LEGAL ACTION FOR THE CLIMATE GOAL: TOWARDS EQUITY, SURVIVAL AND THE RULE OF LAW
José Alcides dos Santos and Erenilce Lima e Silva
“PRESIDENT TRUMP MAY HAVE HIS ALTERNATIVE FACTS,
BUT ALTERNATIVE FACTS DO NOT WORK IN A COURTROOM”
Why Legal Action?
'In the era of climate change, the Petitioners feel that the real value of the statistics and reports of disaster-related casualties has not been given adequate expression. The real life pain and agony of losing loved ones, homes, farms—almost everything—during strong typhoons, droughts, and other weather extremes, as well as the everyday struggle to live, to be safe, and to be able to cope with the adverse, slow onset impacts of climate change, are beyond numbers and words.'
'With mounting evidence of Exxon’s early knowledge of the threats of climate change, a key question is what did the company do about it?'
From Petition to the Philippines Human Rights Commission, 2015
'The Paris Agreement was notable for its ambition regarding the long-term goal, but its limitations, in terms of agreed actions, are clear.'
'While the Paris Agreement is helpful in various ways ... in isolation, it does not do enough, soon enough.'
'Time is short. Current analysis suggests the economy needs to decarbonise by 2050 at the latest for a good chance of limiting warming to 2 degrees Celsius.'
'For as long as those profiting from polluting activitie s can displace the social and environmental costs onto others ... they will continue to follow the economic incentive, and continue to pollute.'
Rio Declaration, Principle 16: 'National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution …'
'Simply by applying existing laws, we can set precedent which turns climate change loss and damage into economic liability for polluters. The greater the scale and risk of damages, the stronger the incentive for polluters to invest in clean technologies. A virtuous circle is created.'
'It has long been assumed that climate change litigation would face substantial difficulties (particularly around causation and attribution). As striking legal successes have recently been demonstrating (including in the Netherlands, Pakistan and the US) that assumption turns out to be misplaced. A global movement of legal action now offers real hope.'
The Paris Agreement was notable for its ambition regarding the long-term goal, but its limitations, in terms of agreed actions, are clear. Governments have committed, in principle, to safeguarding our future, but the task of defining, distributing and upholding that commitment has, effectively, been left to individual actors and the courts.
Strategic, co-ordinated legal action now presents the most viable pathway to:
A science-based process?
Politically leaders, NGOs and others have invested heavily in tackling climate change through a global treaty (i.e. the UNFCCC process). Deep political divides between the Parties, in combination with industry influence, have resulted in a 'soft' agreement: one in which countries simply choose their own emission reduction targets. An agreement which links actions to our scientific knowledge would entail:
Neither element is contained in the Paris Agreement, nor is there any real prospect of the UNFCCC process putting this right in the near future.
While the Paris Agreement is helpful in various ways (including agreement regarding the long-term goal), in isolation, it does not do enough, soon enough (a fact acknowledged in the Agreement itself).
Timing is everything
Time is short. Current analysis suggests the economy needs to decarbonise by 2050 at the latest for a good chance of limiting warming to 2 degrees Celsius. While challenging, with the support of market forces, such a goal is certainly attainable (see Viability of 2050 decarbonisation). According to the IMF, however, the market is currently being steered in the opposite direction: it claims the world is subsidising fossil fuel production to the barely believable tune of $5.3 trillion a year.
We have one available resource with the potential to reverse this position at speed: the law.
The polluter profits?
For as long as those profiting from polluting activities can displace the social and environmental costs onto others (in economic terms, the costs remain an ‘externality’), they will continue to follow the economic incentive, and continue to pollute.
There are three potential mechanisms for correcting this market failure and harnessing market forces to our long-term interest:
Global top-down regulation worked successfully to protect the ozone layer from the CFCs that were once the mainstay of refrigeration (the 1987 Montreal Protocol). Many believed the adoption of a similar global regime was essential to tackling climate change. Since at least 2009, however, international politics have worked against such an approach, and, the Paris Agreement confirms that, for the foreseeable future, there will be no global top-down regulation for greenhouse gases.
Market mechanisms have been tried with mixed results and there are substantial practical and logistical challenges to their global implementation.
While there is an important role for top-down regulation at national and regional levels, and while market mechanisms may further evolve and develop, neither will do enough, soon enough to harness market forces towards the long-term climate goal.
Or the polluter pays?
Much, therefore, depends on effective implementation of the third correcting mechanism: polluter liability. The costs of climate change loss and damage are already vast. They are projected to become astronomical. Once the principle is established that the polluter (rather than victim) pays the price, the economic incentive for investment in clean technologies becomes clear and compelling; and the most powerful driver at out disposal (i.e. the market) starts gearing up in our favour.
Such an approach accords with internationally recognised principles. The 1992 Rio Declaration, for example, includes the following:
Principle 13: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage …
Principle 16: National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution …
Naturally, given what is at stake, there are polluters (including some investors, companies and governments) who argue against liability for climate change loss and damage, seeking refuge in legal and scientific complexity. 'You can't prove causation for weather events' they say, or 'You can't prove responsibility for something so many have contributed to'. As recent science and jurisprudence confirms, neither assertion any longer holds true. The time is ripe for using litigation to implement the principle of 'polluter pays'.
A virtuous circle
Broadly there are two approaches to reducing greenhouse gas (GHG) emissions:
1. Economic incentives (or 'economic instruments')
2. Direct regulation (or 'command and control').
Legal liability is the most direct, flexible and effective form of 'economic instrument' (and far easier to implement than a global tax or carbon trading scheme). Our political and economic system is founded on financial incentives. By transferring the cost of socially harmful activity onto parties seeking to profit from it, our legal systems incentivise social utility. Simply by applying existing laws, we can set precedent which turns climate change loss and damage into economic liability for polluters. The greater the scale and risk of damages, the stronger the incentive for polluters to invest in clean technologies. A virtuous circle is created.
Impediments to legal action?
There are three classes of reason why existing legal principles have not been effectively applied to date:
1) Technical / legal
1) Technical / legal
There are sometimes perceived to be substantial, technical impediments to legal action such as:
In general terms, both of these issues can be addressed. Climate science is increasingly able to link climate change to specific weather patterns and events with a high degree of probability. And, as demonstrated by a Dutch court in the Urgenda case last year, the fact that there are many different polluters does not prevent an assessment of the contribution of any one of them.
Plan B. Earth will develop the technical tools and resources to support others in implementing existing principles of law.
There are also political reasons for inaction. Country X (a vulnerable and developing country) may have a compelling cause of action against Y (a rich country failing to exercise due diligence in controlling greenhouse gases emanating from its jurisdiction): indeed Country Y may be (along with others) threatening its very existence. However Country X may depend on Country Y for aid and trade and therefore be hesitant to litigate.
Plan B. Earth will support the development of strategies to overcome political obstacles to implementation of existing principles of international law.
Although everyone has an interest in preventing climate change and ocean acidification, individual actors may lack sufficient incentive or standing to assume responsibility for bringing a challenge on behalf of all. Essentially this is ‘the tragedy of the commons’ (which the 1998 Aarhus Convention aims to address).
Plan B. Earth will identify the various different avenues of legal action for the long-term goal, and support the development of networks and coalitions for minimizing and sharing the associated risk.
Ultimately it proved beyond the UNFCCC process to impose a regime for the direct regulation of GHGs. By fixing an ambitious temperature goal, however, and by requiring Parties to submit their Nationally Determined Commitments (NDCs), it helps to anchor legal action in public international law (as well as in domestic law or private law). General principles of law (such as the duty to prevent harm and principles of equity) may now be used to supplement the Paris Agreement, and to develop the legally binding framework of direct regulation that so many have been calling for for so long.
Types of legal action
The destructive impacts of climate change are many and various, and the pool of actual and potential victims large and diverse. Consequently the major polluters (and those financing them) face the prospect of an equally diverse range of legal actions. To date much of the litigation has been domestic (e.g. the Urgenda case against the Dutch Government); but established principles could be applied to different settings such as the following:
(i) a collective action by vulnerable and developing states, arguing that high polluting countries are breaching general principles of international law by acting in a way that threatens their security and survival;
(ii) a collective action by the victims of climate change induced flooding, in private international law, against overseas corporations profiting from fossil fuels;
(iii) an action brought by an NGO against institutional investors in fossil fuel production invoking norms of international human rights law (such as the right to life); and
(iv) criminal action against corporations for non-disclosure of climate change related liabilities.
The impact of such actions would be immediate and dramatic. Suddenly the highest polluters would have every incentive to mitigate the impacts of climate change; and investment would surge towards clean technologies.
The way ahead
Legal action, in other words, is now key both to setting the right economic incentives; and establishing a global regime of direct regulation.
Legal action is the most direct and immediate form of 'economic instrument':
It has long been assumed that climate change litigation would face substantial difficulties (particularly around causation and attribution). As striking legal successes have recently been demonstrating (including in the Netherlands, Pakistan and the US) that assumption turns out to be misplaced. A global movement of legal action now offers real hope.