Climate change, can we sue? New climate change litigation book launched at COP17
Pascale Bird Coordinator, Legal Response Initiative
27th Dec 2011
After the negotiations at Durban, a new book explores the role of litigation in bringing about climate justice.
It remains to be seen exactly what the Durban Platform will mean in the long run, but with frustration mounting at the slow progress of negotiations despite growing evidence of adverse climate impacts, attention is turning towards alternative scenarios where the risk of litigation looms large.
Whether as a liability claim (analogous to tobacco or asbestos litigation against business), or as an argument in a case about tort, planning or energy, climate change is finding its way into the courts in a wide range of countries. Until now the emphasis has been on litigation between states, or on domestic litigation in developed countries, but the picture is starting to get more interesting.
A new book, Climate Change Liability: Transnational Law and Practice aims to fill a gap surveys both the existing national law and litigation and emerging trends in seventeen countries around the world and the European Union. The product of a collaboration between eminent academics and practitioners, Oxfam, Greenpeace and the World Wildlife Fund, the book has just been launched in Durban. Mary Robinson, who wrote the foreword and attended the launch,
described it as: "A real goldmine of information for us all".
The book is aimed at policymakers, businesses, civil society and lawyers including the judiciary. It focuses on the most common types of liability, that of national and local governments in relation to what they do - or do not do - about climate change, and the liability of private individuals or corporations for the effects of climate change, whilst also covering other areas such as human rights law, antitrust and the increasingly important 'soft law', which can have powerful normative effects.
Public law claims range from a review of decisions of public authorities to enforcement actions. In the USA in Massachusetts v Environmental Protection Agency, the Supreme Court ruled that the Environmental Protection Agency (EPA) could not decline to regulate greenhouse gases purely for reasons of policy or expedience, and there has since been significant regulation under the Clean Air Act.
Other types of liability include administrative decisions on planning and permits for projects related to mines, or dams or power plants that are subject to litigation on the ground that climate change considerations were not taken into account. Private law claims range from negligence and nuisance claims to false advertising. Like the history of tobacco and asbestos litigation, there are numerous hurdles for negligence or nuisance claim, and pure climate liability cases have not yet succeeded.
The recent Supreme Court decision in Connecticut v American Electric Power, in which several states and others sought a court order requiring several large electric utilities to reduce their greenhouse gas emissions because they were a public nuisance, was dismissed. If the outlook for mainstream public nuisance litigation is likely to be long and drawn out, it is significant that businesses are now on notice that liability may arise from their failure to
mitigate now. A business risk highlighted in this volume by the contribution of Oxford Professor Myles Allen, whose work on fractional attribution of risk has shown the possibilities of demonstrating attribution of a limited number of extreme weather events to rising greenhouse gases (notably the UK flooding in autumn 2000). In addition, other avenues in indirect or ancillary private liability cases look increasingly likely, such as liability for faulty construction in disaster prone areas.
The book's survey encompasses a representative sample of countries, and brings to light the diversity of approaches and state of play in different jurisdictions. In some countries, climate-related claims are either non-existent or in their infancy, and the legal framework is limited or ineffective; in others actions for various types of climate change liability have already been brought. Both are of interest as their examples illustrate the potential for - and barriers to - liability for climate change.
It is difficult to predict the prospects for climate change litigation, as they are determined by so many different factors, not least the future extent of climate change damage, but also: whether an international climate change regime is achieved or not, the national political and economic context, the attitude of the courts and society, the state of development of the law, environmental awareness and education. However, this book suggests an overall rise in the importance of climate change liability in recent years, both in terms of types of liability and number of cases. To
quote Richard Lord QC, speaking for the editors at the launch: "We trust that this book will help empower Civil Society in its search for climate justice."
Where to find the book
For more information or to purchase a print copy of this book online, go to www.cambridge.org/climateliability/. Cambridge University Press also has a microsite on climate change featuring a number of their titles.
For free downloads of the book in pdf files, go to: http://policy-practice.oxfam.org.uk/publications/climate-change-liability-transnational-law-and-practice-191277