International Legal Avenues to Address the

Plight of Victims of Climate Change:

Problems and Prospects
Climate change is here to stay, whether
our politicians like it or not

ENVIRONMENTAL DEFENDER’S OFFICE

 Presentation outline
In US and Australia - cases about climate change
argued in courts for over 15 years
Private Law
• Areas of climate litigation:
– Tort law
• Nuisance
• Negligence
– Trade Practices
– Administrative law
 Urgenda V Dutch
• brought against the Dutch government by Urgenda, a Dutch foundation
dedicated to sustainability, and nearly 900 individuals.
• Facts
• findings of the Intergovernmental Panel on Climate Change, .
• its targets for reducing greenhouse gas (“GHG”) emission levels (about
17% below 1990 levels by 2020
• At an international meeting, Holland had signed a communiqué stating
that cuts of at least 25% to 40% by 2020 were necessary.
• Urgenda argued that the Dutch state had therefore breached a duty of
care owed to them (and to Dutch society generally), had infringed their
rights under the European Convention on Human Rights (“ECHR”), and
had contravened various obligations under international law and the
Dutch Constitution.
 Urgenda V Dutch
• The government argued that its commitments
were fair compared with those made by other
countries, and that the court had no legitimate
right to dictate climate change and economic
policy to a democratically elected government.

• Held: ordered the Dutch government to cut its

greenhouse gas emissions (GHGs) by at least 25%
compared to 1990 levels by the end of 2020.
 Anticipated Cases
• Klimaatzaak, Belgium
• Launched by 11 leading lights in December
2014, the Klimaatzaak (literally “climate case”)
campaign has signed up 9,000 citizens as co-
plaintiffs.
• They are calling for a 40% cut in greenhouse
gas emissions from 1990 levels by 2020. 
 Peruvian farmer v RWE

• Peruvian farmer v RWE

• Saul Luciano: German energy firm RWE should pay
compensation for its historic activities.
• The Peruvian farmer lives in the flood path of a glacial
lake that is on the verge of bursting its banks as
greenhouse gases heat up the climate.
• He is asking RWE – one of the EU’s top emitters – to
pay €20,000 towards work to protect the valley. That is
0.47% of the estimated project cost, based on RWE’s
0.47% share of global emissions between 1751 and 2010.
 Tort law - Nuisance
• Public nuisance is inconvenience or damage
to rights of public
• Private nuisance relates to interference with
enjoyment of private land
• Most public nuisances cases relating to
climate change have occurred in USA
 Tort – Nuisance cases
Connecticut v American Electric Power
• Case brought by 12 States and 3 NGOs
• Sued 5 coal fired power stations responsible for
10% of US emissions
• Governments sued to protect public land and
public health
• Dismissed on basis non-justiciable
• On appeal decision vacated as said reasonable to
seek limit to emissions of power stations
Tort cases – public nuisance cont’d
People v State of California v General Motors
• California sued 6 of World’s largest manufacturers
of automobiles for impacts on climate change
• Sought damages for adaptation
• Court again determined the grounds were non-
justiciable and appealed
• Appeal dismissed in 2009 due to greater US
action on climate change
 Tort law – Kivalina v Exxon Mobil
• Native inhabitants of Kivalina commenced nuisance claim against
9 oil companies, 14 power companies and coal company
• Because of erosion villagers are being forced to relocate their
village and seeking compensation
• The defendants contended that the plaintiffs’ claims were non-
justiciable under the political question doctrine and that the
Plaintiffs lacked standing to pursue their global warming claims in
nuisance on the ground that their injury was not “fairly traceable”
to the defendants’ conduct.
• Case was struck out on the basis of non justiciable questions and
plaintiffs lacked standing
• Now been appealed
 Negligence
• To succeed in negligence, a plaintiff must
prove that: the defendant owed the plaintiff a
duty, recognised by law, requiring the
defendant to adhere to a certain standard of
conduct; the defendant breached that duty;
the plaintiff suffered loss; the loss was caused
by the defendant’s breach of duty; and the
loss suffered by the plaintiff was not too
remote
 Negligence
• Defendants in most negligence
claims will be producers and users
of fossil fuels
• Could be claims in nuisance or
negligence against poorly
constructed sea walls that shift
problems to other locations
• Problem in many cases involving
climate change will be establishing
duty of care and also causation
 Negligence hurdles
Corner v Murphy Oil
• case arose out of Hurricane Katrina
• defendants- 9 oil companies, 31 coal companies &
4 coal companies saying endangered environment,
and public health as well as private property
• Court dismissed said no standing and non-
justicable
• On appeal found did have standing and did not
present a political question
 Administrative Law
• Most common way that climate change litigation has
occurred in Australia
• First wave of decisions challenged approvals of new
power stations and coal mines
• More recently climate risks from flooding and other
issues have become an issue
 Key US cases
Massachusetts v EPA
• State of Massachusetts, 11 other states and
NGOS sought review of denial by EPA to regulate
emissions from CO2 under Clean Air Act
• EPA argued decision not to regulate car
emissions not significant but Court felt that view
that small incremental steps could not be
regulated was erroneous as while regulation
would not solve the problem it would slow the
impacts
 Massachusetts v EPA

• The Supreme Court applied the three part test for

standing in Lujan v Defenders of Wildlife, namely:
• (a) The plaintiff has suffered “an injury in fact” which is
both concrete and particularised, and actual and
imminent, as opposed to conjectural or hypothetical.
• (b) The injury is fairly traceable to the challenged
action of the defendant.
• (c) There is a likelihood that the injury can be
redressed by a favourable decision, as opposed to this
being merely speculation.
 Massachusetts v EPA
• EPA did not contest the link between GHG emissions and climate
change. However, the EPA argued that its decision not to regulate
GHG emissions from new motor vehicles contributes so
insignificantly to the petitioner’s injuries that it cannot be
challenged in court.
• The Supreme Court held against the EPA stating that:
• “Its argument rests on the erroneous assumption that a small,
incremental step, because it is incremental, can never be
attacked in a federal judicial forum. Yet accepting that premise
would doom most challenges to regulatory action. Agencies, like
legislatures, do not generally resolve massive problems in one fell
regulatory swoop
 Recent UK decision
• Queen v Secretary of State for Transport
Recent case of High Court in UK on third runway
at Heathrow Airport. Partly succeeded on basis
of failure to consider up to date information on
climate change impacts of increased aviation
travel, as well as natural justice.
 India
• Court on its own Motion v. State of Himachal Pradesh &
Others, Application No. 237 of 20 judgment dated 6
February 2014. (Rohtang Pass)
•  
• Gaurav Kumar Bansal v Union of India & Others, Original
Application No. 498 of 2014.(NAPCC)
• Ratandeep Rangari v. State of Maharashtra and Others,
Application No. 19 of 2014.(HFC)
•  
•  
Public International law Remedy
 Conceptual Beginning
• According to the Intergovernmental Panel on
Climate Change (IPCC), human-induced climate
change will transform the ecological balance of our
planet and lead to dramatic societal problems.
• Tuvalu, a small island state in the South Pacific
whose land will be inundated within the next fifty
years, announced in 2002 that it would take
Australia to the International Court of Justice (ICJ).
 Tuvalus Petition
• The petition discusses how climate change has already
resulted in extensive damage to the Inuit’s traditional areas
because snow and ice react so quickly to climate warming.
These changes have been occurring in the Arctic since the
1960s and are confirmed by the Arctic Climate Impact
Assessment (ACIA)
• Petitions claim : violations of the right to life, liberty, and
personal security the right to residence and movement ; the
right to inviolability of the home ; the right to the preservation
of health and well being the right to the benefits of culture ;
the right to work and to fair remuneration
 ILC work on State responsibility and
Environment
• Commission’s (ILC) project on state responsibility,
• Draft Article 19, an international crime may result, inter alia, from . . (d)
a serious breach of an international obligation of essential importance
for the safeguarding and preservation of the human environment, such
as those prohibiting massive pollution of the atmosphere or of the seas.
• Based on this language, a state’s deliberate unwillingness to reduce its
considerable greenhouse gas emissions would seem to qualify as
massive pollution of the atmosphere, especially because the effects of
climate change are both substantial and longstanding.
• However, the distinction between international crimes and
international delicts proved controversial and was dropped just before
the ILC adopted the articles on state responsibility in 2001. As a result,
the whole concept of state crimes is now bathed in uncertainty.
 Basis of State Responsibility
• following steps: (i) Identifying the damaging
activity attributable to a state, (ii) establishing
a causal link between the activity and the
damage, (iii) determining either a violation of
international law or a violation of a duty of
care (due diligence), which is (iv) owed to the
damaged state. Step (v) in a court of law
would be to quantify the damage caused and
relate those back to the activity.
 Basis of State Responsibility
• The FCCC and Kyoto Protocol provide only a
partial answer to the issue of responsibility for
damage.
• The Convention does not address the issue
directly. Rather, during the negotiation process
of the FCCC industrialised nations emphasised
that they would not accept any treaty provisions
hinting at state responsibility (Bodansky, 1993;
Ott, 1996; Sands, 1992; Verheyen, 1997).
 Options for Climate Victim Under Climate
Treaty
• Article 2 of the UNFCC Convention states:
• The ultimate objective of this Convention and any related legal
instruments that the Conference of the Parties may adopt is to achieve,
in accordance with the relevant provisions of the Convention,
stabilization of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the
climate system. Such a level should be achieved within a time frame
sufficient to allow ecosystems to adapt naturally to climate change, to
ensure that food production is not threatened and to enable economic
development to proceed in a sustainable manner
• Moreover, in accordance with Article 18 of the Vienna Convention on the
Law of Treaties, a state that signs a convention must restrain itself from
measures that would defeat the object and purpose of the convention
 Options for Victims Compliance Committee
• Article 14 of the Climate Convention offers the parties various
opportunities to settle their disputes. If parties wish to submit their
problem to legal dispute settlement, they may declare so in a written
instrument.
• Article 14, paragraph 5 includes rules for a conciliation procedure. This
procedural alternative permits a state to launch an investigation to
determine whether any damage it has sustained is related to the climate
policy practiced in another country.
• First, the worst greenhouse emitters remain outside the Protocol, and as
developing nations, China and India have no binding obligation to reduce
their emissions. Second, the Compliance Committee only investigates
whether parties to the Kyoto Protocol are observing their obligations. The
Committee has no authority generally to investigate claims for
compensation of damages due to climate change.
 International law and Judicial Options
• Small island states could rely on the principle of
equity between generations and/or the
precautionary principle, but the legal status of
these principles is doubtful
• ICJ’s jurisdiction is confined to only those disputes
to which both parties have given their consent
• international law of responsibility is moving
toward preventing future breaches of law rather
than only remedying past wrongs.
 Judicial Options continues
• Advisory Opinion Achieving a majority within
the General Assembly could be challenging
even though there are many small island states
• However, UNEP has not been granted general
authorization by the General Assembly to
request an advisory opinion as have entities
such as the WHO and the Food and Agriculture
Organization.
 Other Sectorial Remedy
• Groups suffering because of climate change could also
resort to the dispute settlement mechanisms of the
United Nations Convention of the Law of the Sea. UNCLOS
is applicable because climate change damages the marine
environment through increased shore erosion,
penetration by seawater into freshwater and groundwater
reserves, damage to fish populations and fisheries, and
coral damage
• Interestingly, ITLOS resorted to the principle of
Precaution in its judgment on provisional measures in the
Southern Bluefin Tuna Cases
 INTERNATIONAL HUMAN RIGHTS

• Human rights under international conventions and

instruments may provide a source for climate
change litigation.
• Environmental litigation has occurred under two
such instruments, the European Convention for the
Protection of Human Rights and Fundamental
Freedoms, before the European Court of Human
Rights (ECtHR), and the American Convention on
Human Rights, before the Inter-American
Commission for Human Rights (IACHR).
 INTERNATIONAL HUMAN RIGHTS

• Till now no case addressed climate change, but these cases

illustrate the potential for climate change litigation.
• Lopez Ostra v Spain, the applicant lived metres away from
and suffered for three years from smells, noise and
polluting fumes caused by a sewerage plant treating liquid
and solid waste. The responsible municipal and other
authorities adopted a passive attitude to her entreaties.
• The ECtHR held Spain had breached Article 8 (right to
respect for private and family life) in that the authorities
did not strike a fair balance between the town’s need for a
sewerage plant and the applicant’s right under Article 8
 INTERNATIONAL HUMAN RIGHTS

• In 2005, the Inuit, indigenous people in the Arctic region,

filed a petition against the United States alleging human
rights violations resulting from the US’s failure to limit its
emissions of GHGs and therefore reduce the impact of
climate change.
• The petitioners invoked the right to culture, the right to
property, the right to the preservation of health, life and
physical integrity. The Inter-American Commission for
Human Rights rejected the petition in 2006 without giving
reasons. However, on the request of the petitioners, the
Commission agreed to a hearing of the matter in 2007
 Inuits Petition and Issues
• According to Professor Anaya, the petition may break new ground in
international law. What can the IACHR decide if it rules in favour of the
petitioners?
• First, if the IACHR finds one or more violations of human rights, it must draft a
preliminary report outlining corrective measures. Following this action, the
defendant-state has a fixed time to implement the recommendation. If the
case is not resolved within three months of the transmittal of the preliminary
report to the defendant-state, the IACHR can decide to issue and publish a final
report containing possible monitoring measures. It can also include an annual
report of the case to the General Assembly of the OAS, in which event the
claim will receive even greater attention. It should be noted that the reports
prepared by the IACHR as well as the proposals and recommendations
contained in these reports are non-binding in international law; thus, the
United States cannot be legally obligated to perform any action.
 Issues in Climate Litigation
• Overcoming the ‘drop in the ocean’ problem in climate change litigation
requires courts to embrace climate change as a multiscalar’ environmental
problem with particular, local impacts as well as global ones. What might
seem ‘too small’ an impact in global terms could thereby be found to be a
measureable and significant impact in the context of a local or regional
environment.
• Perhaps the most difficult challenge confronting plaintiffs in climate change
litigation is the problem of demonstrating that the emission of GHGs to the
atmosphere by a particular activity or facility will give rise to specific
impacts on a local area or population. This problem of proof arises across
the spectrum of climate change litigation, whether based in tortious, public
law or international causes of action. In a tortious context, for example,
there is generally the need to demonstrate a causal nexus between the
defendant’s conduct and the injuries claimed by the plaintiff
 Issues in Climate Litigation Continues
• A large part of the problem of proof faced by plaintiffs in climate change
cases stems from gaps or uncertainties in relevant climate science
• The dissenting judgment in Massachusetts v EPA of Chief Justice Roberts
(with whom Justices Scalia, Thomas and Alito agreed), demonstrated the
potential power of ‘uncertainty’ arguments in climate change litigation. The
judgment criticised the petitioners’ failure to trace their alleged injuries back
through a ‘complex web’ of causal arguments to the amount of global GHG
missions that might have been limited with EPA standards.
• The problem of proving in litigation a causal connection between a
particular activity and impacts produced through climate change generally
becomes more difficult the more steps there are in a putative causal chain.
Domestic greenhouse gas emissions from a substantial industry sector, such
as transportation, that contribute to global warming, and well-characterised
impacts like sea level rise sit at one, less problematic, end of this spectrum
 Conclusion
• there will be more frequent use of the
avenues of litigation, and the avenues used to
litigate climate change-related matters will
continue to expand. As governments are likely
to implement new legislation to tackle climate
change, such as carbon emissions trading
schemes, this could also provide litigants with
new ways in which to challenge climate
change-inducing actions.