28/07/2021

(AU ABC) Human Rights Issue Or 'Green Lawfare'? Citizens Take To The Courts To Fight Climate Change

ABC Radio National - Antony Funnell, Future Tense

More than 17,000 co-plaintiffs successfully brought a case against oil producer Shell in the Netherlands. (Getty: Peter Boer/Bloomberg)
They don't fit the activist stereotype — some are farmers, some are from the suburbs, some are retired, and some are still going to school.

Melbourne University's Jacqueline Peel calls them "next generation" litigants, ordinary citizens tired of political promises and eager to hold governments and companies to account.

Many see climate change as a human rights issue and they're being assisted in their legal ambitions by a coterie of academics, lawyers and even judges.

But there are also critics, who warn of "green lawfare" judicial activism and a threat to the democratic ideal of the separation of powers: that governments, not the courts, should determine national policy.

Climate change impacts everyone Environmental law expert, Jacqueline McGlade, says the judicial landscape around climate change is changing rapidly.

"In the last two or three years we've doubled the number of cases that have been brought forward."

And those cases are being heard in court rooms across the globe from the United States to Pakistan to Australia, focused not just on current environmental threats, but on the risks to future generations, she says.

"Everybody knows that climate is going to impact everyone .... [it will] impact our fundamental human rights to life, to water, to food and so on, and that's how it is connected."

As an example, Professor McGlade nominates a case brought before Brazil's highest court in September 2020.

Amazon deforestation rises
to 12-year record

"The government was failing to properly administer the Amazon Fund, the mechanism that was set up to combat deforestation.

"The Supreme Court accepted that lawsuit last year and directed the government to actually provide information on why it wasn't managing the fund properly."

Then in March, the Federal Court of Australia ordered that Environment Minister, Sussan Ley, had a duty of care to protect young people from "emissions of carbon dioxide into Earth's environment".

The case was brought against the minister by eight students and a nun and involved plans to expand a Northern NSW coal mine.

The group who bought a case against the Environment Minister say they were motivated by their passion for climate justice. (ABC News: Brendan Esposito)
A multinational in the dock The most internationally significant judicial decision of recent times occurred in a District Court in the Netherlands in May. It involved the giant multinational gas and oil producer Shell on the one side, and more than 17,000 co-plaintiffs on the other.

"It was about Shell's accountability for the emissions it releases into the atmosphere and making sure that it was making appropriate reductions in those emissions over time," says Professor Peel, who believes the decision could set a global precedent.

"We've seen these kinds of actions against governments to hold them accountable for their emissions reduction targets [but] this was the first case in the world where you are seeing this kind of action being brought against a company."

The case has pricked the attention of industry across the world, she says.

"It's often said in relation to litigation that you probably only need one successful case to change the atmosphere in a boardroom.

"It puts companies on notice that they could be sued on similar grounds and could be held liable for the damages associated with the climate harms caused by their emissions."

A 'redistribution of power' Australian lawyer David Morris, from the non-profit legal service the Environmental Defenders Office, is also seeing the rapid growth in climate change-related lawsuits, but he says many litigants struggle to understand and navigate judicial processes.

He works directly with individuals and communities to help them frame and prosecute their cases. He describes it as a "redistribution of power".

 "It really goes to the integrity of our system, the idea that a small community group can stand up against the might of a major mining company or a government department and then win in court.

"It really ensures the integrity of our processes too. It ensures that when ministers are making important decisions which might have consequences over many decades, indeed well into the future, that they follow proper process."

Mr Morris says connection with country is increasingly being used as a litigation tool.

"Local community groups are often motivated by a deep love of place and a desire not to see that place destroyed.

"We see it increasingly in the work we do with traditional owners, with Aboriginal and Torres Strait Islander people in Australia, the deep connections that those people have to country and the impacts that they see from particular projects but also that they see from the growing impacts of climate change."

Push back Yet official antipathy toward climate-related litigation is also on the rise.

Ms Ley has appealed the recent Federal Court ruling made against her, arguing that she doesn't have a duty of care to protect Australian children from climate harm.

Suing for change on climate
She and others in the Morrison government have repeatedly accused environmental organisations of waging "lawfare" against fossil fuel companies.

"We've often seen quite adverse reactions from politicians to a lot of the climate litigation," says Professor Peel, "partly because it does reflect badly on the progress that politicians are making or not making in dealing with the challenge."

She says some in the judiciary are also cautious about hearing climate-related cases.

"There is a long-running debate in the legal sphere about what the role of judges should be, whether they should have a strong role in developing the law and taking it forward to address new circumstances and challenges. Or whether those functions should be best left with policymakers and parliaments."

But she says the framing of many "next generation" cases can be persuasive.

"You're seeing judges more willing often to go into that space because they think of it as an issue of justice where the law has a particular role to play.

David Estrin from the International Bar Association rejects any notion of "judicial activism".

While governments have a primary role in determining a nation's environmental laws, he argues, courts play an essential role in holding them to account when their actions fail to remain within the limits of the law.

"This mandate to the courts to offer legal protection, even against the government, is an essential component of a democratic state under the rule of law," he says, quoting a 2019 ruling by the Netherlands Supreme Court.

Professor Peel argues a further increase in litigation is inevitable as long as there remains a perception that governments and companies aren't moving fast enough on climate change or aren't adhering to their own commitments.

And David Morris predicts the next decade will see a significant shift in thinking.

"You will start to see an evolution of the jurisprudence in these spaces, so an evolution of the judges' thinking," he says, "or of the court's findings in respect of some of these cases, which to date have been novel." 

"And what you'll see is a growing body of knowledge, a growing body of reasoning that starts to place very real pressure on companies and governments who fail to act swiftly."

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(Reuters) Extreme Weather Renews Focus On Climate Change As Scientists Update Forecasts

Reuters - 
A man holding a baby wades through a flooded road following heavy rainfall in Zhengzhou, Henan province, China July 22, 2021. REUTERS/Aly Song/File Photo
As scientists gather online to finalize a long-awaited update on global climate research, recent extreme weather events across the globe highlight the need for more research on how it will play out, especially locally.

The list of extremes in just the last few weeks has been startling: Unprecedented rains followed by deadly flooding in central China and Europe. Temperatures of 120 Fahrenheit (49 Celsius) in Canada, and tropical heat in Finland and Ireland. The Siberian tundra ablaze. Monstrous U.S. wildfires, along with record drought across the U.S. West and parts of Brazil.

"Global warming was well projected, but now you see it with your own eyes," said Corinne Le Quere, a climate scientist at the University of East Anglia.

Scientists had long predicted such extremes were likely. But many are surprised by so many happening so fast – with the global atmosphere 1.2 degrees Celsius warmer than the preindustrial average. The Paris Agreement on climate change calls for keeping warming to within 1.5 degrees.

Residents are silhouetted as they watch the Blue Ridge Fire burning in Yorba Linda, California, U.S. October 26, 2020. REUTERS/Ringo Chiu/File Photo

"It's not so much that climate change itself is proceeding faster than expected -- the warming is right in line with model predictions from decades ago," said climate scientist Michael Mann of Pennsylvania State University. "Rather, it's the fact that some of the impacts are greater than scientists predicted."

That suggests that climate modeling may have been underestimating the "the potential for the dramatic rise in persistent weather extremes," Mann said.

Over the next two weeks, top scientists with the Intergovernmental Panel on Climate Change (IPCC) will finalize the first installment of its sixth Assessment Report, which will update the established science around greenhouse gas emissions and projections for future warming and its impacts. Government representatives are also taking part in the virtual two-week meeting.

The report will expand on the last such IPCC report in 2013 by focusing more on extreme weather and regional impacts.

A lone boat sits perched on a mound near Hensley Lake as soaring temperatures and drought continue to affect livestock and water supplies in Madera, California, U.S. July 14, 2021. Picture taken with a drone. REUTERS/David Swanson/File Photo

"As I speak, it is clear that extreme weather is the new normal. From Germany to China to Canada or the United States: wildfires, floods, extreme heat waves. It is an ever growing tragic list," said Joyce Msuya, Deputy Executive Director of the U.N. Environment Programme, during the event's opening ceremony on Monday.

"2021 must mark the beginning of the era of action, and it must be the year where science reigns supreme," she said.

When released on Aug. 9, the report will likely serve as a guide for governments in crafting policies around the environment, greenhouse gas emissions, infrastructure and public services. The report's release was postponed several months due to the coronavirus pandemic.

Lingering unknowns

While climate modeling has evolved over decades to where scientists have high confidence in their projections, there are still uncertainties in how climate change will manifest -- particularly at a local scale. Answering these questions could take many more years.

The June heat wave that killed hundreds in Canada would have been "virtually impossible" without human-caused climate change, scientists from the World Weather Attribution network determined.

But those temperatures -- as much as 4.6 degrees Celsius higher than the previous record in some places -- might also have resulted from new atmospheric changes that are not yet captured by climate models.

"In the climate models, this does look like a freak event," said the study's co-author Friederike Otto, a climate scientist at the University of Oxford. "The climate models do simulate such rare events and don't suggest there is something else going on, but of course that could mean the models are just not correct. This is really something we and the scientific community need to look into."

A child looks on as water floods through a fence in Wessem, Netherlands, July 16, 2021. REUTERS/Eva Plevier/File Photo
One area of mystery is how the Earth's four main jet streams respond to shifting temperatures.

The jet streams are fast-flowing air currents that circle the globe -- near the poles and the tropics -- driving many weather patterns. They are fueled by temperature variations.

Some studies have suggested climate change may be slowing down parts of the northern polar jet stream, especially during the summer.

That can cause heat waves by trapping heat under high-pressure air, as seen in Canada in June, or it can stall storms for longer in one place, potentially causing flooding.

A key research challenge is the fact that extreme events are, by definition, rare events so there is less data.

There is "tantalizing evidence" that the warming has introduced new, unexpected factors that have amplified climate change impacts even further than previously understood, but more research is needed, said Ken Caldeira, an atmospheric scientist at the Carnegie Institution for Science's Department of Global Ecology.

"From my perspective, the jury is still out on that," he said. "Whichever the answer is, the policy prescription is the same. We need to get ourselves off of CO2 emissions as soon as is practical."

More immediately, though, countries need to realize that extreme events are here to stay, even if the world can rapidly reduce emissions, scientists say.

"There's almost no strategy for adapting to a changing climate," Le Quere said. "Governments are not prepared."

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(USA NYT) Climate Crisis Turns World’s Subways Into Flood Zones

New York Times - Hiroko Tabuchi | John Schwartz

Swift, deadly flooding in China this week inundated a network that wasn’t even a decade old, highlighting the risks faced by cities globally.

 The heaviest rainfall on record in parts of central China triggered heavy flooding. Rescue workers assisted people trapped in buses, houses, and buildings. Credit...Agence France-Presse — Getty Images  1m19s

Terrified passengers trapped in flooded subway cars in Zhengzhou, China. Water cascading down stairways into the London Underground. A woman wading through murky, waist-deep water to reach a New York City subway platform.

Subway systems around the world are struggling to adapt to an era of extreme weather brought on by climate change. Their designs, many based on the expectations of another era, are being overwhelmed, and investment in upgrades could be squeezed by a drop in ridership brought on by the pandemic.

“It’s scary,” said Sarah Kaufman, associate director of the Rudin Center for Transportation at New York University. “The challenge is, how can we get ready for the next storm, which was supposed to be 100 years away,” she said, “but could happen tomorrow?”

Public transportation plays a critical role in reducing travel by car in big cities, thus reining in the emissions from automobiles that contribute to global warming. If commuters become spooked by images of inundated stations and start shunning subways for private cars, transportation experts say it could have major implications for urban air pollution and greenhouse gas emissions.

Some networks, such as London’s or New York’s, were designed and built starting more than a century ago. While a few, like Tokyo’s, have managed to shore up their flooding defenses, the crisis in China this week shows that even some of the world’s newest systems (Zhengzhou’s system isn’t even a decade old) can also be overwhelmed.

Retrofitting subways against flooding is “an enormous undertaking,” said Robert Puentes, chief executive of the Eno Center for Transportation, a nonprofit think tank with a focus on improving transportation policy. “But when you compare it to the cost of doing nothing, it starts to make much more sense,” he said. “The cost of doing nothing is much more expensive.”

Adie Tomer, a Senior Fellow at the Metropolitan Policy Program of the Brookings Institution, said subways and rail systems help to fight sprawl and reduce the amount of energy people use. “Subways and fixed rail are part of our climate solution,” he said.

Credit...Merakizz, via Agence France-Presse — Getty Images

The recent flooding is yet another example of the kind of extreme weather that is consistent with changing climate around the world.

Just days before the China subway nightmare, floods in Germany killed some 160 people. Major heat waves have brought misery to Scandinavia, Siberia and the Pacific Northwest in the United States. Wildfires in the American West and Canada sent smoke across the continent this past week and triggered health alerts in cities like Toronto, Philadelphia and New York City, giving the sun an eerie reddish tinge.

Flash floods have inundated roads and highways in recent weeks, as well. The collapse of a portion of California’s Highway 1 into the Pacific Ocean after heavy rains this year was a reminder of the fragility of the nation’s roads.

But more intense flooding poses a particular challenge to aging subway systems in some of the world’s largest cities.

In New York, the Metropolitan Transportation Authority has invested $2.6 billion in resiliency projects since Hurricane Sandy swamped the city’s subway system in 2012, including fortifying 3,500 subway vents, staircases and elevator shafts against flooding. Even on a dry day, a network of pumps pours out about 14 million gallons, mainly groundwater, from the system. Still, flash flooding this month showed that the system remains vulnerable.

“It’s a challenge trying to work within the constraints of a city with aging infrastructure, along with an economy recovering from a pandemic,” said Vincent Lee, associate principal and technical director of water for Arup, an engineering firm that helped upgrade eight subway stations and other facilities in New York after the 2012 storm.

Credit...Hiroko Masuike/The New York Times

London’s sprawling Underground faces similar challenges.

“A lot of London’s drainage system is from the Victorian Era,” said Bob Ward, policy director at the Grantham Research Institute on Climate Change and the Environment in London. And that has a direct impact on the city’s Underground system. “It’s simply not capable of dealing at the moment with the increase in heavy rainfall that we’re experiencing as a result of climate change.”

Meanwhile, the crisis in China this week shows that even some of the world’s newest systems can also be overwhelmed. As Robert E. Paaswell, a professor of civil engineering at City College of New York, put it: “Subways are going to flood. They’re going to flood because they are below ground.”

To help understand how underground flooding works, Taisuke Ishigaki, a researcher at the Department of Civil Engineering at Kansai University in Osaka, Japan, built a diorama of a city with a bustling subway system, then unleashed a deluge equivalent to about 11 inches of rain in a single day.

Within minutes, floodwaters breached several subway entrances and started to gush down the stairs. Just 15 minutes later, the diorama’s platform was under 8 feet of water — a sequence of events Dr. Ishigaki was horrified to see unfold in real life in Zhengzhou this week. There, floodwaters quickly overwhelmed passengers still standing in subway cars. At least 25 people died in and around the city, including 12 in the subway. .

Dr. Ishigaki’s research now informs a flood monitoring system in use by Osaka’s sprawling underground network, where special cameras monitor aboveground flooding during heavy rainfall.

Water above a certain danger level activates emergency protocols, where the most vulnerable entrances are sealed off (some can be closed in less than a minute) while passengers are promptly evacuated from the underground via other exits.

Japan has made other investments in its flooding infrastructure, like cavernous underground cisterns and flood gates at subway entrances. Last year, the private rail operator Tokyu, with Japanese government support, completed a huge cistern to capture and divert up to 4,000 tons of floodwater runoff at Shibuya station in Tokyo, a major hub.

Still, if there is a major breach of the many rivers that run through Japanese cities, “even these defenses won’t be enough,” Dr. Ishigaki said.

Image Credit...Charly Triballeau/Agence France-Presse — Getty Images



Credit... Robert Evans/Alamy
Mass transit advocates in the United States are calling for pandemic relief funds to be put toward public transportation. “The scale of the problems has become bigger than what our cities and states can address,” said Betsy Plum, executive director of the Riders Alliance, an advocacy group for subway and bus riders.

Some experts suggest another approach. With more extreme flooding down the line, protecting subways all of the time will be impossible, they say.

Instead, investment is needed in buses and bike lanes that can serve as alternative modes of public transportation when subways are flooded. Natural defenses could also provide relief. Rotterdam in the Netherlands has grown plants along its tramways, enabling rainwater to be soaked up by the soil, and reducing heat.

“During the pandemic you saw the way people got around on their bicycles, the most resilient, least disruptive, low cost, low carbon mode of transit,” said Anjali Mahendra, director of research at the World Resources Institute’s Ross Center for Sustainable Cities, a Washington-based think tank. “We really need to do much more with connecting parts of cities and neighborhoods with these bicycle corridors that can be used to get around.”

Some experts question why public transportation needs to be underground in the first place and say that public transit should reclaim the street. Street-level light rail, bus systems and bicycle lanes aren’t just less exposed to flooding, they are also cheaper to build and easier to access, said Bernardo Baranda Sepúlveda, a Mexico City-based researcher at the Institute for Transportation and Development Policy, a nonprofit organization.

“We have this inertia from the last century to give so much of the available space above ground to cars,” he said. “But one bus lane carries more people than three lanes of cars.”

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