Victoria B.C. joins the movement for climate accountability, demanding compensation from Big Oil companies for climate change impacts

On October 12, the Council of Victoria B.C. voted unanimously to send a Climate Accountability Letter to twenty companies, including Exxon, Chevron and Shell, asking them to cover the costs the community is likely to  incur to plan for or recover from the impacts of climate change.  The motion also included an agreement to call upon fellow local governments across Vancouver Island, British Columbia and Canada to write similar letters. Such letters are part of  the Climate Law in our Hands campaign launched by West Coast Environmental Law and almost 50 other groups  in January 2017.

Accountability Letters may be seen as largely symbolic, but are a first step in the movement for legal action against these “Carbon Majors”, which is the goal of the Climate Law in our Hands campaign.  The campaign and the movement is based on the work of Richard Heede, whose 2013 research identified 90 entities (producers of oil, natural gas, coal, and cement) that are collectively responsible for almost two thirds of human-caused greenhouse gases historically. Heede updated his research in July 2017 –  naming the 10 oil and gas companies who are responsible for 26% of all fossil fuel emissions since 1988.  See the Climate Accountability Institute , where Heede is Director, or see  West Coast Environmental Law for a spreadsheet with details about each company, as well as model letters for municipalities who want to join the campaign. Andrew Gage of WCEL compiled an excellent overview of new research and legal developments about Climate Accountability in September .

In September, San Francisco and Oakland, California became the latest and largest cities to sue the Carbon Majors: see “California leads the way: San Francisco and Oakland the latest to sue fossil fuel companies” . (They  join the California counties of Marin, San Mateo and San Diego and the city of Imperial Beach).  The press release from the City Attorney’s Office outlines their case against Chevron, ConocoPhillips, ExxonMobil, BP and Royal Dutch Shell  : “The lawsuits ask the courts to hold the defendants jointly and severally liable for creating, contributing to and/or maintaining a public nuisance, and to create an abatement fund for each city to be paid for by defendants to fund infrastructure projects necessary for San Francisco and Oakland to adapt to global warming and sea level rise. The total amount needed for the abatement funds is not known at this time but is expected to be in the billions of dollars.”

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

Climate Justice:  The International Momentum towards Climate Litigation   offers a unique discussion of the intersection of climate litigation and climate negotiations, and whether the Paris Agreement will contribute to a growth in climate litigation. It also provides an up to date summary of past and current cases of climate litigation against companies and governments – focusing on the various grounds of human rights to a clean environment, liability for climate-change induced damages, climate refugees, and corporate deception in the U.S., Netherlands, Pakistan, Peru, the Philippines,  and New Zealand.  It examines past litigation in other sectors, including tobacco, asbestos and oil spills. Amongst the recommendations: the fossil fuel industry be removed from the climate negotiations process and banned  from having a role or voice in setting climate change policy;  introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, which would  provide compensation for  individuals and communities.  Another recent but much briefer note, “Courts take on Climate Change” , published in Nature Climate Change in June, addresses the issue of liability and quotes Andrew Gage, Staff Counsel at West Coast Environmental Law , who asks, “Can you really have a business model that costs the world trillions of dollars a year and not have a conversation about who should be paying for that?” … “The question is, can such litigation play a role in accelerating the transition away from fossil fuels or is it only going to be bickering over who pays for the major damages we’re experiencing?” An example of such bickering is chronicled in a June 7 article in the New York Times, “Regulators Fear $1 Billion Coal Cleanup Bill” .

And who will be the lawyers who argue these cases?  Tom Lininger, a professor at the University of Oregon School of Law, proposes  a series of “green ethics” amendments to the American Bar Association rules in his paper  “Green Ethics for Lawyers” in the  Boston College Law Review .

Note that the Adapting Canadian Work and Workplaces to Climate Change (ACW) website recently  posted the 2015 presentation by Roger Cox, lead lawyer in the landmark Urgenda case.  See The Urgenda Climate Case and its Consequences  .  

The State of Climate Change Litigation: Can Canada and the U.S. follow Urgenda?

The landmark Urgenda decision in the Netherlands  in June 2015 has ignited and re-ignited activity around the world, around the prospect of using litigation to fight climate change . “Unlawful or Above the Law? ” in the CCPA Monitor (Nov/Dec. 2015) reviews the Urgenda decision in detail, and puts it in the context of Canadian policy and historical legal cases which have challenged Canada’s withdrawal from the Kyoto Protocol.   A fuller treatment of the article, titled Canada’s Failure to Reduce Greenhouse Gas Emissions (October 31, 2015) appears on the Lawyers’ Rights Watch Canada website . The authors advocate a legal challenge to Canada’s GHG emissions reduction policies. Much of the legal argument is based on the concept of environmental rights as human rights; a Canadian pioneer on this issue is David R. Boyd, whose article “ The Constitutional Right to a Healthy Environment” appeared in Environment Magazine in 2012  . (a fuller treatment appears in his book The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2012)).   A more recent publication by Ecojustice, The Right to a Healthy Environment: Canada’s Time to Act    (2015) , acknowledges a large debt to Boyd’s work, and the BlueDot movement  of the David Suzuki Foundation works in practical ways towards the goal. In December 2015, Toronto became the 100th municipality in Canada to pass a declaration supporting its residents’ right to a healthy environment . Climate Change: Tackling the Greatest Human Rights Challenge of our Time (Feb. 2015) by the Center for International Environmental Law and CARE considers how to address the issue within the UNFCCC process.

Regarding liability for climate change damages, West Coast Environmental Law in B.C. and the Vanuatu Environmental Law Association released Taking Climate Justice into our own Hands  on December 8, 2015  “which explains the legal basis for climate-impacted countries to set the rules for climate damages lawsuits and how those rules can be enforced against international fossil fuel polluters.” Further, the authors propose language for a Climate Compensation Act, based on common law and thus adaptable to in any country in the world. (Vanuatu released a Statement for Climate Justice in June 2015  ).  A newly-launched blog series by the Alberta Environmental Law Centre promises “to provide updates on climate change law developments and include insights from our related law reform research.”

The Sabin Center for Climate Change Law at the Columbia Law School, New York, publishes compendium of cases in the U.S. and non-U.S. , and maintains a database called Climate Change Laws of the World . In 2015, the Center published Climate Change in the Courts: An Assesment of non-U.S. climate litigation , as well as Climate Change and Human Rights 2015  (in cooperation with UNEP). The introduction states: “The question is no longer whether human rights law has anything to say about climate change, but rather what it says and how it can best be brought to bear. This report is the most detailed and comprehensive study yet undertaken of those questions”.

In a November 2015 blog, “Failure to take climate action is not only morally wrong, it’s illegal” Michael Burger discusses the Urgenda and Ashgar Legari case in Pakistan, and links them to current climate change cases in the United States.   Most high profile of these have been led by Our Children’s Trust, arguing for the right of children to live in a healthy environment. In November in Washington State  , Judge Hollis Hill ruled in favour of youth, stating that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Other cases are being pursued by Our Children’s Trust in Massachusetts, North Carolina, Pennsylvania, and Colorado. In August 2015, Our Children’s Trust filed a landmark constitutional climate change lawsuit against the federal government in the U.S. District Court of Oregon; plaintiffs include 21 young people and climate scientist Dr. James E. Hansen, serving as guardian for his granddaughter and for future generations. The complaint document is here; the plaintiffs request a court order requiring the President to implement a national plan to decrease CO2 to a safe level, defined as 350 ppm by the year 2100. In January 2016, a judge granted intervenor status  in the case to the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers ,the American Petroleum Institute, and other energy industry groups. To watch for: March 9, 2016: the first oral arguments will be heard in a Eugene Oregon court.

Internationally, cases claiming damages from climate changes are underway in the Philippines and Peru .  To keep up to date internationally, follow eLaws News by the Environmental Law Alliance Worldwide (ELAW) , who have also published Holding Corporations Accountable for Damaging the Climate (2014)   . The Center for International Environmental Law  also focuses on climate liability and climate justice.