6 minute read
Climate Litigation: Suing for Climate Justice
Cassandra Maclachlan
Climate change is real and it’s happening now.
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Nine out of ten of the hottest Australian summers on record have occurred within Anjali Sharma’s lifetime. She’s only in Year 10. This record-breaking streak culminated in the catastrophic bushfires of late 2019, prompting Sharma and other concerned students to launch a class action against the Australian government.
Just a few years prior, another youth-led climate case was underway in Pakistan. Ashgar Leghari, a law student from a drought-stricken farming family, asserted that, by not taking sufficient adaptation measures, his government was failing to uphold his constitutional rights.
Although separated by time and geography, these cases share a key commonality: their necessity despite the existence of international climate change treaties. Before our applicants were born, the world’s nations signed the United Nations Framework Convention on Climate Change (‘UNFCCC’). Its stated goal: the safe, equitable and timely ‘stabilization of greenhouse gas concentrations in the atmosphere’. However, emissions have since only continued to accelerate to unprecedented levels. Amidst this chronic inaction, climate litigation has emerged as an invaluable tool to agitate for climate justice.
Climate justice? Climate justice is as broad as it is complex, but a formulation useful to the climate litigation discussion is one advocated by Dr Jeremy Baskin, Senior Fellow of the Melbourne School of Government. It demands
engagement on two fronts. First, the ‘disjuncture between responsibility for climate change and its impact’. Second, the paradox that those most affected by climate change possess the least capacity to cope. Basically, unless affected parties have a venue in which to pursue redress for negative climate impacts, their diminished ability to cope remains unaddressed.
The problem of neutral framing These twin demands of climate justice take a back seat in the text of the UNFCCC. Hewing to the principles of international comity and cooperation, it avoids language around State liability despite ‘noting’ that the largest share of historic and current emissions originated with developed countries.
Further exacerbating the responsibility/impact disjuncture, the UNFCCC frames emissions at the country-level only and makes no demands of major polluting corporations. Despite knowing the disastrous implications of their trade as early as the 1980s, the fossil fuel industry had no accountability under the framework. Instead, it instigated a campaign of disinformation and aggressive lobbying to combat any threats to their profits.
Given this history of interference, it was no wonder that NGOs walked out of the 19th Convention of the Parties under the UNFCCC (COP). Defending the walkout, Hoda Baraka, Global Communications Coordinator for 350.org, argued that coal interests had been allowed to use COP19 as a greenwashing opportunity, undermining any meaningful treaty-making progress. Non-State actors would not be included in the scope of formal international climate action until 3 years later at COP21—and only on a voluntary basis.
Global trends in climate litigation hold up a mirror to all these shortcomings, with the prospect of remedial enforcement against State and corporate entities being restricted to domestic courts. While the majority of climate cases feature government respondents, corporations are increasingly being taken to task for their contribution to global warming.
The role of courts in climate law The surge in strategic litigation is not without detractors and procedural difficulties. Professor Donald Kochan of Chapman University is critical of the trend, holding that courts are neither well-equipped nor constitutionally empowered to make new law or policy.
David Bookbinder, Chief Counsel for the Niskanen Centre, insists, however, that climate cases do not seek to usurp the role of the executive or the legislature.
Also pushing back against accusations of judicial overreach, Tessa Khan, cofounder of the Climate Litigation Network, maintains that ‘courts are reaching decisions in accordance with existing law and science’.
The science has been a sticking point. Historically, the satisfaction of evidentiary burdens has been a stumbling block in climate cases and polluters are keen to emphasise complexity to avoid liability.
Real corporate responsibility? But the tide is turning.
Saúl Luciano Lliuya, farmer and mountain guide from the Peruvian city of Huaraz, is suing RWE, Germany’s largest energy provider, for its proportionate impact on his property. Huaraz, nestled at the base of the Andes, is threatened by devastating flooding from an upstream mountain lake. Glacial melting driven by warming temperatures has caused the basin to swell to 17 million cubic metres of water, necessitating round the clock maintenance of the city’s emergency warning systems.
Lliuya is relying on cutting-edge attribution science exemplified by the ground-breaking Carbon
Majors Report. The report, which found that just 100 companies are responsible for 70% of emissions since 1988, places RWE at number 37 on that list, with a proportionate contribution of 0.5% overall.
Guido Steffen, spokesperson for RWE, stresses a distinction between responsibility and culpability. He emphasises climate change as a ‘global problem’ and believes it’s impossible to accurately trace emissions to any single emitter.
The German Essen Court disagrees. It recently accepted the premise that a company may be liable if found in fact to be responsible for the damage caused by its emissions. That the case has progressed to the evidentiary phase is regarded by Dr Roda Verheyen, Lliuya’s lawyer and co-founder of the Climate Justice Programme, as its most significant triumph with farreaching implications for subsequent litigation: ‘I have already won, legally’.
The impacts of climate litigation COP26 has been delayed until 2021 due to COVID-19. For climate justice advocates like Dr Saleem Huq, director of the International Centre for Climate Change and Development, progress under the UNFCCC stalled long before the pandemic hit. Citing developed countries’ failure to reduce pollution and set up adequate compensatory schemes under the framework, Dr Huq states, ‘The courts are the only other avenue we can take.’
Legal scholars say it’s too soon to definitively gauge the value of climate litigation, but its effects are already being felt in courtrooms and beyond. Governments and corporations alike have been put on notice.
Leghari won the case against his government in the Lahore High Court. Justice Syed Mansoor Ali Shah condemned the government’s ‘delay and lethargy’ in implementing the adaptation measures needed to protect its citizens’ fundamental rights to life and dignity.
Sharma’s case follows a similar track. Seeking an injunction to prevent the expansion of a coal mine in rural New South Wales, the youths claim that the Minister for the Environment owes young people a duty of care. To fulfil that duty, they say, the coal must stay in the ground.
‘Lawsuits are not a panacea,’ says Khan. ‘It takes significant public vigilance and pressure to ensure that judgments translate into real change.’
Sharma seems to be aware of the profile-raising value that her class action represents. ‘Even if we don’t get an injunction from the Minister, the biggest thing about this case is that we’re building support, we’re building momentum.’
The grownups were meant to have solved this problem by now. After over 25 years of empty rhetoric, it’s no wonder that young people are harnessing the power of the courts to try to wrest back their futures.
People under the age of 18 may express their interest in joining the class action (equitygenerationlawyers.com/cases/ sharma-v-minister-for-environment). Everyone else is encouraged to support their social media campaign (instagram.com/ classaction4climate).
