20/08/2021

(Grist) New UN Report Could Be A Game-Changer For Climate Lawsuits

Grist -  Joseph Winters

"The IPCC report should be a sort of rallying call to lawyers."

Cristina Vega Rhor / AFP via Getty Images
The United Nations Intergovernmental Panel on Climate Change’s sixth assessment report, released on Monday, contained some of the group’s strongest language yet affirming the link between human activity and global warming.

Humans have “unequivocally” warmed the planet, the IPCC report said, making heatwaves, droughts, and wildfires more extreme in the process. While that might seem like a no-brainer to some, it’s a finding that could have big implications for lawsuits seeking to hold polluters accountable for disaster damages.

“The IPCC report should be a sort of rallying call to lawyers,” said Rupert Stuart-Smith, a climate researcher at the University of Oxford, “to ensure that they are making use of the most up-to-date developments in climate science.”

The specific field of science that examines the connection between extreme weather events and human activity is called “climate change attribution.” According to the IPCC, scientists have gotten much better at this over the past decade, and can now more rigorously pin extreme heat, heavy precipitation, dry spells, and hurricanes on big carbon emitters.

For years, plaintiffs around the world have sought to hold fossil fuel companies accountable for their contributions to climate change — often seeking compensation for damages like economic losses from floods or wildfires. But these cases have been stymied by a lack of causal evidence. That is, plaintiffs have struggled to prove in the courtroom that they have suffered economic damages due to the activities of the oil and gas companies they are litigating.

Take, for example, the 2008 case of Native Village of Kivalina v. ExxonMobil Corp., in which Native Alaskans sued ExxonMobil and 23 other energy giants for damages associated with coastal erosion. The plaintiffs said the erosion had been exacerbated by climate change.

But the U.S. Court of Appeals dismissed the villagers’ case, citing a dearth of causal evidence. “It is not plausible to state which emissions — emitted by whom … and at what point in the world — ‘caused’ Plaintiffs’ alleged global-warming related injuries,” the court ruled.

Left: A young boy in Kivalina, Alaska, watches workers fill sandbags for a sea wall in 2007. Right: Coastal erosion has caused many houses, like this one near Kivalina, to sink into the ocean. Image credit: Don Bartletti / Los Angeles Times via Getty Images, AP Photo / Diana Haecker
According to Stuart-Smith, however, that’s no longer true. Thanks to the rapidly advancing field of attribution science, researchers now have the tools needed to attribute natural disasters to human-induced climate change, and to determine individual companies’ contributions to them.

“This kind of scientific evidence exists, the methods are robust, and they’re widely accepted in the scientific community,” Stuart-Smith said.

But that evidence isn’t yet being used in the majority of climate-related lawsuits. According to a paper Stuart-Smith co-published in Nature Climate Change this June, plaintiffs tend to claim that they have been damaged by oil and gas companies’ contributions to climate change without citing strong enough evidence: Nearly three-quarters of of the 73 cases analyzed in the study didn’t refer to any peer-reviewed attribution studies at all.

Those that did incorporate attribution science tended to do so in a general way, drawing broad links between emissions and climate change impacts, rather than making a causal link to specific damages sustained by the plaintiff.

To build a better legal case in climate lawsuits, Stuart-Smith said, plaintiffs must first establish the contribution of an individual emitter to climate change using what’s known as source attribution. In other words, “How much has an individual fossil fuel company contributed to climate change?” Stuart-Smith explained.

That calculation may be easier than it sounds, considering there is already a robust and well-used body of literature on the topic. Much of the field builds on seminal research from the Climate Accountability Institute, which in 2014 published a paper quantifying the top fossil fuel companies’ contribution to global warming.

“We’re citing the hell out of it,” said Pat Parenteau, a law professor at Vermont Law School. 

But Parenteau said legal groups could do more with newer attribution science tools focused on “impact attribution,” which can draw a direct line between human activity and the consequences of climate-related extreme weather events.

For example, earlier this summer when the Pacific Northwest was scorched by a record-breaking “heat dome,” climate scientists were quickly able to determine that the event was made 150 times more likely due to climate change.

“Basically without climate change, this event would not have happened,”said Friederike Otto, a climate scientist at the University of Oxford, in an interview with Buzzfeed.

Such analyses would be relatively straightforward for many other climate-related impacts, Stuart-Smith explained, if plaintiffs knew to commission and use them. Combined with robust evidence from source attribution, those tools could help plaintiffs overcome the evidentiary hurdle needed to prove that oil and gas companies’ activities contributed to their economic losses.

Parenteau expressed optimism that the IPCC report’s high profile would remind lawyers of the importance of quality attribution science as they build their evidentiary cases. He’s paying attention to ongoing cases in California, where strong tort laws — a branch of laws that govern remedies for civil wrongs — could help cities like San Mateo and Oakland win cases against big polluters like Chevron.

“The real show is yet to come,” Parenteau said, “but you can be sure that the plaintiffs’ lawyers are well aware not only of the IPCC report itself, but of the contributing scientists and what their studies are showing.”

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(AU ABC) Can The Antarctic Treaty Protect One Of The World's Last Great Wildernesses From Climate Change?

ABC Radio National | Sarah Scopelianos

Despite being extremely remote, Antarctica is facing many challenges exacerbated by human activity. (Supplied: Rodolfo Werner)

It's one of the world's last great wildernesses. Antarctica, the world's southernmost continent, is known for its penguins, polar expeditions and icy beauty.

But it's not quite as pristine as the brochures would like everyone to believe. Environmentalists say the region is facing multiple pressures from climate change, increased tourism and countries jostling for strategic positions.

And all that protects this majestic area is a single treaty, negotiated more than six decades ago.

So is the Antarctic Treaty robust enough to protect the 'Great White Continent'? Does it need to be updated? Or is it working as it should be?

Why have a treaty?

At its heart, the Antarctic Treaty is about keeping the peace.

Most land claims over Antarctica were made before World War II.



Countries have always been interested in staking a claim on parts of Antarctica. (Supplied: Antarctic Climate and Ecosystems CRC)
After the war, there was a renewed focus on polar research and something was needed to reduce the potential for conflict over Antarctica, says international law expert Donald Rothwell.

By the 1950s, seven nations — Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom — had claimed territorial sovereignty over areas of Antarctica.

And many others, including the United States and the Soviet Union, had been exploring the area.

"The treaty's genius was that it actually stopped those sovereignty and territorial disputes in the 50s, and during a critical period in the Cold War," Professor Rotherwell, from Australian National University, tells ABC RN's Counterpoint.

The treaty was signed in 1959 by 12 nations including Australia, United States and USSR and came into force on June 23, 1961.

Australia never relinquished its Antarctic Territory, which includes three research bases. (Supplied: Australian Antarctic Division)

While the treaty effectively neutralised territorial claims, Australia never relinquished the Australian Antarctic Territory, although this isn't recognised by many other nations.

The 5.9 million square kilometre area, equivalent to 80 per cent of the size of Australia, is about 42 per cent of the continent. And Australia has three research bases: Casey, Davis and Mawson.

Interestingly, the only piece of unclaimed land on Earth is in West Antarctica. The 1.6 million square kilometre section of icy terrain and glaciers, known as Marie Byrd Land, remains unclaimed due to its remoteness and lack of resources.

What's in the treaty?

The treaty bans military activities, nuclear testing and the disposal of radioactive waste in the region. It outlines a vision for peace and freedom of scientific research with nations cooperating and exchanging research plans and personnel.

There are also provisions for nations to inspect each other's ships, stations and equipment. Over the past 60 years, Australia has conducted 10 inspections in Antarctica — the most recent included visiting two facilities run by China and stops at bases run by Germany, Russia, Korea and Belarus last year.

Checks are usually to verify compliance with the environmental and non-militarisation principles of the treaty and to ensure scientific research is taking place.

Before the pandemic, there was an influx of tourists keen to spot Antarctica's wildlife. (Supplied: Rodolfo Werner)

Membership to the treaty has grown over time, with any member of the United Nations eligible to sign on. It now has 53 signatories but only 29 countries — either original signatories or those who are conducting substantial research on the continent — have voting rights to decide the continent's future, protection and enforcement of rules.

Decisions require consensus between the 29 nations.

Professor Rothwell says, by all standards the treaty is "very old".

"It has never been amended or modified [but] it's certainly been expanded."

He says that, in addition to the original treaty, there is a patchwork of agreements and protocols on issues like mining, management of protected areas, the environment, tourism, fishing and preservation of historical sites, which make up the Antarctic Treaty System.

"There's always been a bit of a question mark over it, in terms of whether it will remain good as a treaty regime into the future, given emerging geopolitical tensions," he says.

What are its successes?

Antarctic and Southern Ocean Coalition executive director Claire Christian says the treaty's mission to "permanently demilitarise an entire continent was a huge accomplishment".

"It was also quite important that the original signatories prioritised scientific research rather than economic exploitation," she says.

Christian says the addition of the Madrid Protocol in 1991 "refocussed" the treaty on environmental protection by banning mineral extraction. It also requires Antarctic Treaty parties to undertake environmental protection measures including environmental impact assessments and protected areas.

In some ways, Christian says, the protocol and the treaty are still "revolutionary" by prioritising environmental protection and international cooperation rather than national interests.

The Madrid Protocol refocussed the treaty on environmental protection, particularly for the region's unique biodiversity. (Supplied: Rodolfo Werner)
How is Antarctica faring?

Antarctic campaigner Alistair Allan, who has visited the region five times with the Sea Shepherd Conservation Society, says this part of the world faces serious challenges.

Climate change is the "absolute biggest threat" to the region. Allan, from the Bob Brown Foundation, points out that the 29 countries with voting rights over Antarctica are among the world's greatest emitters of greenhouse gases.

Alistair Allan wants more nations to have a say in the future of Antarctica. (Supplied: Alistair Allan)

He believes these countries could make a real difference to the future of Antarctica — and the world.

He's calling for a "stronger shared care for the Antarctic environment" and for countries to make "real changes back at home".

Tourism is also a growing concern in the region. Before the coronavirus pandemic, there was a surge in cashed-up visitors all keen to explore the continent.

"When they wrote the treaty, that wasn't even a thing. There was no anticipation for the biggest industry in Antarctica to be tourism," Allan says.

Increased visitors put further pressure on the ecosystem with more ship and aircraft movement, more people on the ground exploring sensitive areas like penguin rookeries and the potential for invasive species to be introduced.

"Every little activity by itself doesn't necessarily harm the environment," Allan says, but adds that it all has a cumulative impact.

Climate change and increased human activity are just some of the challenges Antarctica faces.(Supplied: Rodolfo Werner)

Is the treaty working?

It depends on who you ask.

Professor Rothwell says at face value the treaty is achieving its aim.

Humans have accessed more than two-thirds of the Antarctica and the proportion of places not impacted by people is shrinking, say researchers who are calling for greater protection of wilderness areas. Read more
"It's not only holding the peace but it's keeping scientific research going, which has always been critical on the continent," he says.

"The scientific research has evolved to have an increasing focus on climate change, so you can't say that the research is not relevant and contemporary and focussed."

Allan isn't so sure. He describes an atmosphere akin to a "moon race" between countries "jostling for territory" by proposing large infrastructure projects.

For instance, Australia has plans to build a 2.7 kilometre concrete airstrip to receive planes all year round.

Allan says the project near Davis Station is an example of a country trying to shore up its territorial claim.

"Due to climate change, the ice runway in summer is actually melting and they can't land the planes ... but the real reason is about huge strategic imperatives," he says.

What needs to be fixed?

Both Allan and Christian agree the treaty's core is solid but there are weaknesses.

"There are plenty of scientists and government officials who understand what needs to be done [to protect the region] and have good ideas for implementing it but they are too often blocked by one or two countries," Christian says.

Enforcement of the rules is another issue.

For instance, when South Korean and Russian fishing vessels were caught fishing illegally in the area, they avoided the consequences after their respective countries couldn't agree on how to enforce the regulations.

Allan says there needs to be stricter regulations and more countries involved in making decisions.

"The foundation is strong in terms of no-military, cooperation, natural reserve, peace and science ... What it needs now is stricter control regulation and potentially also bringing more people into that conversation.

"At the moment, it is still the 29 voting countries that primarily get to choose what happens and there's not much say from the rest of the world.

"What happens in Antarctica affects all of us."

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(AU Pearls and Irritations) Climate Change: Will The Financial System Survive?

 Pearls and Irritations - Ian Dunlop | David Spratt

One of the few bright spots in an otherwise dismal global response to the escalating climate crisis has been the preparedness of financial market regulators to force their regulated institutions to face up to the implications of climate risk.


Authors
  • Ian Dunlop was formerly an international oil, gas and coal industry executive, chair of the Australian Coal Association and CEO of the Australian Institute of Company Directors. He is a member of the Club of Rome and Chair, Advisory Board, Breakthrough National Centre for Climate Restoration.
  • David Spratt has been Research Coordinator for the Breakthrough National Centre for Climate Restoration (Melbourne) since 2014. He was co-founder of the Climate Action Centre (2009-2012). He blogs at climatecodered.org on climate science, existential risk, IPCC reticence, the climate emergency and climate movement strategy and communications, and is regular public speaker.
In so doing, they have been acutely aware of the lessons learnt from the 2008 Global Financial Crisis, where scenario analysis, expert financial modelling and stress testing failed to foresee the crisis and the consequences for the banking system, investors and business alike.

As a result, the global financial system was only saved from collapse by a massive trillion-dollar bailout, for which the banks and corporations who caused it have yet to be held accountable.

When questioned by the Queen in 2008 as to why the crisis had occurred, the British Academy, after much introspection, responded that a “psychology of denial”  led to “the failure of the collective imagination of many bright people … to understand the risks to the (financial) system as a whole.”

The reaction to the ominous warnings in the first part of the  Intergovernmental Panel on Climate Change’s (IPCC) 6th Assessment Report, recently released, demonstrates that the same psychology of denial is alive and well, particularly in Australia.

The financial press has erupted with ever-more incredulous claims as to why gas, oil, and even coal are absolutely essential to solving the climate crisis.

Politicians are suddenly experts in silver bullet technologies that will solve our problem without understanding the limitations of their claims, and trawl the web even more vigorously than normal for any sliver of denialist evidence that the climate issue might just go away.

Fortunately, regulators with independent mandates to ensure the stability of the global financial system are taking their responsibilities seriously. To make climate risks more transparent, central banks and regulators globally are stress-testing the financial system.

Most notable have been initiatives by the Task Force on Climate-related Financial Disclosures (TCFD), the European Central Bank (ECB) and the scenario work of the Network for the Greening of the Financial System (NGFS).

In Australia, regulators have coordinated their work through the Council for Financial Regulators, with the Australian Prudential Regulatory Authority (APRA) initiating a climate vulnerability assessment for banks, encompassing scenarios up to 3°C of global mean warming, and issuing draft guidance for companies to stress test their own finances against scenarios up to 4°C warming.

Stress tests are simulations, relying on scenarios of future circumstances, and on models of the climate, the economy and the financial system. These techniques are valuable in reasonably well-understood circumstances, but they have severe limitations in addressing the threats that climate change now presents.

The latest IPCC report has begun to discuss these issues, which include non-linear processes such as climate tipping points, cascade effects and radical uncertainty, where probabilities cannot be attached to specific outcomes, but even now the IPCC remain relatively reticent on these potentially existential, but increasingly possible, threats.

It is particularly challenging to map first-order physical climate warming impacts onto the second-order impacts in the social and financial spheres because it depends on the responses of complex human systems which cannot be reduced to probabilistic terms.

In a complex world, systemic risks can arise from interactions between changes in the physical climate and human systems, so that small changes can lead to large divergences in the future state of human society.

Scenario analysis creates coherent, credible stories about alternative futures, allowing for constructive discussion on alternatives that should take into account the full range of credible evidence. But too often it is devalued and represents little more than sensitivities around some conventional strategic plans.

Scenarios, properly used, can assist in securing a safe and stable future, but only if applied with brutal honesty in exploring extremes and not just a predetermined path.

Unfortunately, global leaders, and Australia’s in particular, have not acted fast enough to avoid locking in extremely dangerous, and potentially catastrophic, climate impacts.

Those impacts are close to moving beyond human control as global warming accelerates, evidence of which was clearly seen with the unprecedented 2019-20 Australian and Californian bushfires, the Chinese floods and Indian extreme temperatures. 

Even greater extremes are occurring in recent weeks in the Western USA, Canada, the Arctic, Siberia, Europe, China and the Amazon, resulting in some impacts that were not projected until around 2100.

In that context, the approach currently being used by regulators in assessing the future assumes compliance with the Paris Climate Agreement, unsustainable economic growth, reliance on technologies not yet proven or deployed at scale, an overshoot of the Paris temperature target, and a big continuing role for gas.

This worldview is being rapidly overtaken by events.

Scientists and analysts consider 4°C of warming to be an existential threat, incompatible with the maintenance of human civilisation, and 3°C to be catastrophic, perhaps leading to outright chaos in the relations between nations. 

Applying stress tests to such circumstances is problematic. Even at 3°C, the impacts may be so great as to be potentially infinite and unquantifiable, making scenario testing largely irrelevant.

It is unlikely that the banking system could survive such levels of warming, as discussed in our latest report: “Degrees of Risk: can the banking system survive climate warming of 3oC?”

Markets crave stability, but the world is entering an era of instability and uncertainty driven, inter alia, by climate-related financial risks. This makes the current approaches to managing these risks not fit-for-purpose.

Sensible risk management, especially for highly uncertain events such as we are now facing, demands a precautionary approach, which must be applied to prevent these risks from materialising.

Such precautionary action must ensure temperature outcomes do not trigger further tipping points or cascading effects which move the climate system beyond human influence and are capable of returning it to the stable climate conditions under which human civilisation flourished.

This means emergency action to keep the temperature increase to a minimum, as close to 1.5°C as possible, coupled with the drawdown of current atmospheric carbon concentrations.

If the financial system is to survive and prosper, reactive disclosure of risks alone is no longer enough; time is short and mitigating those risks must become the absolute focus of regulators and regulated alike.

Company directors have a fiduciary responsibility to identify the risks to which their organisations are exposed, and to implement suitable systems to manage those risks. 

In the context of climate risk, boards of directors have too readily adopted recommendations from regulators and from supranational organisations such as the International Energy Agency or the IPCC, without bothering to understand the limitations of such analysis, thereby failing in their fiduciary responsibility to fully assess risk.

Regulators, here and overseas, exert great influence over financial and corporate players. If climate risk regulators imply warming of 3-4oC is manageable or can be adapted to, and such thinking becomes enshrined in the corporate psyche, as is currently happening, then regulators will be institutionalising failure, which is certainly not their intent.

Instead, regulators must now demand that the regulated proactively disclose what emergency precautionary action they are taking to ensure the world remains as close to a 1.5oC global mean temperature increase as possible.

This is just one change amongst many that must occur if humanity is to survive and prosper through the 21st Century and beyond.

And it is an important one because we cannot afford another failure of imagination.

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