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”
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)
21 November 2016: Shareholders bring class action against Exxon
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
Chinta and Samundri Davi
Salempur Village near Muzaffarpur
'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
Plan B - Litigation Strategy
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:
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:
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:
WHAT IS THE PLAN TO CLOSE THIS GAP?
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.
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 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:
It has a number of tactical advantages, such as:
How will Plan B be implemented?
(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:
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.
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)
"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