The Economist
Global warming is increasingly being fought in the courtroom
IN FEBRUARY a tribunal in Kirkenes, in Norway’s far north,
ruled that oil extraction in the Barents Sea was illegal. The
courtroom—an auditorium sculpted from 190 tonnes of ice, pictured
above—and the verdict were fictitious, staged as part of a festival. But
the legal question is real.
On November 14th a district
court in Oslo, Norway’s capital, will begin hearing the case that
inspired the theatrics. Greenpeace and another pressure group, Nature
and Youth, allege that by issuing licences to explore for oil in the
Arctic, Norway’s government has breached its constitutional obligation
to preserve an environment that is “conducive to health” and to maintain
environmental “productivity and diversity”. Their case rests not on
local harms, for example to wildlife or water quality, but on the
contribution any oil extracted will make to global warming which, under
the Paris accord of 2015, Norway and 195 other countries have pledged to
keep to “well below” 2°C compared with pre-industrial times.
As policymakers prepare for the annual UN climate pow-wow in Germany,
starting on November 6th, activists who think too little is being done
to meet that goal are turning to the courts. Cases where the negative
effects of carbon emissions are central, not tagged on to more direct
environmental damage, such as oil spills or the release of noxious
chemicals, are on the rise.
Joana Setzer of the Grantham Institute, a
think-tank in London, has found 64 such cases in countries other than
America in the past 15 years. Twenty-one were lodged since 2015 (see
first chart). In litigious America around 20 are now filed each year, up
from a couple in 2002.
The targets are governments, which campaigners argue are
doing too little to avert climate change, and big energy firms, which
they hold responsible for most greenhouse-gas emissions. A day before
the Oslo hearings, for instance, a German tribunal will consider an
appeal by Saúl Luciano Lliuya, a Peruvian who sued RWE, a big German
electricity producer. He argues that it is partly liable for melting
Andean glaciers that have raised the level of water in a lake that
threatens to flood Huaraz, his home town.
Making it stick
The legal obstacles are formidable. Like the lower court in
Lliuya v RWE,
many courts have peremptorily dismissed climate lawsuits as groundless.
Climatologists deal in probabilities, so it is hard to establish a
causal link between a country’s or company’s emissions and the damage
wrought by greenhouse gases. Singling out one among countless emitters
is a stretch.
Even so, the occasional case succeeds. Two
years ago a court in the Netherlands agreed with Urgenda, an
environmental group, that the Dutch government’s target of a 17% cut in
carbon emissions by 2020, compared with the level in 1990, fell short of
its constitutional “duty of care” towards Dutch society. It ordered a
cut of at least 25%. The same year a high court in Pakistan upheld an
earlier decision in a case brought by Ashgar Leghari, a farmer, that
“the delay and lethargy of the State in implementing [its climate
policies] offend the fundamental rights of the citizens”. It directed
the government to make a list of priorities and create an independent
commission to monitor progress.
The prospect for
climate-friendly verdicts is improving, says Sophie Marjanac of
ClientEarth, an advocacy group, for two reasons. The first is the
growing volume of climate-related commitments for which governments can
be held to account. The second is advances in climate science.
Globally,
the number of national climate-change laws and policies has swelled
from around 60 in 1997 to nearly 1,400 (see second chart). A survey in 2012
found that 177 countries had laws, regulations or court rulings
guaranteeing the right to a clean or healthy environment.
In at least 92
that right was constitutional.
Greenpeace v Norway
was made possible by a change to the country’s basic charter in 2014,
which in effect converted preserving a healthy, productive and diverse
environment from a suggestion into an obligation. It would have been
harder for Mr Leghari to win had the Pakistani government not spelled
out 734 “action points”, 232 of which deserved priority.
The Paris accord is playing a role. Like many environmental
treaties, it does not bind signatories to fulfil their obligations,
merely enjoins them to do so. But plaintiffs can assess governments’ and
firms’ actions against the 2°C goal.
Such assessments
are aided by a growing understanding of Earth’s climate and humanity’s
effects on it. Scientists are increasingly confident that they know
roughly what shares of the greenhouse gases in the atmosphere were
emitted by individual countries, and even by the biggest corporate
polluters. The Carbon Majors Database, compiled by Richard Heede, a
geographer, tallies historical emissions by fossil-fuel firms and other
heavy carbon emitters such as cement-makers. He finds that just 90
belched out 63% of all greenhouse gases between 1751 and 2010.
Campaigners seek to argue that these deep-pocketed firms, and not their
customers, are ultimately responsible for the emissions, just as
cigarette-makers were held liable for their products whereas retailers
who sold them on to consumers were not.
Splitting the bill
Mr
Heede’s calculations, which most scientists accept, mean that
responsibility for past and future warming can be apportioned—at least
in principle. Mr Lliuya’s claim of €17,000 ($19,800) against RWE
corresponds to 0.5% of the cost of protecting his town against the
glacial melt. That 0.5% is the utility’s estimated share of cumulative
global greenhouse-gas emissions, chiefly from all the coal it has mined.
Likewise San Francisco, Oakland and three other Californian counties
have sued dozens of carbon majors, including BP, Chevron, ExxonMobil and
Royal Dutch Shell, for damages proportional to their share.
Scientists
are also becoming more willing to blame carbon emissions, not just for
global warming, but for specific natural disasters such as heatwaves,
floods and superstorms. But so far no plaintiff has been awarded damages
on the basis of such attribution arguments. After a legal battle that
lasted from 2005 to 2012, an American federal court threw out a case
brought by residents of Mississippi against 34 big carbon emitters for
damages suffered as a result of Hurricane Katrina, which they argued had
been made more devastating by climate change. The court decided that
the plaintiffs lacked “standing”, in other words that they could not
prove that they had suffered an injury, that the injury could be traced
back to the defendant, and that the court could redress it (for instance
by ordering damages to be paid).
But “attribution
research” has made strides in the 14 years since Myles Allen of Oxford
University introduced the notion of “climate liability” for calamities.
The first
Bulletin of the American Meteorological Society devoted
to attribution studies, in 2012, contained just six papers. Last year’s
edition contained 26, and many more were turned down for lack of space.
Researchers
are even beginning to combine individual emitters’ climate impacts with
event attribution. In a paper just published in
Nature Climate Change,
for instance, Friederike Otto of Oxford University and colleagues
(including Professor Allen) conclude that carbon emissions from America
and the European Union each raised the frequency of a particularly
devastating heatwave in Argentina by roughly a third. This increased
chance, the scientists argued, could be interpreted as their share of
responsibility for a scorcher four years ago. Many courts already accept
probabilistic arguments, for example in cases of occupational hazards.
In Britain and America judges have ruled that firms “caused” workers to
be exposed to toxic substances if the risk of exposure doubled.
Ms
Marjanac expects attribution suits on similar grounds as the science
develops. In the meantime most plaintiffs are sticking to settled
science. In Norway, Greenpeace is relying on the widely accepted
findings of the Intergovernmental Panel on Climate Change, which says
that, to meet the Paris goal, oil production should be wound down, not
ramped up. The Californian counties have taken care to sue only those
carbon majors with operations in the state.
Plaintiffs
are also using established legal arguments, albeit in novel
ways—alleging, for instance, that rising sea levels caused by companies’
carbon emissions constitute trespass on county land. They are learning
from one another. A lawsuit modelled on Urgenda’s is under way in
Belgium. On October 23rd an Irish court agreed to hear another. A court
in Oregon will hear a similar one in February. A group of Brazilian NGOs
hopes to file its own by April. Following successful lawsuits against
cigarette manufacturers, courts are putting new stress on the fact that
energy firms have long known about the harm caused by carbon emissions
but have done nothing about it.
Defendants, for their
part, usually argue that, whatever the climate science or the harms
caused by greenhouse gases, they are simply not liable. Climate treaties
presume that each country is responsible for its own emissions, says
Fredrik Sejersted, Norway’s attorney-general, who will argue the case
against Greenpeace. “So Norway does not have a legal responsibility for
emissions from oil and gas it exports.” No one denies that the
Netherlands emits carbon dioxide, says Edward Brans, an environmental
lawyer who is representing the Dutch government in its appeal against
the Urgenda ruling. The question is: “Are the government’s actions
unlawful?”
America’s Supreme Court is highly unlikely to
discover “a constitutional right to a stable climate” any time soon,
says Michael Burger of Columbia University’s Sabin Centre for Climate
Change Law. Its courts hesitate to rule on issues generally regarded as
the preserve of the legislature or the executive branch. Federal courts
often decline to consider lawsuits regarding negligence, nuisance,
trespass and the like stemming from carbon-dioxide emissions, arguing
that these are already regulated by the Environmental Protection Agency
(EPA) under a federal law, the Clean Air Act of 1963, which prevails
over common law in its remit.
For now, plaintiffs
approach state courts because federal statutes do not displace common
law at the state level. In climate-friendly jurisdictions such as
California, a jury could conceivably find in their favour, says Tracy
Hester of the University of Houston. But he adds that, if President
Donald Trump or Republicans in Congress relieved the EPA of its
obligation to regulate greenhouse gases, the way may be opened for
lawsuits in federal courts.
Courting the public
In
Norway an opinion poll in August found for the first time that more
people would prefer to leave some oil in the ground in order to limit
emissions than to extract it all. This may not influence the Oslo
court’s decision. But as citizens’ concerns about climate change grow,
so will the prospect of real-life verdicts that resemble Kirkenes’s
fictional one.
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