Abstract
The liability of multinational entities that have caused greenhouse gas emissions through their extraction activities in the fossil fuel industry has pushed climate change on to the international agenda. Those corporations now face challenges from litigants who have initiated negligence or nuisance actions for breach of duty of care. Suits against individual corporations are now possible due to the development of attribution science that can register the extent of each liability. Litigants from third-world countries have to satisfy locus standi in bringing claims which is difficult to establish in some jurisdictions. For example, in Lliuya v. RWE, (Az. 2 O 285/15, OLG Hamm) 24/1/2017, a South American farmer brought a claim in Germany against RWE-AG, Germany’s largest electricity producer, to challenge the effects of greenhouse gas emissions from its plant in Peru. This paper asks: Is it possible for foreign litigants to bring a private tort action against the defendant corporation that has allowed greenhouse gas emissions, in that corporation’s domestic courts, and to surmount the obstacle of locus standi? It concludes that it is possible for litigants from developing countries to litigate effectively because the foreign courts’ statutory protections, such as the doctrine of separation of powers or political rights doctrine can be overcome if climate litigation is viewed as a human rights matter. The prospects of success of litigants has increased by the impact of event attribution science that can quantify the extent of private actor liability in climate change.
Keywords
Multinational entities alleged to have caused greenhouse gas (GHG) emissions through actions in developing countries are now more exposed to litigants bringing claims in foreign courts. The claimants who inhabit environments in developing countries where the corporations extract mineral resources are more likely to suffer damage. This has made climate change an international cause and it has been recognised in the preamble of the Intergovernmental Panel on Climate Change (IPCC) which first convened in 1988 to signify worldwide recognition that climate change required immediate attention. 1 The continuous increase in GHG emissions is considered a key factor responsible for climate change and developed countries have an equitable duty to reduce CO2 gas emissions. 2 The test of locus standi is crucial in establishing the liability in the courts which is now possible to progress because of attribution science that can quantifiably determine the extent of each defendant’s emissions.
This paper argues that there must be a more flexible attitude towards locus standi in tort claims by alien claimants, in order to increase legal responsibility for multinational entities operating in developing countries where the environment has been impacted by GHG emissions. This will prevent the corporations at source and lead to injunctions to prevent environmental degradation. It is possible to prevent climate change and the argument here is that courts are establishing a precedent that can have a universally beneficial effect and assist litigants from developing countries to pursue remedy in foreign courts.
Background
From 1970 to 2011, CO2 (carbon dioxide) emissions have increased by about 90 percent, with heat from fossil fuel combustion and industrial processes contributing about 78 percent of the total “greenhouse” effect in the atmosphere. Agriculture, deforestation and other land-use changes have been large contributors. 3 Against this background, 189 countries have signed the Paris Agreement, out of the 197 countries that originally signed the UN Framework Convention on Climate Change. 4 The accord was adopted on 12 December 2015 and in it, inter alia, all Parties have agreed to limit global temperature increases, keeping them to well below 2° Celsius, and given the grave risks, to reduce it to 1.5° Celsius. 5
Globally, the top countries responsible for GHG emissions are China, the Member States of the European Union and the US, which together contribute more than half of total global GHG emissions. Collectively, the 10 countries with the highest levels of emissions account for nearly three-quarters of all global emissions, while the bottom 100 countries account for only 3.5 percent. 6
From a legal perspective, the potential exists of framing an effective means for the particular entities that emit GHGs to be assigned corporate responsibility with regards to climate change through the courts. This has, however, been a gradual process, owing to a lack of certain advances in technology, in concert with the requirement of locus standi in the courts of countries where the corporations are registered. Assertions of the lack of reliable evidence has led to a situation in which claimants are unable to establish their case on factual grounds. To date, this has allowed the defendants’ acts to go unpunished. 7 Thus, technology has come to be the necessary factor in establishing liability, through a process referred to below as “attribution science”, the legal recognition of which enables the damages caused by corporations to be quantified.
To understand what “climate change” means in this context, this article defines it as a long-term variation in the average weather and temperature of the world at large. In general parlance, “climate change” is understood to refer to the cumulative financial risks that the global community faces from the discharge of CO2 gas into the atmosphere. This concept has long been under discussion. 8 While the Earth’s climate is constantly changing, such change has, until recently, been a gradual process that should take place over many centuries. Instead, human impact on the atmosphere has resulted in a rapidity of climate change with hazardous consequences for the environment. In less than 100 years, the average temperature of the Earth has risen by nearly 1°C, 9 causing a rise in sea levels by an estimated 19 cm since 1900. Not only are entire islands at risk of being reclaimed by the sea but the number and severity of storms and droughts are also increasing. 10
Clearly, some are more immediately and significantly impacted than others. For the former, however, there are obstacles to bringing successful claims against corporations that are purportedly emitting GHGs. In particular, evidence must support three components of the case: that the plaintiff is suffering or has suffered from climate change (such harm must be tangible and not merely hypothetical); that the damages are linked to actions of the defendant (this does not necessarily mean proving a direct one-to-one relationship between GHG emissions by the company or business and the damages suffered by the claimant); and that scientific evidence demonstrates a relationship between GHG emissions and climate change which has caused significant harm
As to the latter, it must also demonstrate that the damage can be reduced if the defendant stops the activities in question. 11
On the national level, in addition to private causes of action in tort (i.e., actions alleging public nuisance, negligence, civil conspiracy, misrepresentation and improper trade practices), there are normally also potentially public law causes of action in administrative law (merit-based judicial reviews and civil enforcement proceedings). Actions regarding the violation of constitutional rights have been heard domestically and in a range of international tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea and some regional human rights courts. 12
Although private actions in tort law differ from country to country, certain general principles arise in climate-change-related tort lawsuits regardless of the jurisdiction. These include the following: questions of “standing” (criteria that determine whether a claimant may bring a lawsuit in a particular court or jurisdiction); determination of the kinds of injuries that can be recognised; the question of whether the lawsuit can address the prevention of future harm and, if so, how imminent must the risk be; the role of “causation” (the need to establish a chain leading from the defendant to the alleged injury); justiciability (the court’s ability to decide the issue); and whether there is preemption that prevents the lawsuit and/or refers to a different forum for settlement.
Clearly, the main issue is locus standi, that is, the plaintiffs’ ability to demonstrate a connection to and harm from the violation of law or other challenged action that is sufficient to support their participation in the case and to establish liability in climate-based negligence- or nuisance-based litigation.
As the technology has expanded to include studies of the geological and oceanic impact from global warming, there are plausible reasons that the scientific data of attribution should be an important part of litigation. The presentation to the courts of data and scientific knowledge as corroboration is crucial for any legal claim to succeed and for there to be more regulation of industry. In this connection, there are numerous studies ascribing liability as a ratio of an entity’s emissions of CO2 gas into the earth’s atmosphere.
Locus Standi in Litigation
Climate change as a result of GHG emissions can be distinguished from other tort risks of damage caused by the actions of industries or corporate entities, because the former is effectively a perpetual hazard, unless and until meaningful action to mitigate emissions can be enforced. A number of recent cases have been directed at these concerns. The fossil fuel industry and use of its products have been, directly or indirectly, responsible for the majority of historic, current and future GHG emissions.
GHG emissions have been the most tangible evidence of the impact of these industries on communities who live in rural areas, whose inhabitants are among the most impacted by climate change. The aftermath of Hurricane Katrina (which engulfed the American coast) led to an evaluation of the extent of the effect that CO2 emissions had on the storm, serving as a basis for litigation. Litigants in the 2012 case of Comer v. Murphy Oil USA, Inc. 13 claimed that electric utilities, as well as coal, chemical and oil companies, were responsible for the increased ferocity of the storm, essentially because of the climate-change impact of the defendants’ GHG emissions. As has been noted in other articles:
Prior to striking the Mississippi Gulf Coast, Hurricane Katrina had developed into a cyclonic storm of unprecedented strength and destruction, fueled and intensified by the warm waters and warm environmental conditions present in the Atlantic Ocean, Caribbean Sea, and the Gulf of Mexico. These high sea surface temperatures, which were a direct and proximate result of the defendants’ green house gas emissions, increased the intensity and magnitude of Hurricane Katrina. 14
The Court dismissed the case, holding that the injuries plaintiffs alleged (damage incurred during the storm) were not “fairly traceable to the defendants’ conduct”, and thus, that the “plaintiffs [did] not have standing to pursue this lawsuit”. 15 With regard to the GHG-emissions-related claims, it also held that there were “no judicially discoverable and manageable standards for resolving the issues presented” and that the plaintiffs’ claim offered would have required it to rule on non-justiciable political questions entrusted by the US Congress to review under the US Environment Protection Act. 16
An appeal of an earlier ruling in the same case also addresses the allocation issue. 17 In the complaint, plaintiffs had asserted that, as a result of the defendants’ activities, the plaintiffs’ insurance premiums for their coastal Mississippi properties had risen. This aspect of the case for damages was not successful because it could not be verified as to which companies were responsible for particular emissions. 18 It has been argued that the court’s argument was premised on the concern that climate change liability might contribute to further increases in insurance premiums, and could cause this kind of litigation to become a burgeoning and attractive option, as had previously happened in the context of consumer protection cases. 19 It might, for example, lead to the application of a product liability standard for anyone that sells or uses fossil fuels, including liability for any third-party side effects. 20 Insurance companies could again become a next generation of plaintiffs, when they begin seeking large-scale subrogation for monies paid to insured victims of climate change disasters. 21
In the same vein, claims for negligently caused damage to the plaintiff from GHG emissions have been compared to the claims underlying the tobacco litigation, in which cumulative damages claims could reach billions of dollars. 22 The 2013 World Economic Forum report noted the parallel:
[F]ive decades ago, the US tobacco industry would not have suspected that in 1997 it would agree to pay US$ 368 billion in health-related damages. For some businesses, investing in climate change mitigation now could be as much about enterprise risk management as about mitigating a global risk. 23
Risk mitigation could include compulsory environmental assessment before granting the multinational corporations the rights and licences to excavate for natural gas and mineral resources. The framework of environmental safety company laws could also be amended to hold corporations accountable through public listing processes and requirements that they report regularly to regulators and shareholders about these risks in the context of their earnings. 24
Under most countries’ domestic laws, company directors have a duty to disclose risk-related information and may incur liability to shareholders, lenders, investors, insurers or, in some cases, independent third parties if they fail to do so. 25
The US has been the jurisdiction in which many of the cases discussed in this report have been filed, including most of the cases mentioned above. As shown below, a European case has recently also added to worldwide jurisprudence on this point.
Allegations of Foreign Actions: Aguinda v. Texaco
For non-US parties filing claims in the US, locus standi in tort-based claims is governed by the Alien Tort Claims Act (ATCA), 26 but claims alleging infringement of environmental rights, rather than human rights, under the legislation have been dismissed. 27 In 1993, in Aguinda v. Texaco, 28 a group of Ecuadorian Indians sued Texaco, Inc. (an oil company), alleging that it had caused severe environmental damage to their homeland through improper exploration and waste disposal. Nine years and numerous proceedings later, the Second Circuit Court of Appeals upheld a lower court dismissal, agreeing that the US was not the proper forum for litigation. That case was re-litigated in Ecuador in 2003. Standing requirements have not barred climate litigation of US citizens against governmental defendants, but they have been successfully used against private entities and organisations. 29 The argument against allowing foreign plaintiffs’ claims against US companies and entities is that it is onerous for them to be held to answer on climate claims that allege evidence of causation (which is, as noted above, necessary in order to establish that a remediable breach has occurred) due to the legal remoteness of the defendant’s action from the claimed climate damages.
Legislative Displacement: Native Village of Kivalina v. ExxonMobil Corp
The US courts (established under Article III of the US Constitution 30 ) have specified that a plaintiff must have standing (i.e., locus standi) to bring a tort law suit in a US court. To establish standing, a plaintiff must demonstrate the factors described above, stated in the US as follows: (1) injury-in-fact; (2) causation; and (3) redressability. While straightforward in appearance, this three-part requirement has been widely criticised for being “uncertain in application and unpredictable in result”. 31 In particular, it is sometimes said to not distinguish between the cause-in-fact and the proximate cause of the harm or damage the plaintiff alleges.
“Displacement” is a long-established principle limiting the power of the courts to establish their own rules. The displacement doctrine can be described as follows: US courts cannot apply pre-existing judicial precedent (common law) to legal issues/points on which other branches of government (e.g., the US Congress or the properly empowered administrative agency) have specifically regulated. In situations where a statute “speaks directly to the question at issue”, pre-existing federal common law (e.g., the application of public nuisance concepts to that question, etc.) is displaced. The most relevant federal statute in climate change litigation is the Clean Air Act 1970 and it has been held to displace pre-existing common-law nuisance principles relating to air emissions, including public nuisance principles as applied to GHG emissions and their impact on climate. This argument poses the greatest barrier for Americans challenging the negligence of multinational firms that emit GHGs inside in the US.
In Native Village of Kivalina v. ExxonMobil Corp, 32 individuals belonging to the Inuit community filed a lawsuit 33 against several oil, coal and power companies. These plaintiffs sought an order holding the defendants liable for a substantial contribution to global warming and for damages amounting to US$400 million. The basis of the action was that the defendants produced a large quantity of GHG emissions, and that GHG emissions had a significant impact on the melting ice in their environment. They alleged that effects of climate change meant that their village was now on the brink of destruction, due to a significant decrease in protective ice and corresponding increase in flooding. The sharp rise in the severity of storms meant that the village would have to relocate within six years. As such, the plaintiffs claim for monetary damages was intended to fund this relocation.
The defendants’ main contention revolved around the concept of standing. They asserted that the plaintiffs had failed to meet the burden of establishing standing - specifically, they had failed to allege that specific effects of climate change on the village were linked to the defendants’ specific actions. On this basis, they argued that the plaintiffs did not have standing to sue, and sought a motion to dismiss the suit for lack of standing, which was granted by the district court in which the case had been filed. 34
Kivalina appealed the decision to the Ninth Circuit Court of Appeals, which upheld the lower court’s decision on the basis of federal statutory displacement. 35 In doing so, it did not discuss all components of standing, focusing its reasoning on the relationship between federal law (the Clean Air Act) and the common-law tort of public nuisance, and concluding that the former displaced the latter in this case. As to the latter, the court noted that “[a] successful public nuisance claim generally requires proof that a defendant’s activity unreasonably interfered with the use or enjoyment of a public right and thereby caused the public-at-large substantial and widespread harm”. 36
The Kivalina judgment had relied on the earlier ruling in American Electric Power Co v. Connecticut, 37 in which the Court focused on justiciability, holding that the plaintiffs did not have a justiciable claim, owing to the displacement of federal common law by the Clean Air Act. 38 The concurring opinion provided by Judge Philip M. Pro, 39 who joined in the decision to uphold the dismissal, wrote a separate opinion that examined the broader reaches of the concept of standing, adding the following descriptions of the plaintiff’s claim, in support of the non-justiciability holding:
By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries. 40
The Kivalina case illustrates the main hurdle faced by claimants when seeking to sue large corporations for climate-related damages: GHGs are continuously released into the atmosphere, with no attribution or other differentiation between them possible, making it difficult for claimants to hold corporations that are large emitters of CO2 to account.
Redress for Foreign Litigants: Luciano Lliuya v. RWE AG
Despite the difficulty of litigating in the US (where most multinationals are registered) due to the locus standi challenges described above, the potential exists for such litigation in the courts of other nations in the northern hemisphere (especially European countries) where the corporations are based, where standing requirements are sometimes not as strict and there is less of a distinction between private law and public law.
In Germany, for example, there are no specific requirements as to locus standi except those which distinguish civil from criminal law.
41
For civil law actions in tort, there are two requirements - Prozessführungsbefugnis and Rechtsschutzbedürfnis: Prozessführungsbefugnis is satisfied when the plaintiff is entitled to pursue the claim. In general, only a person whose own individual rights are at stake has Prozessführungsbefugnis. Rechtsschutzbedürfnis is satisfied when the claimant has a legitimate interest in the adjudication. Such interest is lacking if the adjudication does not impact on the rights of the claimant.
42
In the case of Luciano Lliuya v. RWE AG, 43 the regional court in Essen considered the locus standi of a Peruvian farmer Saúl Luciano Lliuya who filed a private action in 2015 against RWE AG, a German energy company based in Essen in the industrial Ruhr valley, seeking redress for the impact of RWE’s GHG emissions, which he alleged had caused damage to his farmland. 44 The action is the first in Europe in which a multinational company was sued for nuisance on the basis of GHG emissions. In this case, the plaintiff’s claim relates to the impact of those GHG emissions in Huaraz, a rural enclave in Peru with a population of 120,000.
The plaintiff invoked paragraph 1004 of the German Civil Code and claimed that the increase in atmospheric GHGs had melted the glaciers, with the result that Lake Palcacocha, a glacial lake located above Huaraz, which had experienced a substantial volumetric increase since 1975, had come to present an acute threat to his farm. The legal claim rested on the emissions responsible for climate change as a public nuisance. Luciano Lliuya sought equitable relief and compensation of the costs involved in the establishment of flood fortifications. The case claimed that the homes and lives of 50,000 people were in jeopardy and measures needed to be taken to reduce the risk of flooding. The claimants sought € 17,000 towards the cost of draining the lake and installing a warning system alerting nearby towns if a flood was imminent. This amounted to 0.47 percent of the total cost to install the protective measures, correlating to the claimant’s estimate of RWE’s annual contribution to global GHG emissions.
Among the documents included in Luciano Lliuya’s affidavit was the IPCC report discussing tropical glaciers located in the region of Latin America - specifically those in Peru - and detailing the heightened risk of glacial retreat, due to the increase in global temperature. 45 The report predicted that temperatures in Central America will increase by 1.6°C this century. 46 The consequence of melting glaciers leads to an increased risk of flooding to nearby towns and villages, a hazard which has now become a reality for Luciano Lliuya. He claimed that Lake Palcacocha was at a heightened risk of bursting its banks - potentially causing a flood that would reach the nearby city of Huaraz in just over one hour. 47
The claimant’s case relied upon the 2013 report by Heede, in which RWE was placed among the top 90 corporations fuelling climate change. 48 According to this report, RWE’s contribution to the cumulative total of GHG emissions stood at 0.47 percent making it Europe’s largest emitter. 49
In response, RWE alleged that Luciano Lliuya had no legal basis to bring such an action because the complainant had not established any definitive link tying RWE’s GHG emissions to the risk of flooding in Peru. 50 The company relied on the ruling in Native Village of Kivalina v. ExxonMobil Corp, described above, in calling on the court to deny liability.
The Court dismissed Luciano Lliuya’s claim for declaratory and injunctive relief, as well as his request for damages, stating that it could not provide Lliuya with effective redress (Lliuya’s situation would not change even if RWE ceased emitting), because no “linear causal chain” could be discerned amid the complex components of the particular GHG emissions and climate change impacts. 51 Even though the complainant could not establish legal causation, his case provided one important success in the eyes of other climate litigants - the German court resolved the question of locus standi by holding that the litigant, who was from a different jurisdiction from the defendant company, had standing to bring an action regarding harms incurred in that other jurisdiction.
Luciano Lliuya has appealed the dismissal of his substantive claim; however, his appeal has not affected the final decision on standing - a ruling that could signal a paradigm shift in the ability of litigants to challenge corporations through the courts. In time, its precedent could find all industrial polluters having to pay their share of the cost in repairing the damage caused by climate change. This case is a crucial stepping stone from the standing perspective, and grants litigants the right to invoke the civil law in the country of the perpetrator company. 52
Continuing Litigation Challenges and Impacts
While progress is being made, obstacles remain with regard to convincing the courts to allow non-nationals to bring claims for the impacts of GHG emissions on the environment. These are particularly difficult for claimants from developing countries. They are similar and raise similar challenges to those that arise when claimants seek judicial remedies related to other forms of destruction such as river pollution or deforestation, where establishment of the identity of those responsible can also be challenging. In both, the claimant’s inability to definitively establish a concrete link between contamination and the alleged industrial misuse is the ultimate problem; 53 however, for litigants from impacted countries, locus standi is the first hurdle to surmount. In the US, as noted above, standing is prohibited by the ATCA. In civil-law countries, challenging procedures define the courts’ rules as to when a case can be accepted.
In essence, the climate actions described above are based on the claim that the defendants are responsible for increasing the levels of “unburnable carbon” (i.e., atmospheric carbon in excess of the “finite amount of emissions that can be released in the next 50 years” if the planetary temperature is to stabilise), 54 thereby taking a number of different types of risk: operational risk, insurance risk, regulatory risk, shareholder risk, capital risk, competitive risk and litigation risk. 55 An international report concluded that capital markets have financed future fossil-fuel development based on a false assumption that the corporate sector industries have, in effect, asked investors to finance the amount that can actually be burnt. This, in turn, poses a potentially “large and unappreciated risk” for the capital markets. 56 The report called on “the regulators charged with ensuring financial stability, tackling systemic risks and promoting long-term investment to produce a common understanding of the consequences of unburnable carbon”. 57
Litigants from developing countries should not be discouraged by the challenge of satisfying the locus standi requirements in order to proceed in the courts. Whatever the outcome, these lawsuits bring the issue of damage (to homes, livelihoods and the environment) caused by excessive GHG emissions into the public domain.
Scholarship by supporters of climate-change litigation have argued that it enhances policy-making. For example, Hunter has argued that regardless of the outcome of climate-change lawsuits, merely filing them has significant implications for policy-making in terms of framing the issue, generating information, and agenda-setting. 58 Plaintiffs’ claims have framed climate change in terms of “dramatic narratives linking greenhouse-gas emitters to environmental changes that have imposed specific harms on identifiable victims”. 59 This definition implies that “climate change is more tangible and more immediate, which significantly changes the tone of the climate debate”. 60
Hunter goes on to note that “a focus on victims increases the saliency of questions about compensation and adaptation to climate change, and the urgency of mitigating climate change to avoid even worse impacts in the future. This builds momentum at both the national and international levels for stronger climate-policy making”. 61 The use of scientific information as evidence for legal claims “adds legitimacy and prestige” to the science, making it more prominent in “public discourse”. 62
Litigation may also influence “the development of climate science” by providing “an incentive to some scientists to prioritize certain questions that they might otherwise ignore”. 63 As Hunter also asserts, “Climate change litigation empowers civil society to shape the agenda in ways not allowed in formal negotiations”. 64 Litigation also “shines the spotlight” on climate change and “force[s] ... governments to address the impacts of climate change ... .”. 65
“Even when domestic actions fail”, he concludes, “they may indirectly build pressure for legislative and policy action ... win or lose, climate litigation strategies have harkened a new era of climate politics”. 66 Hunter suggests that information linking polluters to tangible harms and identifiable victims have cultural resonance and the issue is the extent to which litigation as opposed to scientific debate or activism will be responsible for this perspective among the public and policy-makers.
Hunter and Engel each defend a broad spectrum of climate-change litigation efforts mainly in the anticipation that it will lead to group claims from affected parties that will, in turn, lead to the establishment of self regulation. 67 There is a broad consensus that, although tort litigation might enhance policy-making, the conditions may not always exist to favour the use of litigation as a regulatory strategy. 68 It is thus debatable whether litigation is the only way to propel companies into adopting new policies with respect to the environment and industrial safety when mining or extracting coal, gas or fossil fuels in third-world countries.
A more focused approach is clearly needed - one that deals with climate change as an international problem and this requires the consideration of processes that provide locus standi, enabling claimants to litigate against companies responsible for GHG emissions. It can be achieved in common-law countries by enacting statutes that establish, for example, limitation periods, joint and several liability, and corporate structures relevant to such cases. Such enactments can also promulgate rules that create, modify or limit the applicable rules of civil liability. 69
Judicial Activism and Locus Standi
A number of judicial efforts can also be important in this context. The courts can align themselves by recognising the human rights dimensions of climate change, an issue which received important endorsement in the Paris Agreement. This would represent a significant milestone for climate change litigation (in developing countries and in climate-based cases around the world). In the past two decades, climate cases have demonstrated an increasing trend for petitioners to employ human rights claims. There is a growing receptivity of courts to litigation couched in human rights principles. This could serve as a model or inspiration for rights-based climate litigation, leading to decisions that could enhance the climate litigants’ prospects of satisfying locus standi in actions against the multinational companies in their domestic courts. Litigation to prevent GHG emissions could be based on a human rights argument that can be merged with the concept of sustainable development.
Recognition of International Instruments
Such judicial action can take the form of recognition of international developments. Over the years, the human rights discourse has moved from the protection of political rights to protecting environmental rights and balancing rights with respect to bio- and geo-engineering technologies. This was first acknowledged in the 1987 Brundtland Report, Our Common Future, and continues strongly in the 2017 Hague Declaration on Planetary Security, both of which recognise the human right to an adequate environment. 70 In 2007, the UN Human Rights Council passed a resolution recognising that climate change affects human rights, and the UN Development Programme concluded that climate change is “a systematic violation of the human rights of the world’s poor and future generations, and a step back from universal values”. 71 These pronouncements were augmented by the 2010 joint statement of the UN General Assembly and the Human Rights Council recognising the human right to water and sanitation, which is seen as closely linked to climate change as the latter influences the geographical availability of water. The human rights to life, health, water, development and the environment are impacted by climate change and need to be protected as fundamental rights. 72
Climate and Internationally Recognised Human Rights: Urgenda v. Netherlands
The human rights dimension was recognised in Urgenda Foundation v. The State of the Netherlands, 73 a case brought by sustainability foundation Urgenda (a Netherlands-based non-profit organisation whose name merges “Urgent Agenda”), with almost 900 Dutch citizens as co-plaintiffs. The standing requirement discussed in this article was not at issue, given the domestic status of all parties and the fact that the defendant was the State. Locus standi was met pursuant to Article 305a of the Dutch Civil Code.
In the first instance, the district court ordered the Dutch government to reduce GHG emissions by 2020. Specifically, it ordered that the levels be reduced by at least 25 percent compared to 1990 levels. This is the minimum level under the 25–40 percent target set by the IPCC. The Dutch government appealed, arguing that the policy decision on how to reduce GHG emissions is a “political question” that should be addressed by the government, not the judiciary. 74 It also argued that the Dutch emissions, in absolute terms, are limited, that the Netherlands cannot solve the global issue of climate change alone, and pointed out that there are various policy trajectories to reduce emissions, so that a reduction of 25–40 percent by 2020 is not absolutely necessary. 75
Urgenda contended that, even though climate change is a global problem, the Netherlands has benefited since the industrial revolution from the use of fossil fuels and has one of the highest national levels of carbon emissions per capita in the world. It invoked the country’s responsibilities under the UN Framework Convention on Climate Change and also alleged a breach of its duty of care under Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), which the Strasbourg Court has affirmed applies to environmental matters. 76
The Dutch appeals court concluded that when the State knows of a real and imminent danger, it is obliged to take preventive measures. 77 The court ruled that there is a real threat of hazardous climate change, which puts citizens at a severe risk of loss of life and/or disruption of family life, and that the State has a duty under the ECHR to protect against this risk. 78 The court rejected each of the State’s claims with respect to the separation of powers argument; it argued that the initial decision had not been an attempt to usurp executive power, but had merely applied the ECHR provisions, which are part of the Dutch legal system, and which take precedence when Dutch law is in conflict with international human rights law. 79
The Urgenda judgment sets an important precedent in climate litigation since, for the first time, the tort of negligence was successfully pleaded to hold a State liable for failing to adequately put in place prevention and mitigation policies to reverse climate change. The defendants were able to successfully argue that the need to enact more proactive legal obligations extends beyond the duties derived from international treaties and includes independent legal obligations toward the citizens. The case opens the way for the enforcement of GHG accounting, emission-reduction and adaptation measures in environmental agencies and local authorities, and their inclusion in planning-permit applications and environmental impact assessment procedures. 80
The Urgenda ruling may well be extended not only to other States but also to private parties. The perceived scope of climate-related responsibilities is broadened by the judges ascribing constitutional provisions in support of the claim that the government had breached the Dutch Civil Code. In this manner it avoided the political question doctrine and potentially made it possible for private litigants to bring claims for damages based on the government’s breach of a duty of care. The case has fused the legal and factual causation and made it possible for a claim to be made in private law damages or declaratory relief that is based on duty of care.
Event Attribution to Assist Litigants
In recent years, pioneering research has sought to address the difficulty of assigning blame to confer liability for carbon gas emissions to the responsible corporations. It has coined and defined a science known as “event attribution”, through which it is possible to determine the extent to which human-caused climate change has affected the characteristics of an extreme weather event. 81 This enables determination of the precise extent to which those responsible for GHG emissions impact harms caused in countries in the developing world. There are many research-based studies of this type that serve as a basis for global litigation, and which are of importance and assistance in bringing tort-based claims.
The 2013 event attribution study by Heede, supported by the Friends of the Earth, provided data that formed a clear basis for pointing to an industrial entity’s contribution to climate change. The ground-breaking report detailed how 90 companies could be held primarily accountable for the climate crisis that afflicts the environment. 82 The corporations range from investor-owned petro-chemical companies, such as Chevron, ExxonMobil and BP, to State-owned and government-run firms. Collectively, these corporations are responsible for contributing nearly two-thirds of the GHG emissions released into the Earth’s atmosphere since 1854. 83
In order to reach this conclusion, Heede studied the annual production reports of the corporations before calculating the carbon content of each individual entity’s annual production of coal, oil and natural gas, on the basis of internationally established guidelines on carbon factors as a benchmark for assessing the individual responsibility of each corporation. 84 Chevron was found to be the lead among investor-owned companies, as its products were deemed to have caused 3.5 percent of GHG emissions to date, with ExxonMobil not far behind at 3.2 percent and in third place, BP, at 2.5 percent. 85 Altogether, the study’s 90 companies and their decision-makers are responsible for more than half of the “cumulative worldwide emissions of industrial CO2 and methane between 1751 and 2010”. The top 20 corporations identified in the study are collectively responsible for 29.5 percent of those emissions. 86
The study undertook specific research on ExxonMobil’s climate footprint since 1882 and translated it into data explaining how that company’s individual emissions contributed to climate change. As one of the biggest corporations within the global oil industry, ExxonMobil produces an average of 4.5 million barrels of oil every day. 87 In the evaluation, the carbon potential of the global production of this one company alone was stated to be responsible for the release of almost double the carbon and methane emissions of the entire UK in 2002. 88 The study claimed that emissions from the use of ExxonMobil’s product share contributed up to 3.7 percent of global temperature change since 1882, and 3.6 percent of the total sea-level rise. 89 Even if all of such emissions were to terminate, it noted that the past emissions would still continue to have an effect on climate change right up until the year 2200. 90
Thus, Heede’s report shows that it is now possible to identify, and to provide solid evidence establishing, a scientific link between specific emissions and climate change. Other published studies have established with accuracy the extent of other emissions, and their processes may lead to the determination of liability of companies involved in carbon gas pollution. For many legal systems, having this ability to foresee damage is a key requirement in event attribution and breach of a duty of care, and with shifts in climate politics and the absence of enforceable commitments from government, the courts can contribute an increasing role in apportioning responsibility for loss and damage resulting from climate change.
A weather attribution study conducted in Australia in 2017 identified the elements that produced the unprecedented heatwave in that year (the hottest summer on record in New South Wales). 91 Temperature records across the central and eastern parts of Australia were broken, leading the Australian Bureau of Meteorology to call for a Special Climate Statement on the exceptional heat. The World Weather Attribution (WWA) website team, with colleagues from the University of New South Wales, conducted a rapid attribution analysis to see how climate change factored into the exceptionally warm summer (December-February) of 2016-2017, producing a variety of articles and reports. 92
The WWA team used two different methods to reach this conclusion. Firstly, it drew on a previously published analysis using coupled model simulations, to show that average summer temperatures like those seen during 2016-2017 are at least 50 times more likely now than in the past. Secondly, the team performed an analysis based on the observational series from the Australian Climate Observations Reference Network - Surface Air Temperature (ACORN-SAT) dataset. This approach is similar to previous analyses used for recording heat in the Arctic in 2016 and Central England in 2014. Comparing the likelihood of this record in the climate of today compared with the climate of around 1910 (before global warming began to have a big impact on our climate system and when reliable observations are available), the team again found at least a 50-fold increase in the likelihood of this hot summer.
The study concluded that “in the past, a summer as hot as 2016-17 was a roughly 1-in-500-year event”; and that “[t]oday, climate change has increased the odds to roughly 1-in-50 years - a tenfold increase in frequency. In the future, a summer as hot as this past summer in New South Wales is likely to happen roughly once every five years”. The study concluded that “if greenhouse gas emissions are not dramatically reduced, intense summer heat will become the norm in the future”. 93
Attribution studies like this provide more scope for litigation as they can be used as expert testimony in tort claims in principle. In another example, the “ClientEarth” research team, Marjanac et al., state that “deploying the science of extreme weather attribution in the courts will only galvanise future climate change litigation”. 94 Their report notes that “courts around the world are increasingly being asked to consider questions of liability arising from a relationship between the loss and damage caused by an extreme weather event and climate change”. These efforts create an increased likelihood that environmental damage relief will be sought in the courts because “the information that attribution studies provide about the increased characteristics of extreme weather events - such as heat waves, droughts or storms - is crucial. Having the ability to foresee damage is a key requirement in establishing a duty of care in many legal systems”. Their acceptance as expert evidence will “galvanise future climate change litigation and cases are likely to involve local government agencies, professionals or companies that own or manage public and private infrastructure and have a duty of care to manage climate-related risks”. 95
This view is echoed by those who believe that event attribution will increase the accountability of those corporations responsible for GHG emissions. Wade argues as follows:
[T]he strength of attribution science is based on three “pillars”: the quality of observed records; the ability of models to simulate climate events; and the understanding of physical processes that drive climate events and how these are being affected by climate change. To date, confidence in studies of extreme heat and cold episodes has been the strongest - though scientists are increasingly able to differentiate between natural and human-caused influences on rainfall extremes and storms as well. 96
There still remain, however, significant uncertainties. For example, in an inherently chaotic weather system, it is technically impossible to state that a specific extreme event would “never” have occurred without human influence. Therefore, scientists often reject simplistic statements such as “this event was caused by climate change” and instead express findings in terms of changing risk.
From the perspective of climate change litigation, the development of event attribution focuses on the fact that (as quoted earlier) “courts around the world are increasingly being asked to consider questions of liability arising from a relationship between the loss and damage caused by an extreme weather event and climate change. From a legal view, the information that attribution studies provide about the increased characteristics of extreme weather events - such as heat waves, droughts or storms - is crucial. Having the ability to foresee damage is a key requirement in establishing a duty of care in many legal systems” and this breakthrough will galvanise future climate change litigation and, as noted above, cases “are likely to involve local government agencies, professionals or companies that own or manage public and private infrastructure and have a duty of care to manage climate-related risks”.
This fusion of science and the law could bring about the initiation of action by both governments and businesses to mitigate GHG emissions, thereby helping to limit the extent of climate change in future. Attribution science may well provide crucial evidence that will help courts determine liability for climate-change-related harm. Such liability may emerge first, however, from traditional common-law negligence causes of action, applied to professionals and parties with specialist knowledge and/or duties, rather than from regulatory compliance actions. That the findings of event attribution studies are expressed as probabilities does not reduce their usefulness in law or liability. Common-law courts have shown flexibility in assessing harm resulting from negligence, where harm can be proven only through the use of probabilistic methods. 97
Conclusion
Development, climate change and litigation are closely related and they each impact the others both as cause and effect. Development and climate change affect all aspects of human life including health, agriculture, economy, trade, transportation and energy infrastructure, and therefore they need the intervention of the regulatory sector. This is why the legal framework is so important in providing the locus standi to litigants to bring their claims in the domestic courts against transnational companies who are responsible for climate change in the form of releasing greenhouse gases that contaminate the environment.
The first issue related to climate change is that, in claiming negligence or nuisance, the plaintiff must show a breach of the duty of care. This requires establishment of causation and that the defendant’s actions have sufficient proximity to the damage that the harm was foreseeable. Not only must the damage caused be attributed to the defendant, however, but it must also be quantified. Only on this basis may the plaintiff succeed. Thus, the event attribution that is now possible through scientific calculation is a step forward for litigants pursuing their claims in the courts.
It is only possible to meet society’s needs in developing infrastructure and addressing the scarcity of resources (soil, water or the air) when these activities are done in the context of a clean environment and the protection of those who suffer from contamination. The link between human rights and climate change is not only a matter of enabling lawsuits by setting up complaints procedures, but implies the overall goal of GHG reduction. This implies the need for a grass-roots movement of human rights cases in multiple courts worldwide to bring about changes - to enable litigants to establish causality and to identify responsible parties.
There is a basis for lowering the threshold for locus standi, enabling litigants from developing countries to bring tort-based claims. This has received encouragement in the recent case of Luciano Lliuya v. RWE AG in Germany, brought by a foreign litigant for harms suffered in Peru. This development suggests the possibility that the courts will be more receptive, activist and conscious of human rights in these cases.
Footnotes
UNGA. 1988. Resolution 43/53 “Protection of global environment for future generations of mankind”.
Edenhofer, O., Pichs-Madruga, R., Sokona, Y., Farahani, E., Kadner, S., Seyboth, K., Adler, A., Baum, I., Brunner, S., Eickemeier, P., Kriemann, B., Savolainen, J., Schlömer, S., von Stechow, C., Zwickel, T. and Minx, J.C. (Eds). 2014. Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. IPCC; Cambridge and New York: Cambridge University Press.
Grossman, D.R. “Warming Up to Not-so-Radical Idea: Tort-based Climate Change Litigation”. Columbia Journal of International Law 28.
In 1975, the first article on “global warming” appeared in the journal Science. See Stefan. 2010. “Happy 35th birthday, global warming!” Real Climate, 28 July. Available at http://www.realclimate.org/index.php/archives/2010/07/happy-35th-birthday-global-warming/; and May, S. (Ed.) 2014. “What is Climate Change?” NASA Educational Technology Services, 14 May. Available at 
.
Baede, A.P.M. (Ed.) 2007. “Annex I Glossary”. In: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., Qin, D., Manning, M., Chen, Z., Marquis, M., Averyt, K.B., Tignor, M. and Miller, H.L. (Eds)]. Cambridge: Cambridge University Press.
Fauré, M.G. and Nollkaemper, A. 2007. “International Liability as an Instrument to Prevent and to Compensate for Climate Change”. Stanford Environmental Law Journal 26A: 123–179.
Preston, B.J. 2011. “Climate Change Litigation (Part 1)”. Carbon and Climate Law Review 5(1): 3–14.
Comer v. Murphy Oil USA, Inc. 42 ELR 20067 No. 1:11CV220 (S.D. Miss., 03/20/2012) (Guirola Jr., J.). This decision is available online at [See also, Comer v. Murphy Oil USA, Inc. 718 F.3d 460 (5
t
h Cir., 2013) (dismissal upheld on appeal); and see Freeman v. Grain Processing Corp. (Iowa Supreme Court – 2014) 848 N.W.2d 58, 2014 WL 2619409 (applying Comer decision). Ed.]
Supra, note 13, S.D. Miss. decision.
Ibid.
Ibid., 607 F.3d 1049 (5thCir. 2010).
Ibid.
The emitters may be able to spread costs to shareholders or consumers, thus serving the loss-spreading function. Zasloff, J. 2008. “The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change”. UCLA Law Review 55(6): 1827–1882, at 1861–63; and Penalver, E.M. 1998. “Acts of God or Toxic Torts? Applying Tort Principles to the Problem of Climate Change”. Natural Resources Journal 38: 563–601, at 591:
The cost-reducing goal of tort law indicates that courts should seek to hold liable those parties who are in the best position to make the price of products that lead to global climate change reflect their true cost (that is, to include the costs of accidents produced by global climate change within the prices of products whose manufacture and use contributes to the problem of climate change).
Dubats, E. 2012. “An Inconvenient Lie: Big Tobacco Was Put on Trial for Denying the Effects of Smoking; Is Climate Change Denial Off-Limits?” Northwestern Journal of Law & Social Policy 7: 510–537.
For global standards in corporate governance, see OECD. 2004. OECD Principles of Corporate Governance. Paris: OECD. Available at http://www.oecd.org/daf/ca/corporategovernanceprinciples/31557724.pdf. For sustainability reporting guidelines, see Global Reporting Initiative. 2011. Sustainability Reporting Guidelines, Version 3.1. Available at .
ClientEarth website. “Company transparency: an introduction.” [This article is no longer available online. Ed.]
The Alien Tort Act of 1789, 28 U.S.C.A. §1350.
Ibid. The Act grants jurisdiction to US Federal Courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States”. [This issue has been canvassed in a range of commentaries, see, e.g., Dhooge, L.J. 2006. “Lohengrin Revealed: The Implications of Sosa V. Alvarez-Machain for Human Rights Litigation Pursuant to the Alien Tort Claims Act”. Loyola of Los Angeles International and Comparative Law Review. Ed.]
Aguinda v. Texaco, Inc., 142 F Supp 2nd Ed 534 (2001).
“Standing likely will only be a barrier for non governmental petitioners in jurisdictions that are issuing such denials; pairing with governmental petitioners will help address the issue even in these places”. Peel, J. and Osofsky, H.M. 2015. Climate Change Litigation: Regulatory Pathways to Cleaner Energy, at 270–71. Cambridge University Press.
[Article III provides that only “cases and controversies” may be brought to the courts. Pursuant to this, US courts have established rules of procedure for determining what disagreements constitute “cases and controversies”. For torts, these rules require the three-pronged test described in text. Ed.]
Native Village of Kivalina v. ExxonMobil Corp. 696 F.3d 849 (9th Cir. 2012), cert. denied.
Ibid.
Supra, note 32, 663 F.Supp.2d 863 N.D. Cal. (2009) affirmed by Ninth Circuit.
Supra, note 32.
Ibid., at 855.
Connecticut v. American Electric Power Co., 406 F.2d 265, 274 (S.D.N.Y. 2005 [849 (9th Cir. 2012)]) at 11657.
This was a case concerning a claim seeking injunctive relief rather than damages per se. The Supreme Court ruled that the Clean Air Act displaced the federal common law in relation to an action for “curtailment of greenhouse gas emissions”, at 423. The Court did not rule on whether the Act also displaced state common law. Ibid., at 429. Accordingly, the court rejected the plaintiff’s request for an injunction, ruling that it was impossible to “strike a balance ‘between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern’ without an ‘initial policy decision’ by another branch of government”; it was revoked on other grounds, at least one lower court has rejected a climate claim by a non-governmental petitioner for failure to satisfy the causation portion of the standing requirement (although that case did not involve a claim for climate damages).
[Judge Pro is a district court judge for the U.S. District Court for the District of Nevada, who was sitting by designation. Ed.]
Supra, note 37, at 11675.
The notion of standing is a distinct procedural requirement in civil-law claims (e.g., pas d’intérêt, pas d’action). The prevailing opinion is that, absent a statutory rule, a combination of the Subjektionstheorie and the Subjektstheorie should be used. On this basis, a claim belongs to public law (as opposed to civil law) if one of the parties in the dispute is endowed with imperium and the dispute concerns a relationship where this party acts as holder of such imperium. The civil courts have jurisdiction to adjudicate compensation claims arising from acts of State (especially compensation for expropriation), as well as for damage claims arising from wrongdoing by State officials. See European Parliament Policy Department C: Citizens’ Rights and Constitutional Affairs. 2012. Standing up for your right(s) in Europe: A Comparative study on Legal Standing (Locus Standi) before the EU and Member States’ Courts. ANNEX VI - COUNTRY REPORTS PE 462.478, at 120.
Ibid., at 122.
Luciano Lliuya v. RWE AG Az. Case No. 2 O 285/15 (Landgericht Essen (Essen Regional Court)) (appeal recognised OLG Hamm, 2017).
I bid., at 1502.
Somos-Valenzuela, M.A., Chisolm, R.E., McKinney, D.C. and Rivas, D. 2014. “Inundation Modelling of a Potential Glacial Lake Outburst Flood in Huaraz, Peru”, at 39. University of Texas Libraries.
Urt. 15.12.2016, Az.: 2 O 285/15. 15.12.2016, Ref.: 2 O 285/15.
On 30 November 2017, the appeals court recognised the complaint as well-pled and admissible. The case will move forward into the evidentiary phase to determine (a) whether Sr. Luciano Lliuya’s home is threatened by flooding or a mudslide as a result of the recent increase in the volume of the glacial lake located nearby, and (b) how RWE’s greenhouse gas emissions contribute to that risk. The court will review expert opinion on RWE’s CO2 emissions, the contribution of those emissions to climate change, the resulting impact on the Palcaraju Glacier, and RWE’s contributory share of responsibility for causing the preceding effects.
Chambers argues that a climate lawsuit against a hypothetical “super emitter”, responsible for all or substantially all emissions of greenhouse gases, would likely be successful under ordinary common-law principles of liability, but concludes that the number of real-world emitters involved creates potentially unmanageable challenges for would-be litigants in the absence of judicial innovations. Chambers, L.C. 2012. Tort Law, Climate Change and Private Nuisance, at 17–21. Unpublished LL.B. thesis, University of Otago. Available at .
Burton, S. 2013. “Risky Business: The Threat of Climate Litigation to the Fossil Fuel Industry”. Draft paper, 18th Commonwealth Law Conference Panel: Contemporary Legal Topics, Cape Town, 14–18 April 2013.
Supra, note 54.
Ibid.
Ibid., at 4.
Ibid.
Ibid.
Ibid.
Ibid., at 6 and 7.
Ibid., at 15.
Ibid., at 13.
Ibid., at 17.
Ibid., see also Engel, K.H. 2007. “Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies”. University of Pennsylvania Law Review 155(6): 1563, at 1570–77 (arguing that the unpredictability of piecemeal environmental regulation leads industries to support comprehensive federal regulation that they otherwise might not).
“The various group claims in various sectors require different types of evidence that might be available to test claims about the effectiveness of climate-change litigation and identify conditions that are likely to favor its use as a policy tool. The framing of issues in terms of narratives with a high degree of cultural resonance enhances litigation’s capacity to influence policy making”. Lytton, T.D. 2009. “Using Tort Litigation to Enhance Regulatory Policy Making: Evaluating Climate-Change Litigation in Light of Lessons from Gun-Industry and Clergy-Sexual-Abuse Lawsuits”. Texas Law Review 86: 1837–1876.
In civil-law countries, liability regimes are entirely statutory in nature. Civil-law countries include much of continental Europe and their former colonies, where governments have enacted “civil codes” outlining the rules governing liability. In Germany, there are specific statutes outlining environmental liability rules. See Umwelthaftungsgesetz [Environmental Liability Act], 10 December 1990, Federal Law Gazette I, at 2634. Available at .
1987. Report of the World Commission on Environment and Development: Our Common Future. Transmitted to the General Assembly as an Annex to document A/42/427 - Development and International Co-operation: Environment. Available at http://www.un-documents.net/wced-ocf.htm; and 2017. “The Hague Declaration on Planetary Security”. Available at .
Human Rights Council Resolution 7/23. “Human rights and climate change”. Available at ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_7_23.pdf.
C/09/456689/HA ZA 13-1396 (24 June 2015).
Response at para. 30.
Ibid.
Ibid at paras 28-29.
Ibid at para. 43.
Ibid at para. 45.
Ibid at para. 69.
The first study of climate change based on event attribution was the European heatwave study in 2003. See Beniston, M. 2004. “The 2003 heat wave in Europe: A shape of things to come? An analysis based on Swiss climatological data and model simulations”. Geophysical Research Letters 31(2); Ravault, C., Isnard, H. and Ledrans, M. 2004. “Impact sanitaire de la vague de chaleur d’août 2003 en France. Bilan et perspectives. Octobre 2003” [in French]. Santé Publique France. Available at ; and Allen, M.R. 2003. “Liability for climate change”. Nature 421(6926): 891–892.
Supra, note 48.
Ibid.
Supra, note 48.
Ibid.
Ibid.
Ibid., at 13.
Ibid.
Ibid.
Ibid.
Marjanac, S., Patton, L. and Thornton, J. 2017. “Acts of God, human influence and litigation”. Nature Geoscience 10(9): 616–619.
Ibid.
The courts in the UK have accepted causation for civil cases relating to occupational exposure to toxic chemicals when the science has shown the risk of an event occurring has been increased by a 2:1 chance. This is known as the “doubling of the risk” test. See Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 AC 32, and Williams v. University of Birmingham [2011] EWCA Civ 1242. Similar tests have been adopted as part of litigation in the US. Carruth, R.S. and Goldstein, B.D. 2001. “Relative Risk Greater than Two in Proof of Causation in Toxic Tort Litigation”. Jurimetrics 41(2): 195–209, at 200 (finding that the relative risk of two is treated as a threshold in approximately half of judicial opinions that discussed the issue); see also, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1315 n.16 (11th Cir. 1999) (“The threshold for concluding that an agent more likely than not caused a disease is 2.0.”); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1403 (D. Or. 1996) (stating that plaintiffs must “demonstrate that exposure to breast implants more than doubled the risk” of alleged injuries); and In Re W.R. Grace & Co., 355 B.R. 462, 483 (Bankr. D. Del. 2006) (requiring proof of relative risk greater than two to support property damage claims based on unreasonable risks posed by asbestos-contaminated insulation products).