Climate justice: international momentum towards litigation

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Climate litigation will dwarf all other litigation in terms of both the number of plaintiffs and the timeframe over which it can happen, according to a new report released by the Climate Justice Programme. The report, “Climate Justice: The international momentum towards climate litigation” looks at the growing number of climate litigation cases being taken across the world, and compares them with tobacco and asbestos cases.

Climate litigation is likely to be global, and with much bigger damages than seen with tobacco and asbestos, especially as governments are continuing to fail to take strong enough action to even keep warming to 2˚C, let alone pursuing efforts to limit it to the 1.5˚C urged in Paris.

Tobacco litigation was successful because governments took the lead resulting in a longer lasting solution. Asbestos is much more difficult because so many of the companies are now insolvent. More than 600,000 cases are being brought, with huge costs for the plaintiffs and extensive medical evidence needed to prove individual cases.

The tobacco industry has been held responsible for its part in the public health crisis, but the fossil fuel industry has evaded responsibility for climate change. This may be about to change, with Attorney Generals in the US currently investigating ExxonMobil for allegedly deceiving the public and investors over climate change and groundbreaking cases being brought and won around the world.

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 Germany utility giant RWE in German courts.

In the case of tobacco, the industry has been banned from lobbying on the framework convention on tobacco control and international law calls upon governments to pursue civil and criminal liability of the corporations that created the tobacco crisis.

In contrast, the Paris Agreement doesn’t even mention fossil fuels and their role. Here, the fossil fuel companies have been treated as stakeholders, rather than the source of the problem. Equally difficult is the fact that governments have so many ties with the fossil fuel industry and have colluded with the Carbon Majors in support of their industry.

The report also examines the legality of a clause agreed in Paris to limit liability on governments. This appears to be largely referring to state liability, rather than private, and may not include the fossil fuel industry – where a study has shown that just 90 of the “Carbon Majors” are responsible for two thirds of the man-made emissions currently in the atmosphere.

The report looks at how far each climate change case can be replicated and in which other jurisdictions a similar case could be brought. For example, the Dutch Urgenda case has triggered a case in Belgium and the US youth lawsuits are inspiring a child’s case in Pakistan.

The report finds that these cases are likely to be replicated across jurisdictions in both developed and developing countries. Human rights institutes in many countries are likely to eventually launch investigations into responsibility for climate damage, following the initiative in the Philippines.

As a result of the report’s findings, Climate Justice Programme has made a number of recommendations, most of which focus on the Carbon Majors – the 90 big oil, coal and gas producers responsible for two thirds of human-made emissions in our atmosphere today.

Those recommendations include removing subsidies, banning the Carbon Majors from lobbying at the climate talks, changing international climate law to allow litigation and introducing a levy to pay for loss and damage.