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”
'If, and this is the case here, there is a high risk of dangerous climate change with severe and life-threatening consequences for man and the environment, the State has the obligation to protect its citizens from it by taking appropriate and effective measures.'
Urgenda Foundation v Government of the Netherlands, 2015
'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.'
US Supreme Court, Massachusetts v EPA et al, 2007
Jeff and Tracey Waters
The 'Legal Action' section of the web-site aims to help lawyers, NGOS and others evaluate possible legal avenues to containing dangerous climate change and pursuing climate justice. It does not constitute legal advice. Any person or entity considering pursuing litigation should consult with an attorney licensed to practice law in that jurisdiction.
The section falls into four parts.
Part 1, 'Types of Legal Action', provides an overview of the wide range of legal actions that may support and enforce appropriate action on climate change.
Part 2 offers more detailed analysis in relation to Four Key Scenarios:
(i) Countries' legal obligations to each other, i.e. the potential for climate vulnerable countries to use public international law to:
a) develop a legal framework for carbon budget-sharing arrangements, helping to realise the 1.5 or 2 degree Celsius temperature goal; and
b) develop a legal framework to ensure appropriate financial support for mitigation and adaptation efforts (based on the concept of 'carbon creditors' and 'carbon debtors').
The focus is on countries' legal obligation to take reasonable steps to avoid causing harm to areas beyond their territory. Greenhouse gas emissions are also damaging the oceans, and the potential to raise a claim under the international law of the sea, which provides a specific framework for liability and compensation, is also discussed.
(ii) Challenging your government's actions on climate change, i.e the potential for NGOs and citizens to bring legal actions requiring their national or regional governments to take appropriate action on climate change. The emphasis is on national emission reduction plans where these are inconsistent with the 1.5 or 'well below' 2 degree Celsius temperature goal (following the successful challenge to the Dutch Government's target in the 2015 Urgenda case).
(iii) Liability of carbon majors, i.e.
The section emphasises the analysis of Rick Heede, which demonstrates that just 90 'carbon majors' are responsible for the majority of human greenhouse gas emissions.
It also considers the national legal frameworks which might provide a basis for action in some specific jurisdictions, including Brazil, Colombia, Ecuador, India, Kenya, Mexico and Nigeria.
(iv) Investor and financier liability, i.e. the potential to bring action against those supporting and profiting from the fossil fuel industry. There are two possible bases for establishing such liability:
Part 3 provides analysis and resources in relation to Two Key Challenges for climate change litigation:
(i) Plan B and the Global Commons Institute have developed the Blueprint, an integrated framework for rationalising the apportionment of responsibility between countries for:
The standard test for causation in tort is the 'but for' test, i.e. can the claimant prove that the alleged damage would not have occurred without the defendant's acts or omissions? The strict application of this test would present a claimant with two major hurdles in the context of climate change litigation:
1) Can the claimant show that damage would not have occurred where it not for climate change? If so,
2) Can the claimant show that the relevant degree of climate change would not have occurred 'but for' the actions / omissions of the defendant?
Tort law, however, is concerned with both justice and the economically appropriate allocation of the cost of harms. Where a rigid application of the 'but for' test is inconsistent with these objectives, courts around the world have adopted more flexible approaches. In circumstances of scientific complexity, for example, courts have adopted a test of whether a defendant's acts or omissions 'materially increased the risk' of the harm occurring, or developed alternative approaches such as 'commingled product theory'.
As long as a courts accepts that, as a matter of justice and policy, it would be fairer for carbon majors (for example) to bear the costs of climate change loss and damage rather than, let's say, the victims of climate change induced drought, there is no reason why the issue of causation should prevent a finding of liability.
Part 4 focusses on Access to Justice, i.e. who can brings claims for which actions. The section highlights some international legal principles which recognise and support the critical role of the public and NGOs in upholding laws to support environmental protection, (such as the Rio Declaration and the Aarhus Convention); and also considers examples of incentivisation schemes in national law, such a provision in Mexico for a court to award an honorarium (of up to 10-20% of damages) to a public interest organisation bringing an action to protect the environment.