Climate Change in Courts
Hamm Civil High Court, Germany.
On one side of the room Saul Luciano Lliuya, thirty-seven-years-old Andean guide, on the other side the representative of the RWE AG, the German energy giant. The dispute is on 23.000 euros as partial funding to protect the city of Huarez (Perù) and its 120.000 inhabitants threatened by the rising level of the Palcacocha lake waters due to an upstream melting glacier for global warming. The Lliuya case is the last example of the worldwide wave of legal claims to establish responisbility of major emitters of GHGs for climate change induced damages.During the Climate Justice Day at COP23 experts and NGOs representatives discussed the status and the future development of Climate Change Litigation, a diversified category of lawsuits concerning climate change.
“By simplifying”, explained S. Marjanac of ClientEarth, “at national level the claims are filed by individuals or associations against the state or polluting companies”.But when we need to attribute the liability we have to face the complexity of the phenomenon: “It is caused by the cumulative emission of millions of actors around the world and over a long period of time, it is multijurisdictional and crosses national boundaries, there are multiple drivers, including deforestation, and the science is complex and with a residual element of uncertainty”.
There has been a long history of Climate Change Litigation, most of which have occurred in the US, but over the past 15 years there has been a new wave with more positive outcomes. The reasons? On one hand, the increase in loss and damages led citizens to ask for the identification of the responsible, on the other, wider scientific knowledge defined the specific damages in different part of the world and the fossil-fuels companies’ contribution. Furthermore, C. Muffett (President of the Center for International Environmental Law (CIEL) explained that evidence of cover-up and lobbying has been discovered: not later than the 80s the companies were aware of the danger and since the 90s they engaged to misinform and minimize.
Lawsuits are brought even against governments for their insufficient climate policies. Indeed, the most innovative trend is to invoke the State’s duty of care to protect its citizens from the threat of global warming. The arguments are based on human rights, constitutional principles and international commitments assumed since the 1992 United Nations Framework Convention on Climate Change until the 2015 Paris Agreement. Last week the trial Greenpeace v. Norway began: citizens challenge the new licenses to oil drilling in the Artic which, in addition to violate constitutional rights, are inconsistent with the chance of limiting average global temperature in line with the international commitments. This is not a unique case: positive deliberations have been delivered in the Netherlands and Pakistan, and more are still pending.
“Most of the time, plaintiffs are under-age or young because they do not have the right to vote and this is the only way they have to protect the right of future generations”, explained Noemi Ages of Greenpeace USA. In response to the lack of political will, frustration is growing in civil society and it turns to courts for answers. This type of lawsuits are tools to bring to bear on governments and companies.
Conscious of this, the Fijian lawyer Makereta Waqavonovono is raising awareness among her citizens: “I am trying to explain them that we should not rely solely on negotiations because they are moving too slowly”. The project is to file a new lawsuit for the damages that Pacific Islands are already facing.A new door is open for civil society to enhance its requests and the situation is still in evolution.
In the meanwhile, the Hamm Civil High Court, overruling the first instance deliberation, declared admissible the Lliuya case. The next appointment is on the 30th November.