Who pays for climate change?

Global warming and the human contribution to climate change is a contentious issue, currently taking centre stage in both the legal and political spheres. Though many of us have harmed the environment in some way throughout our lives, it is evident that some can take a larger portion of the blame for their acts. Moreover, whilst long-term collective effort is needed to remedy our climate’s circumstances, recent cases suggest more immediate financial compensation can be paid. In July 2019, State of Rhode Island v Chevron Corp et al provided hope for a small costal US state, with its officials challenging, and seeking reward for, the environmental damage committed by major oil and gas companies. In the article The Student Lawyer discusses this case and an analysis of how this ruling could impact the future of climate change litigation.

1. The facts:

In 2018, the Attorney General and Governor of US State Rhode Island filed a law suit against many major oil and gas companies for the damage they inflicted on the environment. They alleged that the 21 companies (including BP plc, Shell and Exxon Mobil Corp) played a large role in the rising sea levels that were destroying the state’s shorelines and rejected scientific findings that their work was causing greenhouse gas pollution. They also failed to adequately warn their customers that using fossil fuel products would have detrimental impact on the planet. The state officials, explaining that the companies “knowingly” contributed to climate change and its “catastrophic consequences”, announced their claim standing at the state’s coast, and noted that this area was at risk of becoming submerged in sea water after a powerful storm if the sea levels continued to rise. The state sued on the grounds that companies had created a ‘public nuisance’ and aimed to receive damages (financial compensation) to cover the future costs the state would have to pay as a result of climate change, for example moving residents away from flooded areas like the costal point mentioned above.

2. The US justice system:

The suit was originally filed in Rhode Island State, claiming that the companies had violated the state’s Environmental Rights Act, but the defendants proposed that the case had Federal jurisdiction.

For those unfamiliar with the US system, each state has its own mechanism of courts for domestic cases: trial, appeal and Supreme. Moreover, there are Federal Courts of the US government for cases involving Federal laws (those that apply to all states), for cases between citizens of different states, and for cases against the US, with these starting from trial (‘District’) courts and progressing to appeal (‘Circuit’) courts. At the top of the hierarchy is the US Supreme Court, hearing final appeals from both the state and the Federal court systems. Why is this important? The US system is significant as the location of a case’s trial could highly impact its outcome. Rhode Island State sued in domestic courts, but the defendants’ opposition took the case to the Federal courts, arguing that it was a Federal matter. From Rhode Island’s perspective, trial in domestic courts was favourable as states have more precedent (past case law) in similar areas, and thus were more likely to find manufacturers liable for damage caused by their products. A notable example of this is the 1998 defeat of the tobacco industry, when four large tobacco companies were ordered to pay $246 billion to states, covering future costs of treating those made ill from smoking. In contrast, the Federal courts are more likely to dismiss such cases.

3. The decision:

We join this case in July 2019 when, after the suit had made it to a US District Court, a judge ruled in favour of Rhode Island’s pursuit of compensation. The ruling did not order the companies to pay out, but remanded (sent back) the case to the Rhode Island state courts, allowing prosecutors to continue their claim for damages. The judge’s main deliberation was over:

• whether this case was best tried in a Federal or state court, and
• after found that there was no validity in the defendant’s claims that this was a Federal matter.

Stating that the defendants “understood” the environmental consequences of their “immense” greenhouse gas emissions, and that the use of renewable energy sources would have “saved a world of trouble”, the judge recognised Rhode Island’s need of assistance in paying the future costs of global warming’s impact. Only one week prior to this decision, a federal judge dismissed claims made by authorities in California, who claimed that oil and gas companies had violated California’s nuisance law and sought billions in compensation.  This contrasting outcome saw the judge reflect on the “positives” of using fossil fuels and stated that the reduction of these companies’ activity was a matter for the legislature and executive to handle.

4. The similar cases:

The Rhode Island ruling marks great progression in the effort to remedy our climate crimes, however, this is not the only case in which powerful institutions have been held to account. Both in the US and across the globe, citizens are using the courts to fight for environmental protection.

In the US, the 2007 case of Massachusetts v EPAsaw a number of states successfully call upon the Environmental Protection Agency (a government agency) to take a more active role, especially regarding the regulation of gas emissions from new motor vehicles (something that the states claimed the EPA should have been doing already under the US Clean Air Act). Another innovative challenge, filed in 2015 and still waiting for a decision, is Juliana v United States of America et al, in which a number of young people are challenging the US executive, adopting a new approach by claiming that the government’s encouragement and allowance of activities that harmed the environment was a breach to their rights to Life and Liberty.

Elsewhere, campaign groups championing the cause of climate protection have also taken their claims to court. A successful suit was filed in the Netherlands in 2015, by the campaign group ‘Urgenda’ which, along with hundreds of citizens, compelled the Dutch government to set a stronger national emissions target for 2020. Individuals are also standing up against climate change contributors, for example in Lliuya v RWE, a case starting in 2015 when Peruvian farmer Saúl Luciano Lliuya sued German electricity producers RWE. Worried about the risk of his hometown being flooded after a nearby glacier had lost a significant amount of ice in recent years, the farmer sought damages to cover the costs that he and local authorities would have to pay to establish flood protections. On appeal, the courts ruled in 2017 that this case as has merit and the parties await a final decision.

5. The stance of the UK:

Thus far, the UK has not witnessed a similar claim to that in Rhode Island, but that does not rule out the possibility. State officials announced that the oil and gas companies had created a public nuisance that need to be both compensated for and removed. In the UK, public nuisance is located mainly in the Common (case) Law, and is when the defendant performs an act that interferes with the life, health or comfort of the public, or impedes a common right of all citizens. A key 1957 case is Attorney General v PYA Quarries, where the claimants wanted to prevent a quarry from continuing to emit dust and making noise during its operations. The judges defined a public nuisance as one that interferes with the comfort of a ‘class of Her Majesty’s subjects’, and what constitutes a ‘class’, usually a group of citizens living in proximity, will depend on the facts of the case.

With groups such as ‘Extinction Rebellion’ demonstrating how UK citizens crave action from the government with regards to climate protection, and are willing to protest in order to raise awareness, it can be said that litigation against major UK companies with bad missions records is not off the table in domestic courts.

Some argue that humanity has benefitted from burning fossil fuels, such as the heating  in homes and building roads. Some argue that climate change is too big an issue to be defined as a public nuisance, with cases usually revolving around isolated public interferences – for example smoke affecting those in the locality of a quarry, as in the 1957 case above. Yet, it must also be argued that protecting our planet is a pressing matter that is occupying the legal and political world more than ever before. There need only be one successful suit against a major greenhouse gas emitter to set a precedent, which will allow compensation for climate crimes to be won more frequently in the future.

By Eliza Lidicott