


  • Trail Smelter arbitration, 1935: No state has the right to use its territory so as to cause significant injury by fumes in or to the territory of another.


  • Corfu Channel Case, ICJ, 1949: Obligation to notify others of existence of a minefield in territorial waters derives from 'elementary considerations of humanity'.




  • ​​para. 29: ‘The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.’ 


  • ​'The environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.'


  • Gabcikovo-Nagymaros Project case, 1997: ICJ ruled that Czechoslovakia had violated international law by unilaterally assuming control of a shared resource and depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube. It stated that the principle of good faith required parties to apply their treaty ‘in a reasonable way and in such manner that its purpose can be realised.’


  • Shrimp / Turtle case, 1998, WTO Appellate Bodythe objective of sustainable development (acknowledged in the preamble to the WTO Agreement) 'has been generally accepted as integrating economic and social development and environmental protection'. In principle action to support sustainable development, and to protect exhaustible natural resources, might justify the imposition of trade restrictions.


  • Iron Rhine Arbitral Tribunal, 2005: 'Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm. This duty, in the opinion of the Tribunal, has now become a principle of general international law.' (para. 59).


  • Pulp Mills on the River Uruguay, ICJ, 2010: the obligation to act with due diligence is '[a]n obligation which entails not only the adoption of appropriate rules and measures, but also a certain level of vigilance in their enforcement and the exercise of administrative controls applicable to public and private operators, such as the monitoring of activities undertaken by such operators.' (para. 197)​​



Columbia Law School, Climate Change Litigation Charts




'State and Industry Petitioners assert that EPA improperly “delegated” its judgment to the IPCC, USGCRP, and NRC by relying on these assessments of climate-change science ... This argument is little more than a semantic trick. EPA did not delegate, explicitly or otherwise, any decision-making to any of those entities. EPA simply did here what it and other decision-makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.

Moreover, it appears from the record that EPA used the assessment reports not as substitutes for its own judgment but as evidence upon which it relied to make that judgment.


Congress did not restrict EPA to remedial regulation when it enacted CAA § 202(a). That section mandates that EPA promulgate new emission standards if it determines that the air pollution at issue “may reasonably be anticipated to endanger public health or welfare .” ... This language requires a precautionary, forward-looking scientific judgment about the risks of a particular air pollutant, consistent with the CAA's “precautionary and preventive orientation.” ... Requiring that EPA find “certain” endangerment of public health or welfare before regulating greenhouse gases would effectively prevent EPA from doing the job Congress gave it ... —utilizing emission standards to prevent reasonably anticipated endangerment from maturing into concrete harm.'


Coalition for Responsible Regulation, Inc. v. EPA

Challenges to investment in fossil fuel projects




'EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent,” ... 


The harms associated with climate change are serious and well recognized. The Government’s own objective assessment of the relevant science and a strong consensus among qualified experts indicate that global warming threatens, inter alia, a precipitate rise in sea levels, severe and irreversible changes to natural ecosystems, a significant reduction in winter snowpack with direct and important economic consequences, and increases in the spread of disease and the ferocity of weather events. That these changes are widely shared does not minimize Massachusetts’ interest in the outcome of this litigation ...


While regulating motor-vehicle emissions may not by itself reverse global warming, it does not follow that the Court lacks jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it ... Because of the enormous potential consequences, the fact that a remedy’s effectiveness might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries are poised to substantially increase greenhouse gas emissions: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere ...


Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. It has refused to do so, offering instead a laundry list of reasons not to regulate, including the existence of voluntary Executive Branch programs providing a response to global warming and im- pairment of the President’s ability to negotiate with developing na- tions to reduce emissions. These policy judgments have nothing to do with whether greenhouse gas emissions contribute to climate change and do not amount to a reasoned justification for declining to form a scientific judgment. Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regu- late at this time. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment, it must say so. The statutory question is whether sufficient information exists for it to make an endangerment finding.'


Massachusetts v EPA

​​​​Domestic cases against governments / regulators






Zoe and Stella Foster and others v Washington Department of Ecology (Our Childrens' Trust)


  • April 2016: ​Plaintiffs successfully argue that 'extraordinary circumstances' justify an order that the Department of Ecology advance a science-based rule to limit CO2 emissions (requiring overrule of a previous Court order). 
  • December 2016: Judge allows youth constitutional climate rights case to move forward against state of WA and Gov. Inslee




Kelsey Cascade Rose Juliana et al v United States of America et al. Federal District Court in Oregon (Our Children's Trust)


  • April 2016: Court rules against motion to dismiss claim against the Federal Government for violating constitutional rights by enabling continuing exploitation of fossil fuels.


  • 10 November 2016(on appeal from judgement above): 'In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into
    a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.'


The Urgenda Foundation v. Kingdom of the Netherlands, District Court of the Hague [2015] HAZA c/09/00456689,June 2015: court rules the Dutch government is in breach of its duty of care by failing to set adequate GHG emission reduction targets.


  • ​The Leghari case, September 2015: the Lahore High Court orders the government of Pakistan to implement its climate change strategy.


PUSH and others v Government of Sweden



October 2016,Swiss grannies launch legal action


February 2017: Ruling of Austria’s Federal Administrative Court (Bundesverwaltungsgericht) on the planned third runway for Vienna International Airport (Schwechat)  (informal English translation)


​RIDHIMA PANDEY v UNION OF INDIA 






Cases on regulation to reduce GHG emissions


ZERO ZONE, INC., et al.,v.UNITED STATES DEPARTMENT OF ENERGY, et al., US Court of Appeals, 7th Circuit, August 2016: Court upholds pricing of social costs of GHGs as basis for regulation on refrigeration.



Causation


Bonnington Castings Ltd v Wardlaw [1956] AC 613, [1956] UKHL 1:the UK's House of Lords held that it was sufficient to show that a defendant's breach of duty had made a material contribution to the claimant's injury even where other causes had made a more substantial contribution. 'Material', in this context, means a cause exceeding the de minimis threshold.


Fairchild (suing on her own behalf) etc. v. Glenhaven Funeral Services Ltd and others etc [2002] UKHL 22, [2003] 1 AC 32, [2002] 3 WLR 89, [2002] 3 All ER 305


​re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 379 F. Supp. 2d 348, 377 (S.D.N.Y. 2005): the 'commingled product' theory of causation


​Sienkiewicz (Administratrix of the Estate of Enid Costello Deceased) (Respondent) v Greif (UK) Limited (Appellant) [2011] UKSC 10



Apportionment


Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)​development of 'market share liability' doctrine.


Barker v Corus (UK) plc [2006] UKHL 20 advances the concept of 'proportionate liability'


Access to Justice cases


Dominic Liswaniso Lungowe & others v Vedanta Resources Plc and Konkola Copper Mines Plc (2016): case confirming the potential liability of a parent company for the actions of its subsidiaries, and jurisdiction of the High Court of England and Wales over complaints brought by villagers in Zambia.







Case-Law

Malek Mia, Tahomina Begun,

Shamin, Tamin and Tazin
Palna Village
Naogoan District
Bangladesh
September 2015