Can we sue? Climate change and the law (June 2018)
Around the world, communities, governments and corporations are facing each other in a growing number of court actions: demanding more action on climate change, seeking redress for the costs of climate change, alleging deceit or negligence, or conversely, seeking to overturn climate change legislation.
Speakers: Rosemary Lyster is the Professor of Climate and Environmental Law in the University of Sydney Law School. Her published work includes Climate Justice and Disaster Law. Tim Stephens is Professor of International Law and Australian Research Council Future Fellow at the University of Sydney. He is President of the Australian and New Zealand Society of International Law.
Here's what they told us:
Since 2009, research has moved to climate disaster law fall into four main areas:
1. Action by citizens against governments (failure to set targets)
2. Against government agencies - (failure to regulate for climate change; consent to fossil fuels - projects like coal mines)
3. Actions in tort (NYC) - (in public nuisance against fossil fuel companies)
4. Action against corporations - (litigation and stakeholder resolutions)
Two examples of Citizens against Governments re Emissions Targets & Policies:
1: US Constitutional case: Juliana v US (2015)
Brought by 21 young plaintiffs - lead plaintiff Kelsey Juliana, a climate activist from Oregon.
Argues that the US Government has failed to curb emissions despite knowing the dangers involved from at least the 1980s. Based on US constitutional law doctrines, including the doctrine of public trust - the US Govt as trustee of national public resources including the atmosphere, seas, coastlines, water and wildlife. US Govt has accepted this role (Deepwater Horizon litigation).
The Constitution (5th amendment) recognizes and preserves the fundamental right of citizens to be free from government actions that harm life, liberty and property. The nation's climate system, including the atmosphere and oceans, is critical to the plaintiffs' right to life, liberty and property. The plaintiffs seek various forms of relief, including:
An order for the defendants to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions; and draw down excess atmospheric CO2 to stabilise the climate system and protect the vital resources on which plaintiffs, now and in the future, will depend.
Goes to trial in October 2018, after failed interlocutory attempts to dismiss.
2: Dutch Constitutional Case: Urgenda v Dutch Government (2015)
Brought by 900 Dutch citizens (Urgenda is a Netherlands foundation seeking to accelerate transition from fossil fuels).
The Dutch Constitution (Article 21) provides: "it shall be the concern of the authorities to keep the country habitable and to protect and improve the environment."
June 2015: District Court of the Hague ruled in favour of Urgenda. Parties agree on severity and scope of the climate problem.
Urgenda argued the Dutch emissions target of 17% reduction by 2020 is well below 25% - 40% required to keep global average temperatures below the 2C increase.
Held: The state is responsible for effectively controlling Dutch emission levels. Moreover, the cost of measures ordered by the Court are not unacceptably high. Therefore the state should not hide behind the argument that the solution to the global climate does not depend solely on Dutch efforts. Reduction measures must be taken to prevent hazardous climate change.
** In December 2019, the Dutch Supreme Court upheld the ruling in favour of Urgenda.
3: An example of Claims in Tort - Citizens v Fossil Fuel Interests
January 2018: New York v BP, Chevron, Conoco Phillips, Exxon and Shell (17 claims filed). Based on torts of public nuisance, private nuisance and trespass.
"This lawsuit is based on the fundamental principle that a corporation that makes a product causing severe harm when used exactly as intended should shoulder the costs of abating that harm."
NYC alleged the defendants "produced, marketed and sold massive quantities of fossil fuels" despite knowing for many years that the use of fossil fuels caused greenhouse emissions that would accumulate and remain in in the atmosphere for centuries, causing "grave harm". Further, that the five defendants were responsible "for over 11% of all the carbon and methane pollution from industrial sources that has accumulated in the atmosphere since the dawn of the Industrial Revolution" and that the defendants were also responsible "for leading the public relations strategy for the entire fossil fuel industry, downplaying the risk of climate change and promoting fossil fuel use despite the risks." The defendants' actions "constituted an unlawful public and private nuisance and an illegal trespass on City property." NYC seeks an order for damages and granting an injunction to abate the public nuisance and trespass, should the defendants fail to pay damages for past and permanent injuries.
4: Litigation in Australia
Australia inherited its legal system from the UK. It is a common law country, with few, if any, environmental common law rights. Further, the Commonwealth Constitution contains no protections for the environment, nor does the Federal Government have a specific head of power to regulate the environment.
The federal government relies mainly on the corporations and external affairs powers to legislate in respect of the environment.
Barriers to successful litigated climate change outcomes include:
· In tort law, establishing the causal link ("but for…" test) between the emissions of a single emitter and the impacts of climate change; and
· In consumer law, while an individual or corporation may be sued for false or misleading environmental claims, compensation is only awarded to consumers, with no remedial benefit to the environment;
· In administrative review actions, the best outcome for a litigant challenging a decision, is that the decision is held to be invalid but is sent back to the decision-maker to be
made again, this time properly;
· no constitutionally enshrined human or environmental rights exist at either a state or federal level.
In Australia, success in climate change litigation has largely been limited to challenging executive decision-making, primarily in administrative law proceedings by way of judicial review. In such proceedings it is generally not for the Court to evaluate the merits of the proposed action, nor can the Court substitute its own opinion of what should be the outcome.