Greenhouse Gas Emissions,“Event Attribution” and Locus Standi in Foreign Courts

1 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);

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);

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.

2 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:

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:

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.

3 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

4 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.

5 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:

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

6 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.