Climate Change Litigation Turns Up the Heat on Corporations

This July 12 photo shows an iceberg that broke off from a glacier near Innarsuit, Greenland threaten houses near the shore, whose residents are prepared for an evacuation. (Magnus Kristensen/Ritzau Scanpix via AP)

(CN) — A regional high court in Germany has invited a Peruvian farmer to bring a damage claim from 6,600 miles away. He blames RWE, one of Germany’s largest power companies, for contributing to global warming and causing a glacier above his home in the Andes to dangerously melt.

In London, some of the world’s biggest corporations — and biggest polluters — are being asked to appear in a few days before a human rights commission from 6,400 miles away — the Philippines. The commission is investigating whether climate change made the deadly Typhoon Yolanda in 2013 even more catastrophic.

Legal experts say these are crucial cases in a new legal assault: People around the world are bringing claims, sharpened by advances in science, against the world’s biggest corporate polluters.

The lawsuits aim to make companies pay for the destruction caused by a warming planet and force them to cut their carbon emissions.

Jessica Wentz, a senior fellow at Columbia Law School’s Sabin Center for Climate Change Law, said the increase in lawsuits against fossil fuel companies and carbon dioxide emitters is a response to “the growing urgency of the climate change problem and the inadequacy of government responses.”

Parallel to this strategic litigation is a wave of legal action against national governments to force them to reduce carbon emissions.

As of today, no one has successfully sued a private company for causing climate change — though they’ve tried. But some legal analysts think the pendulum may be shifting.

“A lot of it has to do with science, how science has evolved,” Joana Setzer said in a telephone interview with Courthouse News. She is a law researcher at the Grantham Research Institute on Climate Change at the London School of Economics and Political Science.

In a recent analysis in the Oxford Journal of Legal Studies, she and her colleagues said new legal challenges “are by no means doomed to failure” because they draw upon “the existence of a robust scientific consensus on anthropogenic climate change.”

In particular, Setzer said they are buttressed by research that breaks down, in minute detail and down to fractions, how much of the world’s greenhouse gas emissions were emitted by each company.

In the case of RWE, that would be 0.47 percent, according to the 2015 lawsuit brought by Saúl Luciano Lliuya, a Peruvian farmer. He is backed by Germanwatch, a German environmental group.

The lawsuit relies on a much-discussed 2013 study by Richard Heede, a climate change researcher and head of the Climate Accountability Institute in Snowmass, Colo.

Heede determined that 63 percent of greenhouse gas emissions between 1854 and 2010 could be traced to 90 entities — the big names in oil and natural gas production, power generation, cement making and coal extraction.

“Headquartered in 43 countries, these entities extract resources from every oil, natural gas, and coal province in the world, and process the fuels into marketable products that are sold to consumers in every nation on Earth,” the study said.

The case out of the Philippines relies on Heede’s study too.

The Commission on Human Rights of the Philippines, an independent constitutional office, is examining whether the so-called “carbon majors” — as the 90 entities are named collectively — should be deemed responsible for climate change. Typhoon Yolanda, also known as Haiyan, killed more than 6,000 people.

The petition was filed in 2015 by Greenpeace Southeast Asia-Philippines and the Philippine Rural Reconstruction Movement, on behalf of numerous organizations and individuals.

The petition argues “it is only fair and just” that companies that profited so much from fossil fuels “account for the resulting harm.”

The petitioners are not seeking compensation, but “are seeking to stop harm, to keep the coal, oil, and gas in the ground,” Hasminah D. Paudac, the legal adviser for Greenpeace Southeast Asia-Philippines, said in an email.

She said the petitioners want “to get official recognition that these fossil fuel companies are responsible for human rights impacts.”

Similar legal actions are in court in the United States.

In 2017, two Californian counties — San Mateo and Marin — filed lawsuits against oil, gas and coal companies and trade groups. San Francisco and Oakland pursued similar claims, though a federal judge dismissed their claims in June. In June this year, New York City threw down the gauntlet and sued the world’s five largest carbon emitters.

The Peruvian farmer’s case — now at a pretrial phase involving expert testimony — is moving forward and becoming a major test in this legal milieu.

The case is inherently complex in its transnational reach.

Here you have Lliuya, the Peruvian farmer, watching his farm threatened by rising water levels in Lake Palcacocha. The fear is the glacier will suddenly slide into the lake, which is held in check by a dam, and cause a major flood — pushing a wave as high as 165 feet.

But is the glacier melting only due to global warming, or are there other causes? And how can the farmer’s experts and attorneys show, at the molecular level, that pollutants emitted from RWE power plants in Europe are causing the glacier to melt?

Initially, in 2016, a court in Essen rejected the case. The court ruled that climate change was so complex that it was impossible to clearly say RWE’s carbon emissions were the cause for glacier melting in the Andes. But a regional high court in Hamm disagreed and allowed the case to proceed.

“This is new ground,” said Guido Steffen, a spokesman for RWE, in a telephone interview. Steffen said the farmer’s case should not be admitted under German civil law.

“(Global warming) is influenced by so many factors, so many causes,” he said.

Lliuya is asking RWE to pay its share of the cost to safeguard against a catastrophic flood, which he argues is about $20,000. The idea is to drain Lake Palcacocha to prevent a flood. He is also asking for about $7,000 as reimbursement for flood defense work he’s done on his land.

“As far as money is concerned, this is not much,” Steffen said. “We all agree we’re not talking about money, but basic liability.”

RWE argues that if it is held liable, the court would open the floodgates for claims against any entity that emits carbon dioxide. Steffen said that would be a disaster.

“Somebody who runs a taxi company, a trucking business or an airline” could be sued for damages, Steffen said. “This could be a war by everybody against everybody. That would not help society.”

In its defense, the company adds that it is reducing its greenhouse gas emissions and doing its part to stop global warming.

“This is a political case, not a legal case,” Steffen said.

Under German law, the suit could end up in the nation’s supreme court.

Setzer said these cases deliberately push the boundaries.

“A more traditional lawyer would freak out with something like this,” she said of the Peruvian case. “It almost pushes too far in what it is trying to achieve.”

But she said “it sends an important message” and makes the judiciary deal with climate change.

“It has this pedagogical effect to make you understand what climate change is,” she said.

Setzer added that calling climate change a human rights issue is a novel argument.

From Nov. 6 to 8, the London School of Economics will host hearings in the Philippines human rights case.

Major oil companies have been asked to present testimony, but so far none have. In filings to the human rights commission, the biggest oil and gas corporations deny that the commission has jurisdiction in the matter.

ExxonMobil, Chevron and BP did not reply to messages seeking comment. Shell declined to comment.

Corporations have argued that their activities play an insignificant part in causing global warming. The courts, faced with the complexity and transnational nature of climate change, have found it hard to say who is to blame and ruled that society as a whole is responsible.

But the Philippines petitioners allege companies knowingly were causing climate change and failed to act. And they accuse the companies of continuing to undermine “climate action.”

They are “ignoring the science and the harms related to the combustion and use of the coal, oil and gas that they produce,” the petition states. It says they are “denying the science and running campaigns of confusion, similar to the tactics employed by the tobacco industry.”

The petitioners say the Philippines is “under severe threat of climate change” and that people hit by Yolanda have been forced to resettle farther inland due to sea level rise and shoreline loss.

The petition also says the lives of the fishing families on hard-hit Alabat Island are suffering from declining catches and that their coconut crop and other harvests appear to be suffering from warming temperatures.

But success in the courts is far from certain.

After Hurricane Katrina hit the U.S. Gulf Coast in 2005, a lawsuit accused oil and gas companies of causing the planet to warm and making Katrina an even more destructive hurricane.

In 2008, Inupiat Eskimo people of Kivalina, Alaska, sued ExxonMobil and claimed climate change caused by the company had led to coastal erosion and shoreline loss due to melting Arctic sea ice.

Both suits were rejected by federal courts, in part because judges said they could not prove oil and gas companies caused global warming.

Wentz, of the Columbia Law School, said the cases in Germany and the Philippines are not bound by the U.S. rulings.

“The chance of success really depends on the jurisdiction, the legal theory, and the judge,” she said in an email. “To be honest, so much of this litigation is so novel that it’s hard to predict the outcome.”

(Courthouse News reporter Cain Burdeau is based in the European Union.)

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