Climate justice: lawyers make a stand - Rebecca Lowe

Devastating damage to the ecosystem is inevitable if global warming exceeds two degrees Celsius, according to the UN Framework Convention on Climate Change –yet binding emissions targets remain elusive. Global Insight asks the world’s leading environmental lawyers if litigation can go where lawmakers fear to tread.

REBECCA LOWE

The Inuit people of the Arctic were once almost wiped out, so legend has it, after over-hunting the plump, healthy caribou, leaving just the sick and frail to sustain them. They were only saved when the first woman of the tribe used her powers to summon the spirit of the wolf, which winnowed out the weakest members of the herd. Over succeeding generations, the caribou – and, consequently, the Inuit – were able to rebuild their strength and prosper once more.

Recounting this tale at a TED (‘technology, entertainment, design’) talk in March, Dutch environmental lawyer Roger Cox used it as a metaphor for climate change. We are all the Inuit, he said, and the caribou are the resources we have exploited. ‘But luckily we too have a wise woman we can turn to,’ he continued. ‘Lady Justice. She can point us a way out of this dangerous, deadlock situation by using the law [...]. Judicial intervention is now our only hope of averting dangerous climate change.’

The idea of using the law to achieve environmental justice is not new. Using it to fill a vacuum where climate change policy has failed, however, is a novel – and some might say revolutionary – concept slowly emerging across the world. From rising numbers of tort claims in the US, to administrative challenges in Australia, to public interest litigation in the EU and Asia, the pressure on courts to progress the climate agenda is gradually gaining momentum.

One powerful developing trend is the use of human rights law as a tool to hold lawmakers to account. While an international ‘right to a healthy environment’ is yet to be drafted, over 90 countries and several US states have now adopted a version of this right in their constitutions. Several others have ‘greened’ existing laws by acknowledging the impact environmental harms can have on a range of rights, including life, health and food.

Using this approach, the Arctic Athabaskan Council last year filed a claim with the Inter-American Commission on Human Rights (IACHR), alleging that Canada is undermining Athabaskan rights by poorly regulating black carbon (soot) emissions. Its strategy is reminiscent of a landmark case in 2005, when the Inuit accused the US of violating their human rights by failing to sign the Kyoto Protocol. Disappointingly for the tribe, however, the IACHR proved less effective than the wise woman of legend, and rejected their petition.

Indeed, success has so far been elusive for climate change claims. The pitfalls, it seems, are manifold. Holding governments to account for targets they have not signed up to, or targets deemed inadequate, is seen by most judiciaries as an unacceptable venture into the legislative arena. There are also serious problems regarding liability and causality. Can a state realistically be held responsible for a phenomenon caused by the collective emissions of billions of people and entities across the world? Can it be liable for trans-boundary harms, considering most domestic and international laws are not designed to cross borders? And where could such hearings be held anyway in the absence of a global forum for such disputes, or even an agreement on which to base one?

Holding emitters themselves to account for climate change-related events poses even greater challenges. While human rights responsibilities on companies are growing – the landmark UN Guiding Principles for Business and Human Rights were endorsed by the UN Human Rights Council (UNHRC) in 2011 – corporations are not legally bound by international law and human rights obligations, and pinning blame on them is likely to stretch the most activist of judiciaries.


‘This is a huge human rights issue. And the problem is, it’s an intergenerational issue. The injustice is caused to our grandchildren and great grandchildren. I wake up sometimes thinking, what will they think about us? We could have done so much more and didn’t’


Former President of Ireland Mary Robinson
UN Special Envoy for Climate Change
 

However, that hasn’t stopped a growing body of lawyers, NGOs, authorities and activists employing ever more creative forms of argument to have their day in court. For them, the issue is too important to be left to governments alone, whose efforts have long been stunted by short-sightedness and self-interest.

Former President of Ireland Mary Robinson, UN Special Envoy for Climate Change and former UN High Commissioner for Human Rights, is one such activist. Following a call to arms at the IBA Annual Conference in Dublin in 2012, she prompted the establishment of the IBA Climate Change Justice and Human Rights Task Force, which in September 2014 published its first report: ‘Achieving Justice and Human Rights in an Era of Climate Disruption’ (see box 1, opposite).

Speaking to Global Insightin October 2012, Robinson stressed there is no more time to waste. ‘This is a huge human rights issue,’ she said. ‘And the problem is it’s an intergenerational issue. The injustice is caused to our grandchildren and great grandchildren. I wake up sometimes thinking, what will they think about us? We could have done so much more and didn’t.’

Threat and diktat

It is now widely accepted that global warming will severely impact human rights across the world, disproportionately affecting the poorest regions. Even limiting temperatures to a two degree rise, agreed as an informal goal by the 195 state parties to the UN Framework Convention on Climate Change (UNFCCC), will be catastrophic for many communities. Despite this, a universal, binding target to achieve this aim is yet to be agreed. The Kyoto Protocol, unratified by the US and with no binding targets for developing nations – including the biggest emitter, China – expired in 2012, and as yet nothing has been adopted to replace it. (See box 2, the world’s biggest polluters by state.)

Frustrated at the inertia, lawyers across the world are preparing for battle. One core conflict zone is the UK, where environmental legal NGO ClientEarth is attempting to end impunity for inaction on environmental issues by suing the government for missing its European Union (EU) targets on nitrogen dioxide (an ‘indirect’ greenhouse gas). ‘Our argument is, if the government can just choose whether it abides by laws or not then we no longer have a democracy under the rule of law,’ says ClientEarth CEO James Thornton. ‘It’s rule by threat and diktat.’

Following ClientEarth’s petition, the UK Supreme Court found the government in breach of the EU pollution directive in May 2013. The Court has stayed proceedings, however, until the European Court of Justice (ECJ) issues clarification on several aspects of the law. Spurred into action, the European Commission in February launched a separate case against the UK for failing to meet its emissions targets.

The case is both bold and creative. A lawsuit launched last year in the Netherlands, however, goes even further. The Urgenda foundation, represented by Roger Cox, contends that the government must surpass its EU commitments in order to hit the more ambitious UNFCCC two degree threshold. Failure to do so constitutes a tort of negligence, as well as a violation of citizens’ human rights, the NGO claims.

‘These are likely just the start of cases to be taken up in various jurisdictions because people are rightly very frustrated and pessimistic about what governments are achieving on this issue,’ says Gowlings environmental law partner David Estrin, based in Canada, Chair of the IBA Task Force. ‘One way that pressure can be put on is at the national level, and I think this is gaining momentum.’

Why the Netherlands should be dragged through the wringer in lieu of more polluting states is a valid question (see boxes 2 and 3). Yet being a bit-part player may not be enough to escape liability; with increasing data available to quantify individual emissions, each country could be forced to shoulder its part of the blame. In its ground-breaking 2007 judgment in Massachusetts v Environmental Protection Agency (EPA), which ultimately compelled the EPA to regulate greenhouse gas emissions, the US Supreme Court noted that ‘a reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere’.

The Massachusetts case, originally filed by NGOs in 1999, lasted eight years. Such patience and determination may be exactly what the climate change agenda needs, believes Sidley Austin environmental partner Roger Martella, Vice-Chair of the IBA Task Force, who was EPA General Counsel when the ruling was made. ‘NGOs are willing to roll the dice and take more progressive legal positions even if they don’t think there is a high likelihood of winning, because they believe they will change the momentum of the issues,’ he says. ‘I think they will play a disproportionately important role in the evolution of climate change issues.’

 

Expanding the law

Massachusetts v EPAhas been arguably the most impactful climate change litigation brought in US courts. Others, while imaginative, have proved less successful. One idea slowly gaining ground is the idea that governments have an obligation to protect the environment in a form of ‘public trust’ for future generations, though US courts have to date been reluctant to accept such an argument.

Courts elsewhere – in Australia, South America, Europe and Asia – have shown themselves more amenable to the growing body of global environmental norms, however. These include the ‘no harm rule’, ‘sustainable development principle’, ‘polluter pays principle’, ‘intergenerational equity principle’ and ‘precautionary principle’. In Australia, courts have frequently invoked these doctrines in judicial and merits reviews to prompt reforms in environmental legislation, and climate change-associated risks are now taken into account in almost all planning decisions.

‘I think we are on the cusp of another phase in environmental law that is associated with climate change,’ says Brian Preston, Chief Judge of the Land and Environment Court of New South Wales and member of the IBA Task Force. ‘In Australia, we have seen a lot of action brought by green groups, either to force the government to act or to force it to get corporations to act.’

It is in Asia, however, where the courts have been most progressive. In Pakistan and India, public interest litigation has proved a highly effective means of advancing the environmental agenda in the face of government impotence. Both Supreme Courts have invoked international principles in their rulings, vastly expanding domestic law and ‘greening’ existing constitutional rights. The Indian Supreme Court has even gone as far as to demand a government ‘PowerPoint presentation’ to assess progress on its ruling to clean up the Ganga river.

‘Strictly speaking, certain covenants of international law require ratification before being applied,’ says Tassadduq Hussain Jillani, Chief Justice of Pakistan until July 2014. ‘But the courts have been willing to invoke international human rights norms if they are relevant […]. We are living in an interdependent world, not the 18th century, and the courts are very conscious of that.’

In India, one man has done more for advancing the environmental agenda than all other lawyers combined: Mahesh Chandra Mehta. Largely because of the dozens of cases he has brought before the courts, international principles have become enshrined in Indian law. Remarkably, following a Supreme Court ruling in 1998, New Delhi became the first city in the world to compel all public transport to run exclusively on compressed natural gas.

The pollution cases taken on by Mehta have tended to be fairly localised, focusing on specific emitters and their direct impacts; he is yet to bring a claim attempting to prove liability for a climate change event, such as sea level rise or a natural disaster. However, the body of precedent he has helped to establish means Indian courts may be best placed to deliver claimants their first success – and he hopes this will be soon. ‘If we can’t save the climate, the whole world is lost,’ he says. ‘The whole developmental model is wrong and we have to change it. We have to shun greed, and we must have strong leadership in the world. That leadership must come now.’

Making polluters pay

Such leadership must not just come from governments, many believe, but corporations. The ‘polluter pays principle’ has received support from most countries of the Organisation for Economic Co-operation and Development (OECD) and the EU, and a state claim against an EU company may not be far away. While the EU Directive warns that ‘liability is [...] not a suitable instrument for dealing with pollution of a widespread, diffuse character’ – the type of pollution arguably responsible for climate change events – ECJ Advocate General Juliane Kokott has said that states enjoy a ‘broad margin of discretion’ in such cases ‘to extend liability to other polluters’. In short: the ‘diffuse’ nature of the harm cannot become an excuse for impunity.

According to a 2014 report by the Australian NGO Climate Justice Programme, ‘Carbon Majors Funding Loss and Damage’, 63 per cent of carbon emissions originate from fossil fuels extracted and cement manufactured by just 90 entities, with Chevron Texaco, Exxon Mobil, Saudi Aramco and BP heading the list (see box 4, the world’s biggest polluters by extraction company). To offset their environmental costs, these companies should pay a levy to the poorest communities suffering the worst impacts of climate change, the report argues. Others point out, however, that it would be equally logical to pin responsibility on companies further along the supply chain, such as power stations and car manufacturers (see box 5) – or even customers.

Indeed, proving corporate liability for climate change will not be an easy feat. Businesses are not generally beholden to international treaties, and if they are abiding by national laws there may be limited cause for action. ‘Showing that this corporation caused this particular climate change event is going to prove unbelievably difficult under any sensible system of law,’ says Peter Rees QC, former Legal Director of Shell and a member of the IBA Task Force. ‘The idea of an individual, community or even a state being able to bring a claim successfully for the results of climate change is a long way off.’

‘What is novel about climate change is that it results from the lawful actions of millions of entities over the course of more than a century,’ adds environmental law expert Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and former head of Arnold & Porter’s New York office. ‘I agree there is a growing momentum for such liability, but it will be extraordinarily difficult to pin liability on particular parties.’


‘I think we are on the cusp of another phase in environmental law that is associated with climate change’


Brian Preston
Chief Judge of the Land and Environment
Court of New South Wales and member
of the IBA Task Force

Such hurdles may prove insurmountable. Named defendants are likely to sue others, who will in turn sue more, Gerrard points out – until, as happened in one case in 1980, cases grow so large that new courtrooms have to be built to accommodate everyone. This could mean courts find themselves ‘embarking down a wormhole’, Gerrard warns.

This does not seem to have deterred claimants, however. In the US, dozens of tort claims have been filed for nuisance, negligence and even civil conspiracy (misleading the public over climate change). The targets of these suits have usually been large emitters in the energy, power and transportation industry. In Kivalina v ExxonMobil, the native Inupiat village of Kivalina in Alaska brought a public nuisance suit against 24 energy and power companies due to coastal damage caused by climate change. However, in September 2012 the court held that there was not sufficient connection between the alleged harm and claimants, and it was fundamentally a political, not legal, issue.

Most claims have gone the same way. However, Global Insighthas learnt that several NGOs are currently working on more effective ways to hold corporations to account. One approach might be a through a form of ‘product liability’ lawsuit, according to ClientEarth barrister Elspeth Owens. ‘If you sell a product that turns out to be dangerous, you can be held liable for damage caused by the product. Whether those sorts of laws can be applied to fossil fuel products has not yet been examined by the courts […]. It may be that issues play out [...] in the same way that common law principles were developed in the context of illnesses caused by exposure to asbestos and other industrial diseases.’

What has also yet to be examined by the courts is the thorny issue of extraterritoriality. Climate change is a global event, where causes and consequences cross borders, but both domestic and international laws tend to apply only to harm caused inside a state. Courts across the world have shown themselves reluctant to expand jurisdiction beyond their borders – though Europe has taken strides in this direction.

One historic avenue for such disputes, the US Alien Tort Statute (ATS), suffered a near-fatal blow last year when the Supreme Court ruled in Kiobel v Royal Dutch Petroleum Co that the law contained a ‘presumption against extraterritoriality’. The law should be used only if ‘the relevant conduct’ occurred within the US, the Court said, regardless of whether the parent company, such as ExxonMobil or Chevron, is headquartered there. The ruling prompted a spate of ATS case dismissals in the lower courts, and activists feared a valuable weapon against corporate wrongdoing may have been lost.

While some commentators agree that Kiobelhad no place in American courts (neither company nor the alleged misconduct had a strong connection to the country), the rejection of claims involving the overseas conduct of US multinationals is clearly a concern. Such cases may still see the light of day, says John Knox, UN Independent Expert on Human Rights and the Environment and member of the IBA Task Force. ‘I don’t think there’s any doubt that Kiobelclosed a door that human rights advocates had been using with some success. Whether the Supreme Court might open it a little in the future remains to be seen. But I think what we are also going to see is increasing numbers of cases brought to other fora, such as European courts and US state [rather than federal] courts based on domestic tort law.’

Despite the Kiobelsetback, international rules governing corporate conduct and disclosure are unmistakably hardening. Several mechanisms place pressure on businesses to behave well, including the UN Global Compact and OECD Guidelines for Multinational Enterprises. The latter employs national Global Contact Points to enforce cooperation, and in 2011 adopted human rights provisions in line with John Ruggie’s UN Guiding Principles for Business and Human Rights, which place a responsibility on corporations to ‘respect’ human rights.

These initiatives are all firmly in the realm of ‘soft’ law, but they may not remain that way for long. In June 2014, the UNHRC established a working group to draft a way to make corporations legally accountable for human rights violations – though what form this will take, and within what time-frame, is as yet unclear.

‘It’s not as if corporations are in some kind of vacuum in international law and don’t have any obligations,’ says Knox. ‘You can certainly imagine the Guiding Principles helping to create a growing, incipient legal norm. Human rights can also be used to inform other legal obligations, such as how “harm” is defined under domestic tort law.’

Global warming, global justice

For Rees, the Kiobel ruling was not the obstruction to justice many suggest. Extraterritorial suits with a ‘US nexus’ arguably should have a case for being heard in US courts, he believes, but using the US a forum for cases with no connection at all has ‘set back 30 years the idea of having somewhere more central’ to hear these claims. ‘To me, the US, with its punitive damages and contingency fees, is the wrong place to bring these cases,’ he says. ‘It shouldn’t be done on the basis of one country’s overall principles. We need consistency of approach.’

Some may question his impartiality on the subject as former Legal Director of Shell (Royal Dutch Petroleum), but Rees’ push for ‘somewhere more central’ to hear such cases has broad support. For many, this would ideally comprise an independent environmental court, with specialised expertise. While the International Court of Justice (ICJ) and regional human rights courts have proved themselves capable of hearing environmental suits, they are only open to state-on-state actions, and jurisdiction at the ICJ is voluntary.

Yet where a world court is concerned, the devil is in the detail. Would it hear claims from individuals and NGOs, and could action be taken against corporations? From what laws or treaties would it derive its authority? Could it hear criminal cases or purely civil? What human rights and environmental principles would it include? Where would the lines be drawn for liability and causality? Would all countries have similar thresholds or would developed countries bear the brunt? And – most importantly – how could rulings ultimately be enforced?

 

‘I think a world environmental court is likely to be a long way off,’ says Diane Shelton, Manatt/Ahn Professor of International Law at the George Washington University and member of the IBA Task Force. ‘The big powers are very concerned about being sued for climate change and remote harms, so they are reluctant to expand that potential.’

The likelihood of US and China signing up to a global court with broad powers currently seems almost nil. Their support for international justice has been muted, at best, and neither has ratified the Rome Statute underpinning the International Criminal Court. Bearing that in mind, the IBA Task Force report encourages states to use the Permanent Court of Arbitration (PCA) for environmental disputes, while working towards the creation of an ‘ad hoc’ environmental tribunal open to claims from states, NGOs, individuals and corporations. The ultimate aim, the report states, should be a ‘permanent formal judicial institution’.

In the meantime, the Task Force also recommends the drafting of a Model Statute on Legal Remedies for Climate Change, intended to develop consistent international and domestic standards. The statute would aim to clarify controversial issues, such as jurisdictional reach, who can bring a claim, and thresholds for causation and liability.

Indeed, as the world remains at an impasse on the big issues, short-term solutions that better complement national self-interest may prove more practicable. These could include amending World Trade Organisation (WTO) rules to accommodate climate change policies, and bolstering the WTO’s ability to hear environmental disputes. Robust climate change clauses in bilateral trade agreements could also be encouraged.

The most effective measure, some believe, would be the establishment of a global carbon budget. Currently, only 12 per cent of the world’s emissions are covered by trading schemes, though China has an impressive six pilot projects in place. ‘If we put a global price on carbon, human nature would find a way to produce greener energy,’ says Robert Jamieson, national practice head of Ashurt’s environmental team, based in Melbourne, Australia – the only country to repeal a successful trading system. ‘I think we’re at the stage where we could, with good leadership, transition all our economies from high carbon to much lower carbon economies.’

Abdication of responsibility

Such leadership is easier said than done, it seems. In its absence, the law clearly has a critical role to play. But the courts cannot solve the world’s problems alone. Without a global, binding emissions agreement – working towards an international forum for disputes – the impact of litigation is likely to be limited to pockets of activity among more activist judiciaries, leaving the greater problems unresolved.

For committed environmentalist Bianca Jagger, Council of Europe Goodwill Ambassador and Chair of the Bianca Jagger Human Rights Foundation, the frustration is palpable. ‘This is an abdication of the responsibility of world leaders, that they are unable to come
together to sign a treaty that will be enforceable,’ she says. ‘This has to stop. We have to do something differently.’


‘What is novel about climate change is that it results from the lawful actions of millions of entities over the course of more than a century [...] It will be extraordinarily difficult to pin liability on particular parties’


Michael Gerrard
Andrew Sabin Professor of Professional Practice at Columbia Law School;
former head of Arnold & Porter’s New York office

 

The key, Jagger believes, is awareness.

In India, Mehta managed to litigate his way to convincing the government to improve environmental education through a Supreme Court petition in 1991. Lawyers elsewhere may struggle to replicate his success, but others could take up the baton in their stead. Lawmakers do not work in silos; they, like corporations, respond to public pressure. Court cases, campaigns and even simple consumer choices send a message: that further inaction will not be condoned.

In the 19th century, Victorians responded to the stench from the sewage in the Thames by closing their windows and dousing their curtains in caustic soda. The smell seeped through, however, and eventually more rigorous action was taken: the 1875 Public Health Act.
As temperatures continue to rise and communities continue to suffer, now is the time for everyone – states, companies, lawyers, citizens – to fling open their windows and address the problem head on.

‘If people unite, they can push the agenda,’ says Mehta. ‘Every citizen has a role to play, collectively and individually, and only then can we achieve justice.’


Rebecca Lowe is Senior Reporter at the IBA and can be contacted at rebecca.lowe@int-bar.org