06/01/2019

A Surge Of Climate Lawsuits Targets Human Rights, Damage From Fossil Fuels

InsideCimate News - Nicholas Kusnetz

Cities, states and the fishing industry want courts to hold fossil fuel companies accountable for global warming. Others argue government inaction violates rights.
Rhode Island in 2018 became the first state to sue the fossil fuel industry over climate change, citing the growing risks from sea level rise and extreme weather. Credit: John Greim/LightRocket via Getty Images
A climate denier is in the White House, pushing policies that will boost emissions. Congress is doing nothing to stop him. So citizens and local governments who are facing the impacts of rising seas, worsening heat waves and extreme weather are increasingly looking to the courts for help.
The past year saw a surge in new lawsuits filed against fossil fuel companies, and major developments in cases pressing governments for action in the United States and abroad. And while the plaintiffs haven't secured any substantial victories in U.S. courts, they may be scoring a different victory by drawing attention to the inaction of Congress and the Executive Branch, said Michael Gerrard, faculty director at the Sabin Center for Climate Change Law at Columbia Law School.
"Lawsuits, even if unsuccessful, can help shape public opinion," he said. "Mr. Scopes lost the monkey trial, but it led to a lot more awareness about the issue of teaching evolution."
In Colombia and the Netherlands, citizens won rulings in 2018 ordering their governments to cut emissions and protect forests. By framing climate change in terms of human rights, those cases and similar ones filed in the U.S. and other countries are transforming how the courts address the issue, said Patrick Parenteau, senior counsel in the Environmental and Natural Resources Law Clinic at Vermont Law School and an informal adviser to some of the plaintiffs' lawyers.
"It's pushing the boundaries of law everywhere," he said. "Climate change is changing the law."
There are currently a couple of dozen significant lawsuits around the world that are asking courts to order actions by governments or the fossil fuel industry in response to climate change. Here's a round-up of the various approaches.

Climate Liability
What began with a handful of California cities and counties in 2017 spread across the country this past year, as New York City, Baltimore, Rhode Island and local governments in Colorado and Washington State sued fossil fuel companies.
The plaintiffs are seeking compensation to help pay the costs of protecting residents from rising seas, worsening wildfires, extreme heat and other effects of climate change. Two law firms are arguing most of these cases. They allege that energy companies knew about the dangers associated with their products, but lobbied against capping emissions anyway while sowing doubt about climate science.
In November, the West Coast's largest commercial fishing association filed a similar suit. Algal blooms tied to warming waters have led to closures of the crab fishery in recent years, and the plaintiffs are seeking compensation from the fossil fuel industry for the associated losses.
The Pacific Coast Federation of Fishermen's Associations sued several fossil fuel companies, seeking damages on behalf of crab fishers and local communities hurt by climate change in California and Oregon. Credit: Justin Sullivan/Getty Images
Parenteau said it may be harder for energy companies to dismiss the case as a political stunt, a tack they've taken against the lawsuits filed by local governments.
"The 'industry versus industry' does put another spin on it," Parenteau said. "This is real cold dollars and sense."
The only substantive rulings have been dismissals of cases brought by San Francisco and Oakland—whose cases were joined—and New York City. The judges, both in federal district courts, wrote that it was ultimately up to Congress to regulate emissions, and that climate change, as a global issue, would be better addressed by diplomats and the Executive Branch than U.S. courts. The cities have appealed the rulings, and those appeals are some of the cases to watch this year.
Despite limited success so far, these liability lawsuits may continue to spread. At the annual international climate negotiations in Poland, the foreign minister of Vanuatu—a small island nation at risk of losing much of its territory to rising seas—said his country is forming a coalition to explore legal action against fossil fuel companies and governments that have supported them.
Gerrard also said that worsening natural disasters tied to climate change could prompt new lawsuits.
"It'll be interesting to see whether anybody brings climate claims in any of the lawsuits that will arise from the California wildfires or any of the multiple hurricanes we've been having every year," he said. "There might be claims that a company or a government agency should have anticipated these extreme events in designing or constructing buildings or other infrastructure."

Constitutional and Human Rights
The lawsuits filed against fossil fuel companies target one of the world's most powerful and lucrative industries. But a separate class of cases is seeking something much broader: They're arguing that governments have a legal obligation to protect their citizens from climate change.
A group of nearly 900 Dutch citizens and a nonprofit were among the first to make the claim, arguing that their government was failing to meet its own goals for emissions cuts and violating their rights in the process. In October, a Dutch appeals court upheld a lower court ruling ordering the government to cut emissions 25 percent below 1990 levels by 2020. The government said it will appeal the most recent decision, even as it works to meet the emissions goal.
In the U.S., a group of children and young adults who are suing the federal government were poised to go to trial in October in a similar case. The plaintiffs are trying to establish a Constitutional right to a stable climate and are seeking a court order that the government come up with a plan to phase out fossil fuels. Simply holding a trial would be a major victory for the children, but the Supreme Court put the trial on hold less than two weeks before the scheduled opening arguments. The case is now in the hands of appeals court judges with the Ninth Circuit, who will decide whether to allow a trial.
"This is the blockbuster for the U.S.," said Melissa Scanlan, director of the New Economy Law Center at Vermont Law School. "It's the first case in the U.S. that would recognize that there's a protected Constitutional right to a climate capable of supporting human life. We never thought we needed that before."
Twenty-one children and young adults are suing the federal government to force action on climate change. Their case had been scheduled for trial in October but is on hold while the Ninth Circuit Court considers a request by the Trump administration to throw the case out. Credit: Robin Loznak
Similar cases have been filed in a few state courts, too. All face long odds.
"There are very, very few judges that would be willing to push these climate issues in court," Parenteau said. "But all roads lead to the Supreme Court, and that's where it would die. There's no chance."
In Colombia, however, a nonprofit won a court order in April directing the government to develop a plan for protecting the nation's Amazon forest, which saw deforestation rates rise in recent years and, along with areas in neighboring countries, is one of the planet's largest stores of carbon.
Human rights cases are pending in Norway, Canada, Belgium and other countries. In the Philippines, the nation's Commission on Human Rights concluded an investigation into whether fossil fuel companies played a role in violating the rights of the country's citizens by knowingly contributing to climate change. The Commission will issue a report this year.

Securities Fraud
In October, New York Attorney General Barbara Underwood capped a three-year investigation into ExxonMobil by suing the company in state court, accusing it of misrepresented the financial risks that climate change poses to its business. It may be legal to lie to the public, the case effectively argues, but not to shareholders.
The lawsuit was a significant development because, unlike most of the local and state claims, it relies on a state law that gives prosecutors great powers to go after companies for financial fraud. A New York judge set a trial date for October 2019.
It wasn't the first case to charge Exxon with securities fraud,. In 2016, a shareholder filed a class action suit against the company in a Texas federal court, saying corporate officers had made false and misleading statements about how the company was assessing climate risks, artificially inflating the company's stock price. That lawsuit cleared a hurdle in August when a federal judge denied a motion by Exxon to dismiss the case.

Tried and True Tactics Remain
As cities, states and citizens press the courts to address climate change with novel legal arguments, dozens of more conventional lawsuits continue to churn too, challenging oil pipelines and coal facilities for their greenhouse gas emissions and the Trump administration as it rolls back the nation's climate regulations.
Gerrard noted that it is these traditional legal challenges that, so far, have had a greater effect on the nation's greenhouse gas emissions. Rules limiting methane emissions by the oil and gas industry, for example, remain in place for the time being despite efforts by the Trump administration to repeal them.
Legal experts say the unconventional cases, whether cities suing oil companies, children suing the government or a state suing Exxon for fraud, may face skepticism from judges, and it's far too early to say what effect they will have.
"Lots is happening, lots of boom and bang," Parenteau said. "But the carbon keeps going up and up. There you have it."

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Worst Mass Extinction Event In Earth’s History Was Caused By Global Warming Analogous To Current Climate Crisis

Mongabay - 

Bleached branching coral (Acropora sp.) at Heron Island, Great Barrier Reef. Earth’s coral reefs have been hit by successive mass bleaching events over the past few years, one of the impacts of climate change on ocean life. Photo via Wikimedia Commons, licensed under CC BY-SA 3.0.

Summary
  • The Permian period ended about 250 million years ago with the largest recorded mass extinction in Earth’s history, when a series of massive volcanic eruptions is believed to have triggered global climate change that ultimately wiped out 96 percent of marine species in an event known as the “Great Dying.”
  • According to Justin Penn, a doctoral student at the University of Washington (UW), the Permian extinction can help us understand the impacts of climate change in our own current era.
  • Penn led a team of researchers that combined models of ocean conditions and animal metabolism with paleoceanographic records to show that the Permian mass extinction was caused by rising ocean temperatures, which in turn forced the metabolism of marine animals to speed up. Increased metabolism meant increased need for oxygen, but the warmer waters could not hold enough oxygen to meet those needs, and ocean life was left gasping for breath.
New research by scientists at the United States’ University of Washington and Stanford University suggests that the most destructive mass extinction event in Earth’s ancient history was caused by global warming that left marine life unable to breathe.
The Permian period, the last period of the Paleozoic Era, ended about 250 million years ago with the largest recorded mass extinction in Earth’s history. Before the dinosaurs emerged during the Triassic period somewhere around 243 and 233 million years ago, a series of massive volcanic eruptions is believed to have triggered global climate change that ultimately led to the Permian extinction, which wiped out 96 percent of marine species in an event known as the “Great Dying.”
According to Justin Penn, a doctoral student at the University of Washington (UW), the Permian extinction can help us understand the impacts of climate change in our own current era. He’s the lead author of a study published in Science last month that builds off of previous research by Curtis Deutsch, a professor of oceanography at UW.
“In 2015, Curtis published a paper demonstrating that temperature and oxygen act as invisible barriers to habitat for animals in the modern ocean,” Penn told Mongabay. “We wanted to know whether this framework could be used to understand the link between ocean warming, oxygen loss, and marine ecosystems. The end-Permian mass extinction served as the perfect case study because there is clear evidence for ocean warming and oxygen loss during that time period, and the fossils recorded the response of marine biodiversity.”
Penn led a team of researchers that combined models of ocean conditions and animal metabolism with paleoceanographic records to show that the Permian mass extinction was caused by rising ocean temperatures, which in turn forced the metabolism of marine animals to speed up. Increased metabolism meant increased need for oxygen, but the warmer waters could not hold enough oxygen to meet those needs, and ocean life was left gasping for breath.
During the Permian period, Earth’s land masses were still joined together in the supercontinent of Pangaea, and before volcanic eruptions in Siberia increased the concentrations of greenhouse-gas’s in the atmosphere, ocean temperatures and oxygen levels were similar to those of today. The researchers constructed a model based on Earth’s configuration and climate in the Permian, then raised greenhouse gases in the model until ocean surface temperatures in the tropics had risen by 10 degrees Celsius (20 degrees Fahrenheit), the conditions driven by the global warming that was occurring at the time.
This illustration shows the percentage of marine animals that went extinct at the end of the Permian era by latitude, from the model (black line) and from the fossil record (blue dots). A greater percentage of marine animals survived in the tropics than at the poles. The color of the water shows the temperature change, with red being most severe warming and yellow less warming. At the top is the supercontinent Pangaea, with massive volcanic eruptions emitting carbon dioxide. The images below the line represent some of the 96 percent of marine species that died during the event. Includes fossil drawings by Ernst Haeckel/Wikimedia; Blue crab photo by Wendy Kaveney/Flickr; Atlantic cod photo by Hans-Petter Fjeld/Wikimedia; Chambered nautilus photo by ©2010 John White/CalPhotos. Image Credit: Justin Penn and Curtis Deutsch/University of Washington.
The global warming and oxygen loss simulated in the Earth System model Penn and team built matched reconstructions of these changes made from the fossil record of the end of the Permian period. The oceans lost about 80 percent of their oxygen, and around half of the ocean seafloor became completely oxygen-free, especially at lower depths.
The researchers then used published lab measurements on 61 modern marine species like crustaceans, fish, shellfish, corals, and sharks to examine how those animals might respond to those oxygen and temperature conditions. Today’s marine wildlife are expected to have similar tolerances to high temperatures and low oxygen as Permian animals because of the similar environmental conditions under which they evolved.
“Warming and oxygen loss would have led to a loss of aerobic habitat for marine animals by increasing their temperature-dependent oxygen demand amid declining supply,” Penn said. “The predicted geography and severity of the resulting mass extinction explain the patterns observed in the global marine fossil record from the ‘Great Dying.’”
In a statement, Curtis Deutsch explained that by combining species’ traits with the team’s paleoclimate simulations, the researchers were able to predict the geography of the extinction event. “Very few marine organisms stayed in the same habitats they were living in — it was either flee or perish,” Deutsch, a co-author of the Science paper, said.
The model predicted that, because animals found at high latitudes far from the tropics are the most sensitive to oxygen levels, their numbers would have suffered the most, with those that have particularly high oxygen demands being almost completely wiped out. Many tropical species would have gone extinct, as well, the model showed.
“Since tropical organisms’ metabolisms were already adapted to fairly warm, lower-oxygen conditions, they could move away from the tropics and find the same conditions somewhere else,” Deutsch said. “But if an organism was adapted for a cold, oxygen-rich environment, then those conditions ceased to exist in the shallow oceans.”
This roughly 1.5-foot slab of rock from southern China shows the Permian-Triassic boundary. The bottom section is pre-extinction limestone. The upper section is microbial limestone deposited after the extinction. Photo Credit: Jonathan Payne/Stanford University.
To test the predictions made by the climate model, study co-authors Jonathan Payne and Erik Sperling of Stanford University turned to the Paleobiology Database, a virtual archive of published fossil collections. By looking at how fossils are distributed in ancient seafloor rocks, it’s possible to piece together where animals existed before the extinction event, where they they fled to or went extinct, or where they were confined to a fraction of their previous habitat. The fossil distributions of the late-Permian period confirmed that species far from the equator were hit the hardest by the mass extinction event.
“The signature of that kill mechanism, climate warming and oxygen loss, is this geographic pattern that’s predicted by the model and then discovered in the fossils,” Penn said in a statement. “The agreement between the two indicates this mechanism of climate warming and oxygen loss was a primary cause of the extinction.”
Penn and co-authors say that other shifts in the ocean environment, such as acidification or changes in the productivity of photosynthetic organisms, probably contributed to the Permian extinction, but that warmer temperatures leading to insufficient oxygen levels accounts for more than half of the losses in marine life.
That could help us understand how marine life will fare in our current age of global warming, Penn added, because the conditions in the late Permian are similar to conditions today.
The drivers of the Permian mass extinction — volcanic CO2 emissions into the atmosphere leading to global warming — are analogous to human-caused CO2 emissions occurring today, Penn noted. “These results allow us to compare the scale of our modern problem to the largest extinction in Earth’s history,” he told Mongabay. “Under a business-as-usual emissions scenarios, by 2100 warming in the upper ocean will have approached 20 percent of warming in the late Permian, and by the year 2300 it will reach between 35 and 50 percent.”
The study, therefore, highlights the potential for a mass extinction driven by anthropogenic climate change due to mechanisms similar to those that caused the Permian mass extinction, Penn said: “The ocean cannot be cooled or oxygenated on a global scale by any feasible means. The only sustainable solution to reduce the risk of temperature-dependent hypoxia is to halt the anthropogenic accumulation of CO2 in the atmosphere.”

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