A recent UN climate report provides significant validation to lawsuits that are pushing fossil fuel companies to pay for climate damage and governments to be more aggressive on climate mitigation.
In last week’s landmark report from the Intergovernmental Panel on Climate Change, this trend of climate disputes is credited with influencing “the outcome and ambition of climate governance”.
The IPCC report is from the world’s leading climate scientists and focuses on how society can curb greenhouse gas emissions and mitigate the worst effects of global warming. It notes that “beyond formal climate policy processes, climate disputes are another important arena for various actors to confront and collaborate on how to manage climate change.”
The report says nearly 40 cases have been opened since 2015 against governments challenging their efforts to mitigate or adapt to climate change. And it says the lawsuit has the potential to “affect the rigor and ambitiousness of climate governance.”
“If successful,” the report notes, “such cases could lead to an increase in a country’s overall ambition to tackle climate change.”
Governments, as well as the oil and gas industry and its allies, have criticized the lawsuits as inappropriate because they ask a court, rather than lawmakers, to resolve climate issues. But proponents of the process said its inclusion in the report is an important acknowledgment that things can make a difference.
“You can have people questioning the importance of lawsuits or minimizing the impact of lawsuits, but when you have it in the IPCC, have all this consensus, and get all these countries to sign it – it brings an important, established voice justifying the prevalence of lawsuits. matters,” said Delta Merner, head of the Union of Concerned Scientists’ Science Hub for Climate Litigation, which provides scientific evidence for climate disputes.
Merner also noted that, for the first time, the North American chapter of the IPCC report emphasizes climate misinformation. A number of U.S. climate cases are based on consumer fraud claims that fossil fuel companies have misled the public about the dangers of climate change (climate wire10th of March).
“The IPCC holds as the scientific consensus that climate change rhetoric and misinformation intentionally undermines science, contributes to misconceptions of scientific consensus, and blocks climate change action,” she said.
From fringe idea to credible tool
The new report is the latest in a major three-part climate analysis by the IPCC. The first two sections, published in February and last August, outlined the ways the climate system is changing and how those changes affect the planet’s human and natural systems (green wireApril 4).
The February report also pointed to the role of climate disputes, but the most recent report devotes a whole section of a chapter to the practice.
“It gives credibility to climate disputes as a tool,” said Andrew Gage, an attorney at West Coast Environmental Law in Vancouver, British Columbia. “It’s something that the courts themselves can take as confirmation that they have a role to play in these cases.”
He noted that both reports also give a big boost to attribution science — a burgeoning field of research examining whether, and to what extent, climate change is contributing to extreme weather events.
Gage said the fossil fuel industry rarely questions the IPCC’s climate findings when brought to court, because its scientists have provided input to the assessment process.
“Once the IPCC has come to conclusions, it’s harder for one of the players to say, ‘We don’t agree,’ if they were involved,” he said.
The report also notes that lawsuits are being used to argue against financial investments in the fossil fuel industry. It cites a “groundbreaking verdict” by the Hague court of May 2021, which held Royal Dutch Shell PLC legally responsible for greenhouse gas emissions (climate wiremay 27th).
The report also points to claims made against banks, pension funds and investment funds for failing to consider climate risks in their decision-making, and for failing to disclose climate risks to beneficiaries.
“These lawsuits also have an impact on the financial market without directly involving specific financial institutions, but in some way aim to change their risk perception and attitude towards low-carbon activities,” the report says.
Gage, of West Coast Environmental Law, said the report could alert more companies.
“Certainly, investors and financial advisors and regulators may be somewhat affected by the fact that climate disputes are less of an afterthought and more of something they should consider on a daily basis in their business decisions,” he said.
A ‘powerful force’ in climate governance
In the United States, pro-regulatory litigants are more likely to win cases related to renewable energy and energy efficiency, and more likely to lose in cases related to coal-fired power plants, according to the IPCC report.
It notes that outside the United States, more than half of cases are decided in favor of climate action. And it says that cases can also have consequences outside of the courtroom.
“These effects include changes in the parties’ behavior, public opinion, financial and reputational implications for involved actors, and impact on further lawsuits,” the report notes.
It says cases “have attracted significant media attention, which in turn may affect how climate policy is perceived.”
The report notes that while there is evidence to show that cases have influenced climate policy, “it is still unclear to what extent climate disputes actually result in new climate rules and policies and to what extent this applies to all cases.”
But it adds, “There is now growing academic agreement that climate disputes have become a powerful factor in climate management.”
Karen Sokol, a law professor at Loyola University, New Orleans, said the IPCC predicted the lawsuit boom, writing in his 2007 report that “more lawsuits are likely to come as countries and citizens become dissatisfied with the pace of international and national decision-making on climate change. Modify.”
Now, she said, “it is clear that this is a global phenomenon and that it is expanding across jurisdictions and locations, relying on state and local laws. … This is part of our response, and it’s here to stay.”
The report notes that most climate cases occur in the United States, Australia and Europe, and have only recently emerged in developing countries. It says courts have played a “more active role for climate governance” in democratic countries, but notes that recent legal reforms have been implemented in non-democracies. In China, for example, a public interest environmental law allows individuals and groups to file environmental disputes.
The report acknowledges that insufficient research has been done on “whether and to what extent different legal traditions and political systems influence the role and importance of climate disputes”.
A recent wave of climate disputes
The report provides an introduction to both government and corporate litigation, noting that cases against governments fall into two categories: claims that question government efforts to mitigate or adapt to climate change, and claims that challenge governments. sue for allowing the use of fossil fuels.
The first judicial victories against governments in cases brought in the Netherlands and Pakistan in 2015 “motivated a wave of similar lawsuits over climate change around the world,” the report said.
Since then, 37 cases have questioned the effectiveness of legislation and policy. Several cases are also trying to shape new legal concepts such as “rights of nature” – which have been recognized in Colombia. In the United States, however, an appeals tribunal ruled in March that it had no jurisdiction to rule in a “nature’s rights” case challenging an oil pipeline permit in Minnesota (energy wireMarch 15).
The report describes a case in the Netherlands in which the country’s highest court ruled in 2019 that the Dutch government must reduce greenhouse gas emissions by 25 percent by 2020 compared to 1990 levels.
A Dutch environmental group working on the transition to sustainable energy initially took the government to court in 2015. A lower court ruled in its favour, with the high court deciding in Urgenda v. State of the Netherlands Foundation in 2019.
In its ruling, the Supreme Court referred to IPCC reports as “broadly supported scientific insights” that must be taken into account “when fleshing out the positive obligations imposed on the State”.
Since the first ruling of 2015, “significant changes in the climate policy environment” have occurred in the Netherlands, according to the report, including the introduction of a Climate Act and the government’s decision to close all remaining coal-fired power plants by 2030.
The report also points to issues with government licensing, including a ruling in Pretoria, South Africa, which found that climate change could be considered in the approval of coal-fired power plants.
It also points to a ruling in Australia finding that the environment minister had a “duty of care” to Australian children when determining whether to give permission for a coal mine. However, an appeals court overturned the decision three weeks ago, writing that the “duty of care” claim was “unsuitable for resolution” by the judiciary (climate wireMarch 16).
The report also details lawsuits against the oil and gas industry by local governments and activists seeking compensation for climate-related damage related to the burning of fossil fuels.
Many of the US cases involve cities and states suing fossil fuel companies, but those lawsuits are embroiled in a lawsuit over where they should be heard. Many challengers have filed suit in state court, but the industry has tried to take the cases to federal courts, where they have envisioned a friendlier reception. The conservative 6-3 majority of the Supreme Court is skeptical of the climate cases.
Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2022. E&E News provides essential news for energy and environmental professionals.