Open thread: climate lawsuits

2018-12-18

in Law, Politics, The environment

People are making use of nearly every possible mechanism to try to cajole, convince, pressure, or force governments into adopting plans that are ambitious enough to avoid dangerous climate change.

One possible avenue of remedy is lawsuits, like when the Urgenda Foundation convinced a Dutch court to require the government to tighten its 2020 emission reduction target.

In October, The Economist reported:

The state of New York filed a lawsuit against ExxonMobil, claiming that it misled investors about the risk that regulations on climate change posed to its business. The suit alleges that the oil company “built a façade to deceive” how it measured the risk and frequently did not apply the “proxy cost” of carbon, which accounts for expected future events, to its decisions.

There are attractive and unattractive features to using the courts. On the plus side, they may be more open to evidence than politicians, who are generally loathe to do anything that might threaten jobs or economic growth in the near term. The biggest limitation is probably the courts aren’t policy-makers and defer to legislatures to actually design government policy. Also, because both the causes and the effects of climate change are spread across space and time it’s impossible to say that emissions from source X caused consequence Y. Also, since the people harmed are all around the world and largely in the future there is no court that can hear petitions from all of them.

That said, there is cause for hope that lawsuits will be part of an effective path forward and a means to hold governments to account when they want to claim to be climate champions while simultaneously favouring and protecting emitting industries.

{ 4 comments… read them below or add one }

. December 18, 2018 at 12:55 pm

How the courts can help in the climate change fight

A Quebec environmental group is taking the federal government to court. ENvironnement JEUnesse filed a class-action suit on behalf of Quebeckers aged 35 and under seeking a declaration that the government’s behaviour in the fight against climate change infringes on their human rights. The claim also seeks punitive damages.

They are not alone. Similar claims have been filed on behalf of young people in other jurisdictions, including the Netherlands, the United States and Colombia.

Understanding and addressing the challenges of climate change is rapidly becoming the next legal frontier. As environmental lawyer David Boyd recently noted, litigation is one of the most powerful tools for holding governments’ feet to the fire and demanding accountability. The same is true in respect to corporate actions. This raises some interesting concerns.

Consider some of the challenges in addressing systemic risks. They are fraught with complex causal chains, with potential triggers occurring at distant points in time, space and degrees of apparent relatedness. Predicting the probability, cost and magnitude of risk, or anticipating where an impact will be felt most acutely, is difficult. Our legal systems are based upon learning through trial and error. This model may not be well-suited to risks where the potential damage is so severe that we may no longer be able to learn a lesson if it occurs.

. December 18, 2018 at 1:43 pm

“I agonise waiting for the word for the fate of my very own relatives… I speak for the countless people who will no longer be able to speak for themselves after perishing from the storm.” With these words, Yeb Sano, the Philippines’ representative to the 2013 un climate summit in Warsaw, Poland, became the unexpected figurehead of those talks. Three days earlier, on November 8th, supertyphoon Haiyan had barrelled into his country, cutting off all communication with the outside world. More than 6,000 people died in the storm.

Mr Sano’s emotional appeal to his fellow delegates drew a direct line between climate change and Haiyan. Whether the damage caused by extreme weather events can be linked to human emissions of greenhouse gases is one of the hottest topics in climate science. And that debate leads directly to another: if this link can be established, who bears the responsibility?

Both of these questions are at the centre of an inquiry by the Philippine Commission on Human Rights, whose latest hearings took place in London earlier this month. It is the first time a human-rights commission has heard evidence on whether large emitters violate basic human rights by causing climate change.

Addressing the hearing from Geneva, Benjamin Schachter, who acts for the Office of the un High Commissioner for Human Rights on such matters, said that the impacts of climate change “directly and indirectly threaten the full and effective enjoyment of a range of human rights, including the rights to life, water and sanitation, food, health, housing, self-determination and development.” Certain studies support this. Felix Pretis of the University of Oxford has shown that even 1.5°C of warming (relative to pre-industrial times) will reduce economic growth in some regions, and that the tropics will feel this impact more than other parts of the world. Some studies predict that a rise in the number of heat-related deaths in many parts of the world, South-East Asia among them, will outweigh any reduction in the number of cold-related deaths.

. January 4, 2019 at 12:52 am

The G.C.C. disbanded in 2002 after the defection of various members who were embarrassed by its tactics. But Exxon (now Exxon Mobil) continued its disinformation campaign for another half decade. This has made the corporation an especially vulnerable target for the wave of compensatory litigation that began in earnest in the last three years and may last a generation. Tort lawsuits have become possible only in recent years, as scientists have begun more precisely to attribute regional effects to global emission levels. This is one subfield of climate science that has advanced significantly since 1979 — the assignment of blame.

A major lawsuit has targeted the federal government. A consortium of 21 American children and young adults — one of whom, Sophie Kivlehan of Allentown, Pa., is Jim Hansen’s granddaughter — claims that the government, by “creating a national energy system that causes climate change,” has violated its duty to protect the natural resources to which all Americans are entitled.

In 2015, after reports by the website InsideClimate News and The Los Angeles Times documented the climate studies performed by Exxon for decades, the attorneys general of Massachusetts and New York began fraud investigations. The Securities and Exchange Commission separately started to investigate whether Exxon Mobil’s valuation depended on the burning of all its known oil-and-gas reserves. (Exxon Mobil has denied any wrongdoing and stands by its valuation method.)

The rallying cry of this multipronged legal effort is “Exxon Knew.” It is incontrovertibly true that senior employees at the company that would later become Exxon, like those at most other major oil-and-gas corporations, knew about the dangers of climate change as early as the 1950s. But the automobile industry knew, too, and began conducting its own research by the early 1980s, as did the major trade groups representing the electrical grid. They all own responsibility for our current paralysis and have made it more painful than necessary. But they haven’t done it alone.

. January 15, 2019 at 1:27 pm

U.S. company trying to sue Canada over coal phase-out made a bad bet, says academic

A U.S. company that owns coal mines in Canada is considering suing the federal government over the phasing out of the fossil fuel, but one academic calls that plan “a bad bet.”

“Coal is on the way out,” Kyla Tienhaara, Canada Research Chair in Economy and Environment at Queen’s University, told The Current’s guest host Matt Galloway.

She added that Westmoreland Coal Company should have been aware of this when they bought seven mines in Canada in 2013.

International governments have been ramping up their efforts amid an increased urgency to reduce greenhouse emissions, said Tienhaara.

“I think [they made] a bad bet, and why should we pay for it?”

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