Negotiators at the COP23 climate talks in Bonn, Germany, last week made some incremental progress toward fulfilling the Paris Agreement's aim to limit global warming. But the intensifying urgency of the climate crisis requires bigger and bolder steps, including more lawsuits, according to a group of legal experts who met on November 15th in the basement of a converted church in downtown Bonn.
"We have a strong message for climate polluters: We'll see you in court," said Fijian activist Makereta Waqavonovono, a legal practitioner with the Pacific Islands Climate Action Network who made it clear that Fiji expects help from wealthier countries to pay for relocating about 800 coastal villages that will be flooded by rising sea levels in the next few decades.
At the panel, organized by the Heinrich Böll Foundation, climate activists and attorneys said that, as international climate policy keeps failing, litigation is becoming an increasingly important part of the strategy to force reductions of dangerous heat-trapping greenhouse gases—and to hold climate polluters financially accountable for the damage they've caused.
At the talks in Bonn, the question of compensation—Loss and Damage, in negotiator jargon—was once again shunted aside for the most part, said Naomi Ages, a climate liability expert with Greenpeace USA.
"Sometime soon there has to be a day of reckoning. Who's going to pay for the climate damage already caused?" she said. "All governments are obligated to consider the human rights aspects of climate change, and the International Criminal Court has said that climate change is a possible reason for charges on crimes against humanity," she added.
Seeking Damages From Countries—and From Companies
Several hundred climate-related lawsuits have been filed in the past 20 years, according to the litigation database at the Columbia Law School Sabin Center for Climate Change Law, and plaintiffs have already won significant battles, including in the Netherlands, where a court ordered the government to cut greenhouse gas emissions to protect a livable climate in a ruling known as the Urgenda decision.
Another test case moved forward during the early days of COP23 in a courthouse in Hamm, Germany, less than 100 miles from the conference. On November 13th, a regional district court decided that Peruvian farmer and mountain guide Saúl Luciano Lliuya could proceed with a claim against German coal giant RWE. The goal is to get the company to pay part of the cost of protecting his town from the threat of flooding caused by melting glaciers.
The court found that the company may be liable if Lliuya can prove that the company contributed to the risk—a decision that could open a legal door for many other potential plaintiffs in the years ahead, according to Carroll Muffett, president and chief executive officer of the Center for International Environmental Law.
"We have a wide and growing universe of plaintiffs, and the science is very good at identifying the harm to plaintiffs and attributing them to a small group of actors: the carbon majors," Muffett tells Pacific Standard in Bonn. "And once you have reduced your universe of defendants down to 50, that's something the courts can deal with."
"We can increasingly document that emissions attributable to these companies have contributed to warming temperatures and sea-level rise, and have even made some extreme weather events more extreme," Muffet continued, referring to the burgeoning field of attribution science, which is linking greenhouse gas pollution with climate impacts. One recent study, for example, pinpointed how CO2 emissions in the United States increased the likelihood of extreme heat in South America.
Another significant climate case started last week in a district court in Oslo, Norway, where citizens are claiming that the government violated an obligation to safeguard the environment for future generations, as specified in the human rights section of the Norwegian constitution. The plaintiffs are also claiming that the drilling permits issued in 2015 would violate Norway's obligations under the Paris Agreement.
And the U.S. government is facing a similar legal challenge, as a group of young citizens works to secure a legal right to a safe climate. The plaintiffs in Juliana v. United States say that current U.S. energy policy infringes on their fundamental constitutional rights, according to Elizabeth Brown, one of the attorneys working on the Our Children's Trust case.
"This is not an ordinary environmental case. It challenges the energy system the government has enabled," Brown says. The U.S. government has an enforceable duty not to endanger its citizens, and the facts show the government has known about the threats of climate change for nearly 60 years without acting to protect citizens.
"We are explaining the urgency of the crisis to the court with expert testimony," Brown says. "The scientists we work with are saying we're at a climate tipping point, and that judicial relief may be the only way to preserve a livable planet." As part of the legal remedy, the plaintiffs want the court to order the government to establish a national climate recovery plan.
Will Law Drive Policy?
Muffet tells Pacific Standard that it's only a matter of time before the first major judgments in climate law cases start to trigger a tectonic shift in policy and in energy markets. And new research by his organization, identifying thousands of potentially incriminating documents in the Smoke and Fumes report released last week, will help provide the legal foundation for such cases, by showing that oil companies and governments knew about the potential harm and did nothing to avoid or reduce the risk.
That trail of evidence goes back to the 1940s and can be used in court by plaintiffs looking to hold big polluters and governments accountable for climate change loss and damage, Muffet says.
"By 1968, we can demonstrate the industry as a whole was on notice. We can demonstrate they had the opportunity to take another path. One of the things they could have done was to warn the public, but they did not. They did the opposite. Not only did they fail to act, you can demonstrate culpable conduct over years," Muffet says, referring to years of misinformation campaigns by the oil industry.
The first few major judgments have the potential to fundamentally change the political and economic landscape, driving investment dollars away from fossil fuels in droves.
"Once the money starts to move, the energy system will start to move, too, and exposing the risks is key part of that," Muffet says.