CLIMATE JUSTICE: The international momentum towards climate litigation Keely Boom, Julie-Anne Richards and Stephen Leonard CLIMATE JUSTICE: The international momentum towards climate litigation Keely Boom, Julie-Anne Richards and Stephen Leonard 1 EXECUTIVE SUMMARY The Paris Agreement is ground breaking yet contradictory. In an era of fractured multilateralism it achieved above and beyond what was considered politically possible – yet it stopped far short of what is necessary to stop dangerous climate change. In the Paris Agreement, countries agreed to pursue efforts to limit warming to 1.5C, yet the mitigation pledges on the table at Paris will result in roughly 3C of warming, with insufficient finance to implement those pledges. The Paris Agreement was widely acknowledged to signal the end of the fossil fuel era, yet it does not explicitly use the words ‘fossil fuels’ throughout the entire document, nor does it contain any binding requirements that governments commit to any concrete climate recovery steps. Now, citizens and governments are beginning to seek redress in court with ground breaking cases emerging around the world, in a whole new area of litigation, some of which can be compared with the beginnings of - and based on some of the legal precedents set by - legal action against the tobacco industry. Other new strategies are focused not only on private industry but on the sovereign responsibility of governments to preserve constitutional and public trust rights to a stable climate and healthy atmosphere on behalf of both present and future generations. Climate litigation has spread beyond the US into new jurisdictions throughout Asia, the Pacific and Europe. Claimants are not only targeting the ‘Carbon Majors’, who are the world’s largest producers of oil, coal and gas, but are also targeting the governments around the world that are continuing to support and collude with the Carbon Majors by promoting, subsidising and approving a fossil-fuel based energy system, with the full knowledge of the catastrophic impacts of climate destabilization and ocean acidification that would result from continuing to burn fossil fuels. The Carbon Majors are responsible for two- thirds of the human-made carbon emissions in the atmosphere today. These corporations have made outrageous profits while outsourcing the true cost of their product upon the poor who are paying with their homes, ability to grow food and with their lives, as they begin to deal with the impacts that 1C of warming are wreaking on them. In addition, governments have allowed and encouraged this crisis to transpire, in many instances in violation of citizens’ fundamental rights. In response to this travesty, the Philippines human rights commission is investigating fossil fuel corporations for their role in the human rights impacts of climate change. A Peruvian farmer is seeking $21,000 in damages from German utility company RWE in German courts. State governments within the US are investigating fossil fuel corporations for allegedly lying to the public and investors over climate change. Efforts by individuals seeking damages from fossil fuel corporations are likely to increase over time, and will foreseeably be transnational in nature (i.e. plaintiffs may come from anywhere in the world and bring their cases in a wide range of jurisdictions). At the same time, citizens, including children, are increasingly bringing climate litigation against their governments and are achieving successes. A Dutch court decided in the Urgenda case that the Dutch Government was not doing enough to address climate change, and ordered it to do more. A Pakistani judge has declared the government’s inaction on climate change offends the fundamental rights of its citizens, including constitutional and human rights. Youth in the US, supported by Our Children’s Trust, are seeking science-based CO2 emission reductions from their governments based on constitutional and public trust rights and have had major recent victories in Washington, New Mexico, and in a federal lawsuit (where they have survived motions to dismiss brought by the US government as defendant and massive fossil fuel industry trade groups as intervenor-defendants). A young Pakistani girl and other youth around the globe, also working with Our Children’s Trust, are seeking to replicate this sort of constitutional, intergenerational, public trust litigation within their countries. In addition, 2 the first immigration cases have been brought by citizens of Pacific Island nations seeking to migrate to New Zealand. One claimant was successful in securing an immigration permit based upon humanitarian grounds. Rich, polluting countries have deliberately avoided the topic of liability and compensation for climate damages. Yet governments need to avoid repeating the disastrous history of asbestos litigation where the claims have crippled judicial systems at a time when the original defendants have ceased to exist or removed assets from the jurisdiction. Governments need to be held to their own affirmative fiduciary and constitutional responsibilities to their citizens to protect essential natural resources for the benefit of all present and future generations, and to pursue liability for fossil fuel corporations, starting with investigations recently launched in the Philippines and the US (as identified above). The importance of such efforts by governments could be explicitly recognised and actively encouraged in the international climate regime, just as it is in the international tobacco regime. Without this shift to judicial recognition and enforcement of sovereign governmental obligations to protect shared natural resources, including a healthy atmosphere, ocean and climate system, in accordance with the best available science, as well as private liability, legislative and executive action on the global domestic and international levels will remain as ineffective in the future as it has been in the past. We recommend that governments: 1. Remove the fossil fuel industry from the climate negotiations process and ban the industry from having a role or voice in setting climate change policy. 2. Acknowledge and discharge governments’ affirmative sovereign obligations to preserve essential natural resources, including a healthy atmosphere, ocean and climate system, in accordance with the best available science, for the benefit of all present and future generations, with comprehensive plans for emission reductions and protection and restoration of natural ecosystems. 3. As well as making appropriate contributions in their own right (public climate finance), introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, allowing for individuals and communities to directly access the funds made available through this process. 4. Remove fossil fuel subsidies and couple this action with the carbon levy to ensure that governments recuperate the true and complete costs of climate change from industry. 5. Introduce into international climate law a provision that recognises the role of private sector liability and encourages governments to take legislative action and legal actions under existing laws to deal with potential criminal and civil liability of the fossil fuel industry. 6. Take legal action against the fossil fuel industry within national jurisdictions to establish liability, recuperate the costs of climate change and expose internal industry documents. 7. Consider amending limitation periods if necessary to allow claimants to bring cases from the time that climate damages manifest. 8. Implement strategies to ensure fossil fuel defendants do not take action to avoid liability (e.g. through shifting assets to alternative jurisdictions or splitting up their companies). 9. Introduce legislation that specifically addresses climate liability if there is a need for clarification of the law or a need to change the law to make climate litigation feasible. 3 0 Introduction ................................................................................................................................... 5 1 The Paris Agreement ..................................................................................................................... 6 1.1 Background ............................................................................................................................ 6 1.2 Towards climate justice ........................................................................................................... 6 1.3 Loss and damage .................................................................................................................... 8 1.4 Loss and damage and the Paris Climate Agreement ............................................................... 9 1.5 Does the Paris Agreement exclude liability and compensation? ........................................... 12 2 Climate litigation ......................................................................................................................... 14 2.1 Background .......................................................................................................................... 14 2.2 Legal actions against companies ........................................................................................... 17 2.2.1 Philippines: Human rights complaint against Carbon Majors .......................................... 17 2.2.2 Germany: Peruvian farmer’s transnational case against RWE .........................................