From acts of God to climate change lawsuits
The legal landscape is changing in novel ways.
Climate attribution scientists are investigating the extent to which human-induced climate change has increased the likelihood or severity of extreme events, ranging from the Russian heat wave of 2010 to California’s 5-year drought (2012-2017). For the first time, theBulletin of the American Meteorological Society found that the record global temperatures in 2016 (warmest year on record), extreme heat in Asia and the unusual “blob” of warm water off the Alaskan coast would not have been possible without climate change1.
In many legal systems, the establishment of a duty of care is underpinned by the foreseeability of damage. The ability to draw the link between greenhouse gas (GHG) emissions and climatic events once known as ‘acts of God’ has legal implications for companies, industries, governments, and other decision-makers with a duty to manage foreseeable harm and plan for the future2.
In fact, a wave of climate-related litigation associated with claims and liability for damages is already happening. By March 2017, 654 climate change cases were filed in the U.S., along with over 230 cases filed in another 23 countries (24 if one counts the European Union)3.
California Climate Lawsuits
Since 2017, several California municipalities and counties have filed climate lawsuits against fossil fuel companies, to try and hold them accountable for their role in climate change and its impacts on the community. Plaintiffs include the cities of San Francisco, Oakland, Santa Cruz, Imperial Beach and Richmond, as well as the counties of Marin, San Mateo and Santa Cruz.
The lawsuits were filed in state court against around 30 oil, gas, and coal companies including Chevron, BP, ExxonMobil and Royal Dutch Shell – a bold move considering they target some of the major corporate citizens that contribute considerable tax payments. California’s public nuisance law allows legal actions against activities that are “injurious to health” under common law.
California is spending hundreds of millions of dollars on climate resilience actions such as protecting infrastructure and retrofitting roads and bridges against rising seas. But climate change could bring billions of dollars in damage to public infrastructure, and the suits argue that fossil fuel companies should help pay for the climate impacts and damages their products have already caused and will cause in the future.
The legal challenges also allege that the companies have knowingly contributed to climate change for decades by continuing to drill for and sell oil, gas and coal, meanwhile “some even took steps to protect their own assets from rising seas and more extreme storms”, as well as developing new technologies “to profit from drilling in a soon-to-be ice-free Arctic”.
In January 2018, the New York City government filed a similar claim against five major oil companies in U.S. District Court for the Southern District of New York. The Los Angeles City Council members have introduced a motion urging a lawsuit, while Boulder, Colorado is also considering legal action.
The cases are in early stages. But any success would have profound ramifications for society, and could set a precedent for others: Phoenix, Arizona might sue over deadly heat; Boulder, Colorado over its shrinking ski season; Houston, Texas over torrential rain.
The suits are compared to the lawsuits filed by forty-six states and six other U.S. jurisdictions against the tobacco industry in the 1990s. The parties settled the cases, with tobacco companies agreeing to compensate states for health-care costs related to smoking (a minimum of US$206 billion over the first twenty-five years).
Climate-related Lawsuits Worldwide
Urgenda Foundation v. Kingdom of the Netherlands: In 2015, The Hague District Court agreed with the Urgenda Foundation and 900 Dutch citizens, that the Dutch government’s pledge of a 17% cut in carbon emissions by 2020 was insufficient to meet its constitutional “duty of care” towards Dutch society. It ordered a cut of at least 25% below 1990s.
Leghari v. Republic of Pakistan: In 2015, an appellate court in Pakistan granted the claims of Ashgar Leghari, a Pakistani farmer, that “the delay and lethargy of the State in implementing [the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014- 2030)] offend the fundamental rights of the citizens”. It directed the government to make a list of priority action points, and create an independent commission to monitor progress.
Lliuya v. RWE: Saúl Luciano Lliuya, a Peruvian farmer who lives in Huaraz, Peru, filed a suit in a German court against the German power company RWE, for knowingly contributed to climate change through substantial GHG emissions, and should be partially responsible for the melting of mountain glaciers near his hometown. In November 2017, the appeals court declared the case should proceed. The court’s recognition that individual polluters could potentially be held liable for their contribution to specific climate impacts marks a remarkable development in law.
Juliana v. United States: Twenty-one youths in their teens and early 20s filed their constitutional climate lawsuit against the U.S. government in the U.S. District Court for the District of Oregon in 2015. The suit contends that the federal government’s policies promote fossil fuel development, which has violated the youngest generation’s constitutional rights to life, liberty and property, and failed to protect essential public trust resources. If the Ninth Circuit Court of Appeals in San Francisco decides that the case should proceed to trial, it would be extraordinary.*
[*On 7 March 2018, the U.S. Ninth Circuit Court of Appeals rejected the Department of Justice’s dismissal request, and remanded the case to the trial court for further proceedings.]
The Philippines Human Rights Commission and the ‘Carbon Majors’ Petition
Following Typhoon Haiyan, Greenpeace, environmental and community groups and citizens successfully petitioned the Commission on Human Rights in the Philippines to investigate the responsibility of 47 oil, gas, coal and cement companies for human rights violations or threats associated with climate change (so-called ‘Carbon Majors’ petition). The Commission plans to hold multiple fact-finding missions and public hearings both within and without the Philippines in 2018.
This sets an important precedent concerning the liability of corporations for alleged human rights violations associated with climate impacts in a transnational context.
More to Come
Governments have duties to avoid harm to their citizens or those in their care under a range of constitutional, common law and/or statutory rights. Private professionals and companies that design, construct, manage or maintain public assets under climate threats could be exposed to the same, or greater, liability risk – as they may not benefit from sovereign immunity. Corporate directors and fiduciaries have duties to the corporation and its shareholders, to act in good faith in the best interests of the corporation, and also with care, due diligence and skill.
As attribution science becomes more robust, it generates more confidence, clear evidence and warnings about the elevating risk of extreme events, and it will become easier to affirm the foreseeability of certain climatic events and patterns in specific locations. Arguably, public and private actors alleged to have had duties of care or knowledge about specific climate-related risk should have foreseen and managed such risks on physical assets and people.
We can expect to see more citizens and organizations holding governments and private actors accountable for their actions or inactions on climate change in the years to come.
1. Herring, et al., Eds., 2018: Explaining Extreme Events of 2016 from a Climate Perspective. Bulletin of the American Meteorological Society, 99 (1), S1–S157.
2. Marjanac, S., L. Patton, and J. Thornton, 2017: Acts of God, human influence and litigation, Nature Geoscience, 10, 616-619.
3. UNEP, 2017: The Status of Climate Change Litigation – A Global Review http://columbiaclimatelaw.com/files/2017/05/Burger-Gundlach-2017-05-UN-Envt-CC-Litigation.pdf