Climate change in the courtroom

Copenhagen failed to tackle the most serious crisis humanity has ever faced. Can the tools of the lawyer’s trade help save the planet?

As early as the 1950s, the first law suits were filed in response to the first major study to show a causal link between smoking and lung cancer, but it took almost half a century before ‘big tobacco’ was forced by juries in the United States to pay big awards.

In the 1970s, in the days before tetraethyl lead (TEL) levels in petrol were regulated, a client of the North Kensington Neighbourhood Law Centre in London lived next to a recently-constructed flyover. His children began doing poorly in school. They were tested at the local hospital and found to have dangerously high levels of lead in their blood. The Law Centre brought a High Court action against the leading petrol companies. The companies moved successfully to strike out the claim as having no basis in law and the law centre was lucky not to be hit with a crippling costs award.

Just over a decade later, the World Health Organisation labelled TEL ‘the mistake of the 20th Century’. It is now scientifically accepted that TEL retards the mental development of children and petrol companies have removed TEL from their product.

Climate change litigation has increased exponentially in the new century. The Center for Climate Change Law shows that only five climate change actions were brought in the US in the whole of the 1990s. Eleven came before the courts between 2000 and 2005. Following the entry into force of the Kyoto Protocol in 2005, 11 suits were filed in 2006, rising to 31 in 2007 and 71 in 2008.

The human rights approach has been used in different jurisdictions and litigation can achieve more than one purpose. As the case below show, it can: Force governments or corporations to disclose information which may help to educate the public about the potential environmental impact of a given project, for example, by using the rules of disclosure in criminal or civil cases or by employing freedom of information legislation.

• Help to confront and punish a notorious polluter;

• Protect campaigners facing criminal charges or civil suits, while causing embarrassment to the targets of their campaigns; and

• It can be used tactically, to bring parties to the negotiating table with the aim of settling out of court.

The Kivalina Case

The native Iñupiat village of Kivalina in North Alaska is beginning to fall into the ocean. Ice, formerly a wave barrier, is melting because of Greenhouse Gas (GHG) emissions. The 400 villagers will have to be relocated at a cost of up to $400 million. However, they are not going quietly; they are taking some of the most powerful corporations on earth to court. Kivalina v. ExxonMobil Corp., et al., (2008) constitutes an important development in rights-based litigation against those principally responsible for climate change. The suit claims damages related to climate change against nine oil companies (including ExxonMobil, BP and Royal Dutch Shell, as well as fourteen power companies and one coal company.

Their complaint echoes the rights guaranteed under the Universal Declaration of Human Rights (UDHR) and International Covenant on Economic Social and Cultural Rights (ICESCR) in asserting that ‘Defendants’ emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights’.

Historically, climate change nuisance claims have been rejected by courts. The main problem has been showing that individual polluters’ emissions were the proximate cause of the plaintiffs’ harm. It is also hard to prove the degree to which the harm was increased owing to an individual defendant’s emissions. The Kivalina suit ingeniously attempts to circumvent these problems by including claims for civil conspiracy.

The complaint cites the Arctic Climate Impact Assessment (ACIA) to show that defendants ‘conspired to create false scientific debate about global warming in order to deceive the public.’ The plaintiffs accuse ExxonMobil, AEP, BP America Inc, Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern of engaging in ‘… an agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue’.’.

In bringing the Kivalina suit, the San Francisco-based Center on Race, Poverty and the Environment, together with the Native American Rights Fund in Anchorage, have drawn on the experience of tobacco litigation where plaintiffs used civil conspiracy to target corporations’ fraudulent campaigns to mislead the public about the effects of their products.

The Inuit Circumpolar Conference

A similar case on behalf of indigenous peoples in the Arctic was filed in December 2005, citing many of the same arguments and scientific research as the Kivalina case. The tactical approach was different. Instead of targeting the polluters themselves, the Inuit Circumpolar Conference took the US Government to task for its failure to protect the Inuits’ human rights. They petitioned the Inter-American Commission on Human Rights for ‘relief from human rights violations resulting from global warming and climate change caused by … the United States.’

The petition asserts that the US is obligated to protect the rights of the Inuit by its acceptance of the American Declaration of the Rights and Duties of Man.

The Inuits’ approach was to avoid taking on the wealthy transnational corporations in protracted and costly court battles. Instead, they seek a form of international equitable relief in a cooperative approach to resolving the problems caused by climate change. The case remains under review.

The Niger Delta

In 2005, eight Nigerian communities in the Niger Delta filed a case in the Federal High Court of Nigeria against Shell, ExxonMobil, ChevronTexaco, TotalFinaElf and Agip joint venture companies, the Nigerian National Petroleum Corporation and the Nigerian government, to stop a practice known as gas flaring. Refining companies are only interested in the oil and not the gas, so they burn off the gas by ‘flaring.’

Refined, that gas could be worth $15 million each day to Nigeria’s economy. Flaring causes mercury, benzene and lead to be released if the gas is flared at too low a temperature. This cocktail of chemicals causes cancers, respiratory diseases and blood disorders in humans. Flaring also releases nitrogen oxide and sulphur dioxide, creating acid rain.

For human rights litigators, the good news came in November 2005 when, in Gbemre v Shell et al., Justice Nwokorie in the High Court of Nigeria issued a landmark declaration and held flaring to be a violation of the constitutionally- guaranteed right to life. He ordered the Respondents to cease flaring immediately and found they had violated the law by failing to carry out an environmental impact assessment in the Applicants’ community. He ordered them to ‘take immediate steps to stop the further flaring of gas.’ He also ordered Nigeria’s Attorney General and Ministry of Justice to amend the law so as to remove from the statute book all provisions purporting to permit gas flaring.

However, a year later Justice Nwokorie was removed from the case and transferred to the far north of the country. When attempts were made to hold Shell in contempt for failing to comply with the court order, Shell were instead granted a further year within which to file and implement a detailed scheme to phase out flaring. When the Plaintiffs’ lawyer went to the courthouse in April 2007 to request a copy of the scheme, not only was there no scheme on file, but the court file itself was mysteriously unavailable.

Shell and the Nigerian National Petroleum Corporation continue to violate the human rights and to pollute the environment of the people of the Niger Delta in a case that is far from over. However, where the rule of law is weak and corruption rife, climate change litigation in Nigeria seems to be winning the battle but losing the war.

Greenpeace v. GM

Another potential litigation strategy in seeking accountability for climate change is the justification defence. This has been used successfully in a number of cases by Greenpeace activists and other environmental campaigners as well as anti-war protestors. Campaigners provoke the state into prosecuting them, with the aim of using the ensuing publicity to persuade governments and transnational companies to change policies and practices which damage the environment.

The tactic was pioneered by Lord Melchett, as director of Greenpeace UK in 1999 when he and 27 other activists were acquitted of criminal damage after destroying an experimental field of genetically modified crops in Norfolk, England. Their carefully calculated legal tactics wrongfooted the prosecutors, while the defendants’ obvious sincerity and desire to act in the public good even caused the officer who arrested them to decide to join Greenpeace.

The Kingsnorth Case

The defence strategy was also used when six Greenpeace activists admitted trying to shut down the Kingsnorth in October 2007 by occupying its smokestack and painting the word ‘Gordon’ on its chimney. Their ‘justification defence’ was based on the proposition that they were trying to prevent climate change causing infinitely greater damage to property around the world.

Professor James Hansen, director of NASA’s Goddard Institute for Space Studies, testified that there is an immediate need to protect property endangered by rising sea levels. He and other witnesses cited areas at serious risk, including parts of Kent, the Pacific island state of Tuvalu, parts of Greenland, China’s Yellow River region, the Larsen B ice shelf in Antarctica, coastal areas of Bangladesh and the city of New Orleans.

Hansen said this one power station emits the same amount of CO2 as the 30 least polluting countries in the world combined.

The acquittal of the ‘Kingsnorth Six’ is the first case where preventing property damage from climate change has been invoked successfully as a ‘lawful excuse’ in any court. The defendants’ vindication came just over six months later, when the UK’s new Department for Energy and Climate Change ruled that it will not allow any new coal-powered plants to be built in Britain without carbon capture and storage (CCS). Any new plants will have to guarantee 25 per cent CO2 capture immediately, with 100 per cent capture by 2025.

The Tokyo Two

International human rights law is being cited in the case of the Tokyo Two: an important environmental case in Japan, offering a new twist to the defence of necessity. In January 2008, Greenpeace Japan began to investigate claims by a whistle-blower that crewmembers in Japan’s whaling fleet have for years been embezzling valuable whale meat and selling it for personal gain.

In April 2008, Greenpeace investigators delivered to the Tokyo District Prosecutor a box they had taken from a courier depot. It was addressed to a crewmember from the whaling fleet and contained black market whale meat. Instead of an investigation into embezzlement and high-level cover-up, it was Junichi Sato and Toru Suzuki, two Greenpeace investigators, who were arrested and charged with theft of a box of whale meat and trespass.

The defence has invoked Article 19 of the International Covenant on Civil and Political Rights, the freedom to ‘seek, receive and impart’ information, in support of their ‘justification’ defence, arguing that the defendants’ actions were intended to expose official corruption and to stir debate about government-subsidised ‘research’ whaling.

This is Japan’s first ‘necessity’ defence, and lawyers for the Tokyo Two plan to call international human rights experts to demonstrate that this concept is also recognised in the European Court of Human Rights where, under Article 10, the duty of a journalist or campaigner to gather and impart information to the public may in certain circumstances override other duties and responsibilities, even the duty to obey certain criminal laws.

UNESCO’s environmental mandate

Another field of creative lawyering is that pioneered by Climate Justice and a coalition of environmental organisations, who have petitioned UNESCO’s World Heritage Committee in 2004 to place a number of environmentally endangered localities on their List of World Heritage Sites in Danger owing to the threats posed to the sites by climate change.

In 2004 the Belize Institute of Environmental Law and Policy petitioned UNESCO about the impact of climate change on the Belize Barrier Reef Reserve System, the largest barrier reef in the northern hemisphere, comprising offshore atolls, several hundred sand cays, mangrove forests, coastal lagoons and estuaries. The system’s seven sites illustrate the evolutionary history of reef development and are a significant habitat for threatened species, including marine turtles, manatees and the American marine crocodile.

Citing UNESCO’s Intergovernmental Oceanic Commission, petitioners demonstrated the threats to the Reef from rising sea levels; changes in sea currents resulting in interference with ecosystems and increased temperature and precipitation levels; collapse of fishing industry; coral bleaching; cholera and seafood poisoning, increasingly likely because of the warming of the oceans; and also the impacts on marine and human life of harmful algal blooms.

Major conservation operations are necessary to make the reef system more resilient to global climate change and to reduce GHGs. Petitioners ask that a Coral Bleaching Response Programme be set up to provide early warning of major bleaching events, to monitor their spatial scope and impact, and to evaluate management policies and strategies for dealing with mass bleaching events. They emphasise that sustaining coral reefs requires a plan to reduce GHG emissions and lessen the future impacts of climate change. Studies suggest that 40 per cent of the world’s coral reefs will have been lost by 2010, and another 20 per cent in the next two decades unless urgent management action is implemented.

A report by the Sydney Centre for International and Global Law on Australia’s responsibilities under international law for the Great Barrier Reef World Heritage area highlighted many of the same problems as those cited in relation to Belize. This report was considered by the WHC together with the rest of the petitions.

Climate Change in the US Courtroom

One further case merits inclusion as an example of a successful negotiating strategy resulting from a problematic courtroom tactic. In 2002, Friends of the Earth USA, Greenpeace USA, and the City of Boulder, Colorado filed a lawsuit in which they were later joined by the California cities of Arcata, Santa Monica and Oakland. They alleged that Export-Import Bank of the United States and the Overseas Private Investment Corporation (OPIC) illegally provided more than $32 billion in financing and insurance to fossil fuel projects over a ten year period without assessing whether the projects contributed to global warming or impacted the US environment, as they were required to do under the National Environmental Policy Act (NEPA).

Fossil fuel projects financed by the two agencies from 1990 to 2003 produced cumulative emissions equivalent to nearly 8% of the world’s annual CO2 emissions. In August 2005, a federal judge found that US cities suffering economic and other damages from climate change had standing to sue under NEPA, opening up the courthouse doors to those injured by climate change. Testimony from the case, which successfully asserted that climate change is real and caused by human activities, later informed the Massachusetts v EPA decision, where the US Supreme Court held that carbon dioxide and other GHGs are pollutants that can be regulated under the Clean Air Act.

In February 2009, the case was settled; the Export- Import Bank agreeing to take carbon dioxide emissions into account in evaluating fossil fuel projects and to create an organisation-wide carbon policy. OPIC has set a goal of reducing GHGs associated with projects by 20 per cent over the next ten years. Both agencies have committed to increasing financing for renewable energy. In an encouraging note for other climate change litigators, the settlement awarded $100,000 in Plaintiffs’ attorneys’ fees and costs pursuant to the Equal Access to Justice Act, (28 U.S.C.§ 2412).

The ‘Greenpeace defence,’ of goading governments and transnational corporations into taking legal action that can produce a reasonably quick result in the courtroom offers one useful model for campaigners and litigators. Going down the ‘Tobacco Road’ and taking the climate change fight into the halls of government and boardrooms of big business can produce worthwhile negotiated settlements, as in the Friends of the Earth case. It also has the risk of being time-consuming and costly, but it can also force directors and shareholders in the world’s greatest polluters to rethink their policies. Already some oil companies are showing concern about their public image in this regard. Shell’s climate-friendly pop-up ads all but obliterated recent internet reports from Copenhagen, while BP’s new corporate logo is calculated to look as if our cars are powered by organically grown sunflowers. Lawyers have a major part to play in the struggle to get the big polluters to change their policies, not just their PR.

Richard Harvey is a barrister at Garden Court Chambers, consultant to Greenpeace International on the Tokyo Two case and a member of the Haldane Executive Committee.