The new type of litigation that links climate and rights is emerging.
In the US the number of lawsuits aimed at holding oil companies responsible for the impacts of climate change is also on the rise. Still the climate action aimed at transforming responsibility into the liabilities does not enjoy a great support of the courts.
On July 19, 2018 the US District Court Southern District of New York dismissed the claim of the City of New York against the oil companies BP P.L.C. (“BP”), Chevron, ConocoPhillips, Exxon, and Royal Dutch Shell.
The City of New York alleged that these oil companies “have contributed to the temperature increases and global-warming-induced sea-level rise affecting New York City”.through the production and sale of fossil fuel products.
After Hurricane Sandy, the second-worst storm in U.S. history, the City had to undertake the expensive proactive measures aimed at protecting itself and its residents from the risks and impacts of climate change and increase climate resiliency. The costs of the proactive measures exceeded 20 bln dollars. The estimated cost of damage to the City was $19 billion and 50-60 bln dollars in the country. The City brought the suit to “shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat” and asked for a compensation of the damages “for past and future costs incurred by the City to protect its infrastructure and property, and to protect the public health, safety, and property of its residents from the impacts of climate change”.
The City alleged that GHG molecules “cannot be traced to their source, and greenhouse gases quickly diffuse and comingle in the atmosphere. However, because of their rapid and widespread global dispersal, greenhouse gas emissions from each of Defendants’ fossil fuel products are present in the atmosphere in New York State.” Moreover, the ongoing conduct of the oil companies continues “to exacerbate global warming and cause recurring injuries to New York City, that is volnurable to climate change effects”.
In their joint motion to dismiss the claim, the Defendants did not dispute the scientific consensus that GHG emissions from fossil fuel use have contributed to global warming. At the same time they asked the court to dismiss the claim on the grounds of the applicable law (instad of stat law, a federal common law shall apply); Rule 12 (b) (1) “the district court lacks the statutory or constitutional power to adjudicate it”; the City’s claims are not justiciable, and the City has failed to allege proximate cause.
The Court agreed that the City’s claims are governed by federal common law, since they interplay with the neccessity “to protect uniquely federal interests”; however, the lawsuit represents the type of “transboundary pollution suit” to which federal common law should apply in order to elaborate “a uniform solution”. The Court recognises that the City, and many other governmental entities around the US and in other nations, “will be forced to grapple with the harmful impacts of climate change in the coming decades”, therefore the problem requires a broader solution, which the local court fora cannot provide.
Concluding the analysis, the court highlight the judicial perspective of the case in federal court: “To litigate such an action for injuries from foreign greenhouse gas emissions in federal court would severely infringe upon the foreign-policy decisions that are squarely within the purview of the political branches of the U.S. Government. Accordingly, the Court will exercise appropriate caution and decline to recognize such a cause of action”.
The court also came to the conclusion that “the City’s claims interfere with Separation of Powers and Foreign Policy”. Indeed, under present administration, the White House is moving in the opposite direction from tackling the climate change. That leaves the courts the only venue for public interest groups to deal with the societal impacts of the climate change. In its decision the court also said that “such claims implicate countless foreign governments and their laws and policies. This type of claim is the subject of international agreements, including — although the United States has expressed its intent to withdraw—the Paris Climate Accords”.
The City’s amended complaint was dismissed with prejudice in its entirety, following the dismissals of the similar cases brought by the cities of San Francisco and Oakland in Carlifonia, where the judge also confirmed that “there are sound reasons why regulation of the worldwide problem of global warming should be determined by our political branches, not by our judiciary {…} The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case. While it remains true that our federal courts have authority to fashion common law remedies for claims based on global warming, courts must also respect and defer to the other co-equal branches of government when the problem at hand clearly deserves a solution best addressed by those branches. The court will stay its hand in favor of solutions by the legislative and executive branches.” See the decision here
On October 29, 2018 Youth will be suing the federal government for violating their constitutional right to a safe climate, that was recognized in case Juliana v. United States (“the right to a climate system capable of sustaining human life”), originally filed in August 2015 by young plaintiffs from across the country. Supported by Our Children’s Trust and Earth Guardians, the case is one of several climate-related legal actions brought by young people in several states and countries.
The similar reasoning was followed in the EU ‘The People’s Climate Case’ Armando Ferrão Carvalho and Others v. The European Parliament and the Council, where the families from across the EU launched the first strategic climate court case against the EU by taking a case to the General Court to claim that the continued emission of GHGs leading to climate change is contrary to the principle of equality (Articles 20 and 21, EU Charter); the principle of sustainable development (Article 3 TEU, Article 11 TFEU, Article 37 EU Charter, Article 3 UNFCCC (PDF)); the no harm principle in international law; and EU’s environmental policy (Article 191 TFEU).
