HIGH-SCHOOL student Aji Piper goes snowboarding in the mountains behind Seattle – but for how much longer, he wonders. Miko Vergun fears her native Majuro atoll in the Marshall Islands in the Pacific could soon be under water. In Alaska, Nathan Baring’s friends can no longer hunt for seals because the ice is too thin. Nine-year-old Levi Draheim, who lives in low-lying, coastal Florida, says of his president: “It’s scary having someone in the White House who doesn’t believe in climate change.”
All four are among 21 young people – self-described “climate kids” – who will head for a district court in Eugene, Oregon, in October. Over several weeks, they will face off against federal government lawyers. The plaintiffs will accuse the Trump administration and its predecessors of decades of deceit and wrong-headedness in handling climate change, and will seek an order compelling Washington to devise a plan that will halt and reverse it.
Suddenly, legal action over climate change is getting serious. The climate kids’ case is one of a rash of challenges this year, against governments and fossil fuel companies, in which citizens of various countries will try to get the legal system to reboot our response to the most pressing global problem of our time.
Climate-change litigation has been tried before, with mixed results. Eleven years ago, judges ruled that the federal Environmental Protection Agency had a duty to regulate emissions from motor vehicles, following a lawsuit brought by the state of Massachusetts and 11 others. This opened the door for the Obama administration’s aggressive climate policies. But in 2013, a court threw out a claim by an Alaskan coastal village that big oil companies should pay damages because rising tides and melting ice were flooding residents out of their homes.
Over in the Netherlands, in 2015 a district court sided with 886 Dutch citizens who argued that their government had not exercised its “duty of care” to protect the environment from climate change. The ruling called on the government to make its emissions reduction target more ambitious. The government has appealed the decision and a final ruling is due on 9 October.
With the 2015 Paris Agreement on a knife-edge after the US announced it was pulling out, an increasing number of scientists and activists are echoing the beliefs of former NASA climate scientist James Hansen, who is also advising the climate kids’ case. Hansen has called the judicial system “the only way to get the funds needed to deal with climate change”, because it bypasses the influence of lobbyists. US judges are paying attention. They have rejected attempts by the Obama and Trump administrations to have the climate kids’ case thrown out.
1100 lawsuits invoking climate change worldwide, 888 in the US
Source: Sabin Center for Climate Change Law
One impact of these cases is the momentum they provide for more of the same. The Dutch success was the inspiration for the climate kids’ action, says Julia Olson, chief attorney at an NGO called Our Children’s Trust that is masterminding the case. “We want to be the catalysts, not just as plaintiffs in an American courtroom, but in shifting ideals and priorities round the world,” says Kelsey Juliana, one of the young people suing the US government. She wants to shake up the debate on climate change just as students caught up in the Parkland, Florida, shooting in February did with the discussion of gun laws. “We have a moral authority, and we want to call out government for neglecting its duty,” she says.
The climate kids’ case hangs on the public trust doctrine, which says that the government holds and must protect certain natural resources like lakes and coastal waters in trust for its citizens. Olson says this should apply to the atmosphere and a stable climate too. She wants the courts to uphold the doctrine by ordering the government to draw up a climate recovery plan. It would encompass a long list of environmental actions: withdrawing rights to mine and drill for fossil fuel on federal lands and coastal waters, including those in the Arctic Ocean; ending federal permits for oil and gas pipelines and power plants; tightening the rules on car emissions; and restoring the US’s forests and soils so that they can draw down some of the carbon dioxide in the atmosphere.
The case goes to court at the end of October and is expected to last six weeks, with a range of scientists and experts called to testify on both sides.
There are more than 1000 climate-centred court cases worldwide, according to databases held by the Sabin Center for Climate Change Law at Columbia University in New York and the Grantham Research Institute on Climate Change and the Environment in London. The lawsuits can broadly be divided into two groups, depending on whether they seek government action or corporate reparations.
Among those pursuing governments, several have children and young adults as the plaintiffs. They claim that the political system has failed them, leaving them with little choice but to go to court. “I have been active politically for five years, lobbying, writing letters locally and nationally, organising in the streets. But I am only 18, so I have never had a chance to vote,” says Baring. “We are going to court to show that young people, who are going to suffer from climate change much more than their elders, must be listened to.”
Lawsuits against governments outside the US
Source: Sabin Center for Climate Change Law
Besides the US climate kids, there is Ridhima Pandey, the 11-year-old daughter of Indian climate activists, who is challenging her government’s support for burning coal. In Colombia earlier this year, a court ruled in favour of an action brought by 25 young people, and ordered the government to halt deforestation in the Amazon in order to stem global warming. Lawyers from the Global Legal Action Network, an environmental non-profit based in London, are supporting six Portuguese children affected by the country’s worst-ever forest fires last year, in an action against the European Union at the European Court of Human Rights in Strasbourg.
Other cases against governments lean on the 2015 Paris Agreement. In the UK, a charity called Plan B has brought an action calling for a review of climate policy, which it says is illegal. Tim Crosland, a barrister and director of Plan B, argues that although the UK’s 2008 Climate Change Act requires national emissions to be cut by 80 per cent by 2050, that is not good enough by the standards of the Paris Agreement, which envisages zero net global emissions in the second half of the century to help limit warming to 1.5°C.
The case was backed by David King, who was government chief scientist while the act was being drafted. “The scientific information has changed quite dramatically from 2008,” says King. “Our commitment should now be zero emissions by 2050.” In July, Justice Supperstone turned down the challenge, saying the secretary of state’s refusal to amend the target was not unlawful.
The climate kids want more than Plan B. They say the Paris targets are a political compromise. Their lawsuit demands that the US lead the world in heading towards just 1°C of warming. Hansen says that will require cutting atmospheric CO2 from the current 410 parts per million to 350 ppm – its level in the late 1980s.
Litigants in other cases see governments as the pawns of corporations that mine, drill and ultimately burn most of the carbon that is warming the planet. Saúl Luciano Lliuya, a Peruvian farmer and mountain guide, has travelled to Europe to challenge Germany’s second-largest power company, RWE. He is taking the company to court over a potential catastrophe high in the Andes.
Luciano Lliuya lives in Huaraz, a town of 120,000 people directly beneath the glacial Lake Palcacocha, in a region of the Andes where glaciers are melting faster than any on Earth. As a result, the lake’s volume has grown 30-fold, to more than 17 million cubic metres. Efforts to siphon off water have failed. Daene McKinney at the University of Texas at Austin, who has studied the situation in detail, says a landslide or icefall into the lake could cause its contents to spill onto the town below.
Luciano Lliuya’s case against RWE is based on recent research tracing rising CO2 levels to certain corporations. It began with a 2014 study by Richard Heede at the Climate Accountability Institute in Colorado, which found that almost two-thirds of total industrial emissions of CO2 and methane can be attributed to the products of just 90 companies. On that basis, Luciano Lliuya alleges that RWE is responsible for 0.47 per cent of the total global emissions that are melting the glacier above Huarez, and should contribute the same percentage to the cost of engineering works to make the town safe. RWE denies liability.
In November last year, a regional court in Germany said the case should enter the evidence phase, meaning both sides have to collect evidence and assemble experts for court hearings. No trial date has yet been set.
A subsequent study by Heede with Myles Allen at the University of Oxford found that six companies, including Chevron and ExxonMobil, each bore responsibility for between 2 and 3 per cent of the gases behind global warming.
This study became the basis for the Californian cities of San Francisco and Oakland taking five giant oil companies – Chevron, ExxonMobil, ConocoPhilips, Shell and BP – to court. The cities say that a 2 per cent responsibility for climate change should warrant a company paying 2 per cent of the bill for protecting their communities from rising sea levels in San Francisco Bay.
Estimates by the Pacific Institute, a think tank in California, suggest that a possible 1.4 metres of sea level rise along the state’s coast by 2100 would threaten property worth $100 billion, two-thirds of it in San Francisco Bay. Its report argued that oil companies should be liable for the impact of their products, just as tobacco companies were forced in the 1990s to pay out $206 billion in a settlement with smokers.
The cities’ case drew a lot of attention but in June, judge William Alsup ruled that district courts were not the right place to decide such matters. However, another California judge, Vince Chhabria, has sent comparable cases brought by San Mateo and Marin counties and the City of Imperial Beach to court at the state level. New York City is also engaged in a similar action that has yet to reach court.
cases seek additional emissions cuts from governments
Source: Sabin Center for Climate Change Law
“My impression is all these cases fall down when it looks like the courts are being asked to make public policy,” says Allen. Fossil fuel companies, he says, can argue that society needed the oil, gas and coal they got rich on last century, and that there was no way of producing and burning them without emitting CO2. That, however, could open up another legal avenue. The idea that CO2 could be captured from power station exhaust and stored underground has been around for decades, but has not received any significant funding. If courts can establish that fossil fuel companies knew about carbon capture and storage technologies, a case could be made that they should have been investing in them.
“If they’d done that,” says Allen, “we would now be at maybe 10 per cent carbon capture. Since [fossil fuel company] profits for the last 30 years have been pretty substantial, they wouldn’t have had to invest a high percentage to kick-start the global carbon capture industry.” One thing a court could still do is require companies to get rid of CO2, says Allen.
A critical question is how long governments and corporations have known about the threats of climate change. Several plaintiffs say they have found evidence that bosses were aware of the climate consequences of their activities long ago, but denied it to their investors, customers and the wider public. In the case of Exxon, a 2017 study by Geoffrey Supran and Naomi Oreskes of Harvey University suggested that the company’s internal research tied its products to climate change as early as 1977.
“A legal case could be made that oil companies should invest in carbon capture”
When it comes to political awareness in Washington DC, the expert witnesses in the US climate kids’ case will probably highlight the loss of innocence as dating back to 1965. That was when a report from President Lyndon Johnson’s Science Advisory Committee reported rising CO2 in the atmosphere, for which “at least during the recent past, fossil fuel combustion has been the only significant source”. The committee’s environmental pollution panel warned that by 2000 this increase “may be sufficient to produce measurable and perhaps marked changes in climate” that “could be deleterious from the point of view of human beings”.
One expert helping the climate kids, Gus Speth, a senior environmental adviser to President Jimmy Carter in the 1970s, has reviewed US government climate policy over the past half-century. “The federal government knowingly set and stayed a course for major climate change, with terrible consequences to be endured especially by present-day young people and future generations,” he says, calling this “the greatest dereliction of civic responsibility in the history of the republic”.
Allen suggests the US may provide a unique opportunity for litigants because it has abandoned the international climate process. An obvious defence for governments and corporations alike is that the courts have no jurisdiction because the global community has taken charge of fighting climate change with treaties such as the Paris Agreement. Those in the dock can argue that they are doing everything that the international community has demanded of them, based on solid science.
In many countries, that might be a plausible defence. But in the US, where the president contests the science and has said he intends to withdraw from the Paris Agreement, the courts may rule that international law has no jurisdiction. If the government continues to set itself against climate science, and places itself outside the ambit of international policy-making, then who is left to judge it but the country’s own courts?
This article appeared in print under the headline “Polluter pays?”