Lawyers are going to court to stop climate change. And it might just work

Robinson’s words echo those from a previous court case about climate change – one that was won, against all odds, by the party demanding a more effective climate policy.

In that instance, it was Urgenda, a Dutch activist organisation promoting a sustainable society. The defendant in that 2013 case was the Dutch state.

It was a simple matter, Urgenda director Marjan Minnesma told me when the case had just started. “We are simply asking whether the state has the freedom to ignore what everyone knows is necessary,” she said, referring to the 1992 climate change treaty, in which countries agreed to take action to avoid dangerous climate change.

“As far as we are concerned,” Urgenda’s lawyer added at the time, “we have reached the point where the government had squandered that freedom.”

And the judge agreed. The 2015 verdict was groundbreaking, setting an international precedent. The judge ruled that Dutch climate policy was inadequate to prevent dangerous interference with the climate system, whereas the state had accepted that it was necessary to do so. The judge ordered the state to reduce emissions by 25% by 2020 – which went further than the state’s intentions.

If the state did anything less, it would be “negligent” because the government must protect its citizens against the dangerous effects of climate change. This kind of verdict was unprecedented.

That’s excellent news for the growing number of lawyers working on climate cases worldwide, for Sierra Robinson’s lawyers, and many others.

The legal principles invoked by climate cases are essentially universal in (western) legal systems: the polluter pays; it is forbidden to unnecessarily endanger others; high-risk activities require adequate preventive measures.

What’s new is that the law is now being used as a potential tool to break through political deadlock and entrenched interests to tackle climate change. So what are lawyers achieving?

Make the polluter pay: the case of a Peruvian mountain guide

Should the Peruvian taxpayer foot the bill? Or would it be fairer to have the fossil fuel energy companies cover this cost? After all, they knew that their fuels could cause climate change – which would melt the glaciers in the mountains above Lliuya’s home.

But Verheyen appealed, and on 20 November 2017, the court in Hamm, Germany, took many by surprise, ruling that the process could continueafter all.

This decision was followed by a two-year battle about the selection of independent experts who would provide evidence in court. The court has since appointed these experts, and their judgment of the case is expected in 2020. The lawyers and the court will also visit Lliuya in Huaraz to gauge the situation on site.

Verheyen has to prove that Lliuya’s home is in fact under threat from high water levels in the glacial lake, and that RWE’s emissions are partly to blame for the Earth warming and the glaciers in Peru melting.

There’s a storm on the horizon for fossil fuel companies

Climate change isn’t rocket science – that’s something a small army of lawyers have already discovered. In the US, 14 lawsuits have been filed against the biggest coal, oil and gas companies on Earth in recent years. What’s at stake? That these companies should foot the bill for climate action, not the taxpayers.

US cities such as New York, San Francisco, Baltimore and Oakland initiated these kinds of court cases from 2017 onwards. Never before had such powerful prosecutors taken up the gauntlet: the legal stamina of a metropolis like New York matches that of a company like ExxonMobil.

Most climate suits against companies are based on roughly the same premise. Coal, oil, and gas companies were already aware at an early stage, They deliberately swept this knowledge – certainly in the US – Then they advertised fossil fuels for decades, making hundreds of billions of dollars. They passed on the damage that this caused to subsequent generations. So it only seems fair that

Matt Pawa was one of the first lawyers to venture into this territory. In 2008, he filed a lawsuit against ExxonMobil and 23 other major emitters on behalf of the village of Kivalina in Alaska. Pawa argued that the village was under threat from rapid coastal erosion as a result of rising sea levels. He was claiming $400m in compensation to pay for the inhabitants to move.

And he lost. The judge ruled that this was a political issue. In 2012, the judge in the appeal procedure ruled that the energy companies were not liable because the federal government had introduced laws to limit emissions. A legal journal cautiously speculated about the “end of lawsuits concerning climate liability”.

But these were premature celebrations. That became evident when an insurer of one of the defendants unexpectedly stepped forward to offer Pawa its support.

So what happened? AES – one of the largest energy companies in the US, which like Exxon had faced the same lawsuit for damages in Kivalina – approached its insurer after the ruling to seek reimbursement for the legal costs. After all, the company had insured itself against liability suits.

The insurer, Steadfast, thought otherwise. Steadfast argued Kivalina’s liability claim was not just another “event” that the insurer would cover. Rather, it was a “natural and likely outcome” of the company’s actions.

AES “knew or should have known” that the company’s greenhouse gas emissions would cause climate change and damage the Alaskan village as a consequence. The judge ruled in favour of the insurer that the company was not covered for these kinds of lawsuits.

From that moment on, the fossil fuel companies were warned. There was a storm on the horizon.

The building blocks upholding the lawsuits

All of the suits currently filed against companies essentially rest on the same building blocks.

A share this size in global warming is not negligible and could be sufficient reason to call a company to account. But then the lawyers also have to be able to prove that the resulting global warming has caused a specific type of damage.

A specific company can then be held liable if it saw the damage coming and could have done something to minimise or prevent it. Those are building blocks three and four upholding all of the lawsuits that currently have been filed: that there is an overabundance of evidence that the fossil fuel companies knew that their activities were a threat to the climate and that there were other options available.

Major emitters, prepare yourselves

To the dread of the fossil fuel industry, the climate suits have made the question of who is responsible for climate change – for a long time a purely theoretical issue – real and tangible.

“If I were working as a lawyer for a company,” says Verheyen, “then right now I would be deliberating with consultants about how to offset the risks of lawsuits and climate damage.”

It’s becoming increasingly clear that this message has reached the boardrooms of For example, oil company Chevron suddenly started talking about the risks of climate litigation in its 2016 annual report. The company acknowledges that these cases are A year later, two other US fossil fuel companies, and said the same thing.

Accountants, lawyers, investors, management boards, and regulators therefore need to rethink the risks of fossil fuels and ignoring climate targets. All it’s going to take to set a precedent is one successful climate damage lawsuit.

The authors of Carbon Boomerangconclude that the wave of climate lawsuits will probably be “a serious driver of the energy transition”.

The Filipino investigation: climate damage as a violation of human rights

Is that true? There are good reasons to believe that human rights should be part of this discussion. According to John Knox, special rapporteur on human rights and the environment for the United Nations (UN), human rights treaties states and to guarantee a healthy and safe environment – The Inter-American Court of Human Rights even recently defined a healthy environment as an independent human right.

What’s legal one day can be illegal the next

What’s more, existing international law and to reduce their emissions. anyone neglecting this obligation is putting themselves at risk of prosecution.

Energy companies, on the other hand, can argue that it has never been “illegal” to emit CO2. In fact, to this day they’ve been receiving permits from governments to extract fossil fuels from the ground.

But according to Verheyen, who is defending the Peruvian mountain guide in his case against RWE, that’s beside the point. “A permit does not exempt you from all responsibility. There’s always the possibility that someone can be held accountable,” because, as Verheyen argues, there’s not a permit in the world that says you’re allowed to subject someone to climate damage.

And anyway, new legislation can always be introduced that would make it punishable to cause environmental damage. That’s what Elizabeth Warren, one of the Democratic presidential candidates, is advocating.

Being right doesn’t necessarily mean that right will prevail

In many ways, the climate lawyers have a lot going for them: the science, the spirit of the times, the moral argument. But just because they think they’re right doesn’t necessarily mean that right will prevail. It’s notoriously difficult, for example, to hold companies liable for the violation of human rights – never mind for human rights that still need to be violated by future climate disasters.

The climate cases against the fossil fuel industry in the US have achieved little so far. The federal judges that ruled on New York’s, San Francisco’s, and Oakland’s cases held that climate policy is a matter for Congress and the White House, not the federal court. The battle to see who is responsible for what and in which courts these cases should be heard will now be fought out in the appeals courts.

The wave of lawsuits demanding financial compensation based on past emissions entails certain risks as well, according to Jaap Spier, former advocate general of the Dutch supreme court. He’s apprehensive about damages claims as it is. He believes climate cases should focus on preventing any further damage, so there’s not necessarily a need to look at past actions. After all, anyone causing excessive emissions today can be held liable for that.

Moreover, Spier is afraid that the cases against oil and gas companies will lead to “demonisation”: by singling out the bad guys, “the rest” could shirk their responsibility. His point is that it’s not only the oil, coal, and gas companies that are guilty of climate change, and it wasn’t just companies who knew about climate change and barely took action. In Spier’s opinion, it’s too easy to revile one sector.

Channa Samkalden, a lawyer who has been litigating against Shell for almost 10 years for negligence related to oil pollution in Nigeria, agrees with him on that point. “Perhaps it sounds a little odd coming from someone in my position,” she says, “but if you want to succeed in climate cases, then they have to focus on very specific obligations and responsibilities. Oil and gas companies shouldn’t be judged for matters that lie beyond their power.”

She continues: “The problem won’t disappear just because responsibility has been dumped on someone else. There still remains a massive part of the problem, which can be traced back to the citizens themselves and the state.”

Now, it’s unlikely that individual citizens will ever be taken to court for their share in the emissions – the contribution of a single human being among 7.6 billion world citizens is, from a legal perspective, negligible. Governments, on the other hand, can be held accountable in court.

Whereas lawsuits against companies are usually about (preventive measures against) damages that are already inevitable, cases against governments revolve more around the obligation to steer the economy towards more sustainable waters – to prevent more damage from happening.

How one case inspires another

The mother of all examples for climate lawsuits against governments is the case by activist organization Urgenda against the Dutch state – the case where the climate won and the state was rapped across the knuckles.

Even before the Dutch supreme court issues its verdict tomorrow, a great deal has changed already according to Dennis van Berkel, legal counsel for Urgenda.

The Urgenda verdict proved that every country has a legal obligation to protect its citizens against climate change, Van Berkel says. “All countries are now aware that they can be held accountable if they take inadequate measures to prevent climate change. It exerts tremendous pressure on governments and parliaments.”

Since the Urgenda verdict, new cases have sprung up all over the world. From to and from New Zealand to people are making the case, in courts in over 20 countries, that governments that don’t manage to control emissions are being negligent – and that the court therefore has a right to intervene.

Nevertheless, the verdict showed that a unique development is taking place, says Urgenda lawyer van Berkel: the judge in New Zealand used the verdict in the Urgenda case to underpin his own. “No one had ever seen a verdict that had referenced so much jurisprudence from other countries.”

Just as one climate case inspires another, one judge’s verdict also fuels another’s. Climate law is thriving – and the lawsuits are even having an impact when climate lawyers lose their cases because the government has to demonstrate accountability in ways that they usually aren’t called on to do in parliament. There, the majority usually agrees with the coalition government anyway: party discipline means that ministers get away with vague commitments.

Climate cases aren’t ideal, but they are crucial

All lawyers who work on climate cases are aware that their work is groundbreaking. Their success is not always in their own hands – that depends on developments in climate science, the goodwill of judges, and the political culture in countries where they litigate. Pioneers usually face fierce resistance, but just as often they stay the course.

But let’s be honest. Law is not the ideal tool for tackling climate change. It’s slow, it doesn’t immediately reduce emissions, and it causes a great deal of friction and pigheadedness.

On the other hand, lawyers are now calling the most powerful organisations and politicians on Earth to account for their contribution to the problem and their incapacity or unwillingness to solve it. The climate lawyers are single-handedly releasing a new wave of moral clarity. They’re collectively writing a new narrative about accountability and our common future.

Not to overstate the case, but I actually think this could change the world.

Dig deeper

Climate change is about how we treat each other Our weather has changed so rapidly that we now stand on the brink of collapse. But simply speaking about the impending apocalypse will do nothing to change it. We need to reimagine human relationships. Read more here.

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