Snowball Effect vs Greenhouse Effect​

​'Snowballing' legal actions promise an immediate chilling effect on investments in fossil fuels, harnessing market forces towards a timely, science-led energy transition, and effective containment of dangerous climate change.

1 April 2017: Nine-year-old girl files lawsuit against Indian Government over failure to take ambitious climate action (The Independent)


9 March 2017: This climate lawsuit could change everything. No wonder the Trump administration doesn’t want it going to trial (Washington Post)


15 February 2017: Climate Change Concerns Prompt Court to Block Vienna Airport Expansion (Inside Climate News)


20 December 2016: Judge allows youth constitutional climate rights case to move forward against state of WA and Gov. Inslee(Press Release)


6 December 2016: Cushing Residents Seek Class-Action Lawsuit Against Oil Companies Over Earthquakes


21 November 2016: Shareholders bring class action against Exxon


10 November 2016: Victory for America’s Youth – Constitutional Climate Lawsuit against U.S. to Proceed 


26 October 2016: In a loss for ExxonMobil, NY Supreme Court orders oil giant to produce climate documents


25 October 2016: Swiss Grannies launch legal challenge to demand stronger climate action


18 October 2016: Norway faces climate lawsuit over Arctic oil exploration plans


29 September 2016: CLF filed lawsuit against Exxon for climate deception


15 September 2016: International court to prosecute environmental crimes in major shift


27 July 2016: Oil majors summoned to Philippines human rights inquiry


​1 July 2016: In Kenya, companies now liable for climate change damages


21 June 2016: China punishes officials over sewage in first environmental case of its kind


18 May 2016: Youth Win Climate Case Against Massachusetts in State's High Court


​17 May 2016: Conservation Law Foundation serves 'notice of intent' on Exxon


​9 May 2016: 'Exxon scrambles to contain climate crusade'


​29 April 2016: Judge requires Washington State Ecology Department to advance science-based rule for limiting CO2 emissions citing 'urgent situation'


9 April 2016: Judge Denies Motions by Fossil Fuel Industry and Federal Government in Landmark Climate Change Case


8 April 2016: Seven-Year-Old Pakistani Latest To Sue Government Over Climate Inaction​


22 December 2015: Exxon's Oil Industry Peers Knew About Climate Dangers in the 1970s, Too


4 December 2015: Philippines takes up complaint of human rights violations by oil firms


2 December 2015: A Peruvian farmer is suing an energy giant over climate change


13 November 2015: Farmer sues Pakistan's government to demand action on climate change


12 November 2015: New Zealand law graduate sues Government over emissions targets


24 June 2015: Dutch government ordered to cut carbon emissions in landmark ruling


4 May 2015: Belgian Citizen Coalition Pursuing Legal Case Against Government Over Inaction On Climate Change


7 January 2015: China encourages environmental groups to sue polluters

Chinta and Samundri Davi
Salempur Village near Muzaffarpur
Bihar
India
August 2007

'There are a number of climate-related legal actions, cases, and investigations that are similar or relevant to or have a bearing in this Petition. The developments fall into two categories: (1) legal developments challenging government action or lack thereof concerning climate policy and practices; and (2) legal developments challenging corporate activities concerning climate harm and corporate knowledge of the threats of climate change. As climate law develops and the harms associated with climate change intensify, those harmed will continue to pursue claims using various legal theories, e.g. negligence and product liability, and rules to assign liability, e.g. market share approach, material contribution test, globally detectable emissions, significant contribution, co-mingled contribution approaches ... The Petitioners anticipate the developments in the area of climate law to continue at a rapid pace and will update the Honorable Commission as necessary and appropriate.'

From Petition to the Philippines Human Rights Commission 

What is Plan B?

​​Plan B​ is supporting the emergence of a networked, international movement of legal actionto prevent catastrophic climate change.


What was Plan A?


Plan A was an international agreement to establish:


  1. A global 'carbon budget', consistent with avoiding the worst effects of climate change; and
  2. ​Principles for a fair division of that budget between countries.


Few would disagree that, in a logical world, that is how this critical situation would be managed (indeed this was the approach used to avert fatal depletion to the ozone layer).


Political obstacles (including entrenched opposition from fossil-fuel backed US Republicans) derailed Plan A.


The Paris Agreement was a diplomatic success, and brings substantial progress, but it does not deliver Plan A. In particular: 


  • A global carbon-budget is not mentioned, let alone quantified;
  • So the Agreement provides no clear foundation even for a discussion of international budget-sharing arrangements;
  • Collectively the Nationally Determined Commitments (NDCs) declared are too little too late to achieve the objective of limiting warming to 1.5 or 'well below' 2 degrees Celsius, leaving the world on course to a catastrophic 3-4 degrees warming.


See: Action / Goal Deficit


This 'emissions gap' (i.e. the difference between action and goal) is not just a technical issue. The difference between 1.5 and 4 degrees warming is the difference between:


  • life and death on a grand scale;
  • existence and non-existence of islands states and coastal populations (from Tuvalu to Bangladesh and New York);
  • peace and war;
  • prosperity and poverty.


WHAT IS THE PLAN TO CLOSE THIS GAP?


See: What are the consequences?



Time to act


Marches and protests only go so far: the issue is not lack of awareness of the problem; it is what to do about it. Recognition of the limitations of the UN inter-governmental process (and the Paris Agreement) is not an admission of defeat; it is the prompt for development of an alternative and complementary strategy. The divestment movement is already underway. It is symbolically powerful and capable of delivering substantial outcomes but, in isolation, insufficient to ensure a science-led process of decarbonisation.


The Paris Agreement is misleading in its call to decarbonise in the second half of this century. That implies the world has up to 80 years to wean itself off fossil fuels. Unfortunately UNFCCC's own assessment of Paris commitments shows that that is delusional. Without urgent and immediate action, the carbon budget for limiting warming to 2 degrees Celsius is likely to have been exhausted by 2035.​ A plan is needed now.



Role of Legal Action


When a child is seriously ill the parents call the doctor. A pharmaceutical company is responsible for ensuring its vaccines are reasonably safe. A local government would not commission a road bridge across a ravine without plans from a structural engineer. If parents, company or government failed to take and act on appropriate expert advice they would be in breach of their duties of care and held morally and legally negligent. Our civilisation is founded on respect for technical and scientific expertise. 


Yet when it comes to humanity's gravest crisis, a threat to the habitability of our planet, many of those shaping international energy policy are trusting the child will get better without a doctor, even as the fever rises; they are putting vaccines on the market, knowing their adverse health affects outweigh the benefits; and they continue to build the bridge across the ravine even as they hear the cracks. 

The law is society's fundamental safety mechanism. Wherever a duty of care exists, failing to take reasonable steps to prevent harm to others is illegal negligence (whether under private or public international law). Deliberate non-enforcement of that law is to be complicit in that negligence. Contrary to what many were implying in the run up to Paris, a legally binding frame-work for the control of greenhouse gas emissions is already in existence (which Paris has helped to advance in significant ways). The time is ripe for a determined and strategic application of the law.



See: Why Legal Action?



Rising tide of litigation


Climate change has gone unchecked for so long largely because available legal principles have been either overlooked or perceived to face insurmountable impediments in practice. Those primarily responsible for GHG emissions have been operating on the assumption of 'plausible deniability': 'if everyone is responsible then no-one is responsible'. That assumption, however, is now being challenged. Since 2015 successful legal actions have been brought in Holland, the US and Pakistan, with others commenced in Belgium and New Zealand. ExxonMobil is currently under investigation on suspicion of fraudulent misrepresentation over climate change (in a case similar to the successful prosecution of Philip Morris under RICO, for, inter alia, misleading the public regarding the risks of smoking); and 47 Carbon Majors (including ExxonMobil) face an investigation before the Philippines Human Rights Commission for violations of fundamental human rights.



Plan B


Plan B is to build on these successes, and to support the emergence of a networked, international movement of legal action to prevent catastrophic climate change. It will achieve this end by securing:


  • Equitable distribution of a carbon budget;


  • Polluter liability for climate change loss and damage;


  • Massive investment in adaptation and mitigation technologies; and


  • Effective remedies and protections for the victims of climate change.


It has a number of tactical advantages, such as: 


  • ​the range and distribution of potential claimants (since everyone is affected by climate change);


  • the variety of potential legal actions;


  • the existence of well-established legal principles such as the precautionary principle, equity and 'the polluter pays'; and


  • the requirement for courts to reach their decisions on the basis of the best available evidence.



How will Plan B be implemented?


By: 


​(i) building an alliance of civil society, academia, governments, businesses and others committed to the long-term climate goal;


(ii) developing and sharing tools to address the technical aspects of legal action (such as causation and attribution), improving access to justice;

(iii) identifying all potential forms of legal action and associated fora;


(iv) strengthening domestic and regional policy, law and regulation; and

(v) adoption of a networked, strategic plan of legal action.



Range of legal actions


Potential actions include:


  1. An action by climate vulnerable countries before the International Court of Justice, based on breach of the duty to prevent harm (ICJ);
  2. A request by a relevant agency for an advisory opinion from the ICJ on the scope of the duty to take preventative action;
  3. An action by climate vulnerable countries for breach of the United Nations Convention on the Law of the Sea (UNCLOS) concerning pollution;
  4. Domestic actions by citizens or NGOs where governments are failing to take sufficient action against climate change;
  5. Private law actions against fossil fuel companies for tort or delict;
  6. Actions against fossil fuel companies for breach of statutory obligations of disclosure;
  7. Actions against those financing fossil fuel projects for breach of relevant obligations;
  8. Actions by citizens or NGOs before international or regional courts of human rights.


See: Types of Legal Action


A single action before the ICJ might deliver what a quarter of a century of intergovernmental negotiations has failed to achieve: a globally applicable, legally binding framework for distributing equitable shares of the carbon budget. 


A single civil action against a fossil fuel company for climate change loss and damage would send shock-waves through the markets, harnessing market forces to the energy transition, ensuring the requisite flow of investment into clean technologies.




​The clock is ticking: now is the time for Plan B.

​​"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


"The Petitioners believe that those who are largely responsible for and profit generously from the problem, and yet are undermining solutions, should be held accountable, in accordance with the polluter pays principle and intergenerational equity." 

Petition to the Philippines Human Rights Commission

“For a long time, fossil fuel companies have benefited from the idea that everyone is responsible for climate change — and if everyone is responsible, then nobody is responsible. Now the science is moving into a much finer resolution.” 

Carroll Muffett, President of the Center for International Environmental Law​​


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”

A deep resistance to change runs through defendants' and intervenors' arguments for dismissal: they contend a decision recognizing plaintiffs' standing to sue, deeming the controversy justiciable, and recognizing a federal public trust and a fundamental right to climate system capable of sustaining human life would be unprecedented, as though that alone requires its dismissal. This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs' allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.

Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it. As Judge Goodwin recently wrote,

The current state of affairs ... reveals a wholesale failure of the legal system to protect humanity from the collapse of finite natural resources by the uncontrolled pursuit of short-term profits .... [T]he modern judiciary has enfeebled itself to the point that law enforcement can rarely be accomplished by taking environmental predators to court. ...

The third branch can, and should, take another long and careful look at the barriers to litigation created by modern doctrines of subject-matter jurisdiction and deference to the legislative and administrative branches of government.


"A strong and independent judiciary is the cornerstone of our liberties." These words, spoken by Oregon Senator Mark O. Hatfield, are etched into the walls of the Portland United States courthouse for the District of Oregon. The words appear on the first floor, a daily reminder that it is "emphatically the province and duty of the judicial department to say what the law is." Marbury, 5 U.S. at 177. Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a coequal branch of government.


Judge Aiken, November 16 (Our Children's Trust v US Government)