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Climate Change Warriors’ Latest Weapon of Choice Is Litigation

By Jeremy Hodges, Lauren Leatherby and Kartikay Mehrotra
May 24, 2018

In the global fight against climate change, one tool is proving increasingly popular: litigation.

From California to the Philippines, activists, governments and concerned citizens are suing the biggest polluters and national governments over the effects of climate change at a break-neck pace.

“The courts are our last, best hope at this moment of irreversible harm to our planet and life on it,” said Julia Olson, an attorney for Our Children’s Trust, a legal challenge center in the U.S. that is involved in climate change litigation across 13 countries, including the U.S., Pakistan and Uganda.

The wave of activity is about channeling the fervor of a social movement to drive change via the legal system. The arguments vary based on both culture and the law. In the U.S., home to more cases than anywhere else in the world, many recent suits involve plaintiffs seeking to protect climate-change rules passed under former President Barack Obama. In Europe, it’s largely governments being hammered over pollution-reduction plans that fall short of EU targets.

“The political branches of government have had decades to stop destroying our climate system; now only court-ordered mandates will stop the destruction our governments are perpetuating, and increasingly supporting,” said Olson, whose primary dispute is on behalf of a group of American teenagers suing the federal government to end U.S. dependence on fossil fuels. Both the Obama and Trump administrations have sought to end the case and been rebuffed.

California is quickly becoming ground zero for climate cases in the U.S., where eight cities and counties are suing oil companies to recover the cost of infrastructure needed to protect against rising sea levels. Cases by San Francisco and Oakland face a motion to dismiss the lawsuit today in a California federal court, where Chevron Corp., BP Plc, Exxon Mobil Corp., ConocoPhilips and Royal Dutch Shell Plc will argue that remedies and penalties for climate change are a matter for lawmakers, not a single judge.

The topic came up twice during BP’s annual meeting on Monday. Chief Executive Officer Bob Dudley declined to disclose certain climate targets, or even answer some questions from activist investors, and cited the risk of legal action.

“You want to get us to make statements here in front of you that you can document that will lead to a class action,” Dudley said in response to one question from the Union of Concerned Scientists about pending U.S. litigation against energy companies. Such legal actions are “a business model in the United States,” he said.

The climate lawsuits aren’t all about cleaning up the environment. Last year, 27 percent of U.S. climate-related cases—largely those brought by companies—opposed protections, according to the Sabin Center for Climate Change Law, which keeps a database on climate-change cases. Among those: a dispute filed by ExxonMobil against the states of Massachusetts and New York that called for the end of an investigation into Exxon’s knowledge and disclosure of climate change-related risks. The case was thrown out in March by a federal judge in New York.

Most cases press governments and companies to take greater action on climate change. In the California case today—and similar cases across the country in local governments like New York City and Boulder, Colorado—lawyers are increasingly targeting fossil fuel producers, using some of the same tactics employed in 1990s suits against Big Tobacco.

Plaintiffs have sued the world’s biggest oil companies—including Shell, BP, Exxon, Chevron and ConocoPhillips—alleging they deliberately concealed the role fossil fuels have played in speeding up climate change.

The Trump administration has written in support of the five companies, as have 15 states, arguing that a court order for the cities would force the government to amend its energy policies. Ordering the companies to pay up would empower “every person on the planet” to file similar claims, according to the U.S. Justice Department.

And the American suits look to be influencing lawyers the world over: Similar cases could be imminent in the Netherlands and France.

More cases are using human rights arguments, in which plaintiffs make the case that climate change has threatened or taken away populations’ basic rights to shelter, health, food, water and even life. From Ugandan children who sued their government for failing to protect them from climate change to hundreds of elderly Swiss women who sued the country for failure to shield them from climate change’s effects, human rights cases are a small but growing approach to this type of litigation.

Some cases may not focus on climate change itself but center on factors that lead to climate change, like air pollution. These lawsuits often involve an NGO or an individual taking a city or district to court to claim that the air quality laws are being breached, forcing authorities to take action.

The strategy has paid off particularly well in the U.K. and Germany, where suits have forced significant government policy changes. Germany is leading the way. Currently 28 German cities are subject to cases over illegal levels of pollution. On May 17, The European Commission said it was taking six countries—Germany, France, U.K., Italy, Hungary and Romania—to the European Court of Justice over their failure to tackle air pollution.

Governments fighting climate change litigation reflect a power struggle. Courts could force adjustments to the political platforms that got some of these officials elected. In the U.S., the Trump administration has said a victory for those cities demanding damages would undermine the government’s “strong economic and national security interests in promoting the development of fossil fuels,” while possibly threatening its position on the Paris climate accord.

That’s the official argument to dismiss the cases. But for attorneys committed to defending the environment in court, that’s the very point.

“It’s a legitimate method of seeking to not only draw attention to the issue of climate change but really hold governments to account because it’s already causing harm to people around the world,” said Sophie Marjanac, a lawyer at the activist law firm ClientEarth, which is behind several European pollution suits. These cases “hold elected officials to account, especially when those officials are breaching fundamental human rights.”

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