In 2020, the courts will continue to be a player in climate change

Jan 8, 2020

In September 2009, Typhoon Ketsana dumped a foot and a half of rain on the Philippines in just 24 hours.

In the capital, Manila, muddy, sewage-filled floodwater trapped Veronica “Derek” Cabe’s family on the roof of their home.  

“My family huddled together on the rooftop of our two-story house as the floodwaters sped past. They could see bodies, animals and even a coffin. It was like a horror movie.”

Veronica “Derek” Cabe, environmental activist, Philippines

“My family huddled together on the rooftop of our two-story house as the floodwaters sped past,” said Cabe, an environmental activist. “They could see bodies, animals and even a coffin. It was like a horror movie.”

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Cabe got stuck a few miles away from her family. She was getting text message updates from them, but couldn’t reach them.    

“The fact that they were trapped in a life-and-death situation, and I had no idea how to help them was the worst nightmare that I’ve ever had,” Cabe told The World. 

Since that day, the Philippines has been slammed by storms again and again. In 2012, tropical storm Washi killed about 1,300 people. In 2013, Typhoon Haiyan killed 6,000 people.

These kinds of storms and other disasters are expected to grow more intense as the climate warms. The bushfires raging across Australia are an example of how damages from climate change are likely to grow in the future. 

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Cabe is among those looking for someone or something to hold accountable for the damage caused by these catastrophes.  

“What are we going to do, are we just going to count the dead bodies?” Cabe said. “There should be someone that should be accountable to this.”

Related: As US steps back on climate change, will EU and China take the lead?

In 2015, Cabe signed onto a petition that asked the Philippines Commission on Human Rights to do just that. The commission agreed to investigate whether big oil and gas companies could be held legally responsible for harm caused by climate change.  

And the case is not unique. Citizens, nonprofit organizations and governments around the world are increasingly turning to the courts in their search for accountability. 

“Litigation in the field of climate change has grown significantly in recent years.”

Alice Hill, Council on Foreign Relations

“Litigation in the field of climate change has grown significantly in recent years,” said Alice Hill, a former judge and climate change policy expert at the Council on Foreign Relations.

“And it’s anticipated that it will continue to grow on a number of fronts as we experience more impacts, and there’s greater anxiety about the very urgent need to cut emissions.”

Hill calls some of these climate change lawsuits “failure to adapt” cases. The plaintiffs are suing governments or businesses for not doing enough to protect people or their property from the impacts of climate change. 

Related: Indigenous youth take global stage in Madrid to voice climate change worries 

In Texas, the Army Corps of Engineers just fought and lost a case filed by homeowners claiming they didn’t do enough to prevent flooding during Hurricane Harvey.

“It’s those types of cases that will just be replicated across the nation,” Hill said, “because the damages are happening, and the courts are one of the most frequently sought-after places for people to get money.”   

The number of lawsuits against oil and gas companies is also on the rise.  

Several US cities and states are suing for damages, seeking money to protect themselves from the impacts of climate change — by building seawalls, for example.

Attorneys general in Massachusetts and the US Virgin Islands are also suing Exxon Mobil Corp. for misleading investors about climate change risk.  

New York lost a similar case in December, and so far, Hill said, none of these big cases against oil and gas companies have been successful. 

“We see in these large-scale cases the fossil fuel companies raising the issue that, ‘Look, everyone’s emitting carbon, and to point your finger at the fossil fuel companies isn’t really fair.’”

Alice Hill, Council on Foreign Relations

“We see in these large-scale cases the fossil fuel companies raising the issue that, ‘Look, everyone’s emitting carbon, and to point your finger at the fossil fuel companies isn’t really fair,’” Hill said. 

The science of climate attribution has advanced in the past few years, allowing scientists to estimate how much climate change contributed to the severity of an individual hurricane or drought. 

But so far, litigants haven’t been able to successfully prove that emissions from a specific company caused damages from a particular weather event. It’s a linkage, Hill said, that is typically required in many tort cases.

Geographic expansion expected to continue in 2020 

Climate change lawsuits began in the litigious United States in the late 1990s, and for years remained largely a US phenomenon. 

That started to change after 2015 when a Dutch court ruled that the government had to cut emissions to protect the human rights of its citizens. 

“A number of other countries and litigants started seeing how litigation could be used strategically against governments and against companies,” said Joana Setzer, a climate litigation expert at the London School of Economics and Political Science. That included cases in Belgium, Germany, Luxembourg and Chile.  

Setzer predicts the trend is likely to continue in 2020, especially in developing countries. 

“I expect to see more cases being brought in countries where either we haven’t seen any case of strategic climate litigation or where there’s been one or two,” Setzer said. 

Some of those cases might come in the Philippines, where, in December, the head of the Commission on Human Rights announced on the sidelines of a UN climate conference that the body had decided in favor of petitioners like Cabe looking to hold oil and gas companies legally responsible for future harm caused by climate change. 

The full decision, expected to be released in early 2020, won’t be legally binding. But the activists behind the petition hope it lays the groundwork for future court cases.

Still, even those behind these climate change cases recognize that the courts might not be the best place to fight the battle against rising carbon emissions.

“Courts can’t make climate policies. Courts are obviously not the best intuition to deal with these issues.”

Dennis van Berkel, lawmaker on landmark Dutch case 

“Courts can’t make climate policies. Courts are obviously not the best intuition to deal with these issues,” said Dennis van Berkel, one of the lawmakers who worked on the landmark Dutch case that inspired climate lawsuits around the world. 

“What courts can do is they can look at the facts and they can say, ‘Well, here the government really crossed the line,’ and what we really want is for governments not to cross the line, and to start acting in the interest of the people.”

Van Berkel and others hope that the threat of lawsuits will at least nudge them in that direction.   

Reuters contributed to this report. 


From The World ©2019