Can Chevron, ExxonMobil and BP Be Sued for Climate Change?
August 5, 2016
John Vidal / The Guardian & Emma Howard / The Guardian & Arthur Neslen / The Guardian
The Filipino government body gives 47 'carbon majors' 45 days to respond to allegations of human rights violations resulting from climate change. A legal case will consider if the emissions of 50 fossil fuel companies violate the human rights of those hit by extreme weather. In 2015, a Dutch court ordered the state to reduce emissions by 25% within five years to protect its citizens from climate change in world's first climate liability suit.
World's Largest Carbon Producers
Face Landmark Human Rights Case
John Vidal / The Guardian
(July 27, 2016) -- The world's largest oil, coal, cement and mining companies have been given 45 days to respond to a complaint that their greenhouse gas emissions have violated the human rights of millions of people living in the Phillippines.
In a potential landmark legal case, the Commission on Human Rights of the Philippines (CHR), a constitutional body with the power to investigate human rights violations, has sent 47 "carbon majors" including Shell, BP, Chevron, BHP Billiton and Anglo American, a 60-page document accusing them of breaching people's fundamental rights to "life, food, water, sanitation, adequate housing, and to self determination".
The move is the first step in what is expected to be an official investigation of the companies by the CHR, and the first of its kind in the world to be launched by a government body.
The complaint argues that the 47 companies should be held accountable for the effects of their greenhouse gas emissions in the Philippines and demands that they explain how human rights violations resulting from climate change will be "eliminated, remedied and prevented".
It calls for an official investigation into the human rights implications of climate change and ocean acidification and whether the investor-owned "carbon majors" are in breach of their responsibilities.
The Philippines, an archipelago of more than 7,000 islands, is one of the most vulnerable countries in the world to climate change.
Four of its most devastating super-cyclones have occurred in the last decade, and the country has recorded increasingly severe floods and heatwaves that have been linked to man-made global warming.
Typhoon Haiyan, known locally as Yolanda, was one of the most powerful storms ever recorded, killing more than 6,000 people and displacing 650,000 others in 2013.
The legal complaint has been brought by typhoon survivors and non-governmental organisations and is supported by more than 31,000 Filipinos.
"We demand justice. Climate change has taken our homes and our loved ones. These powerful corporations must be called to account for the impact of their business activities," said Elma Reyes from Alabat Island in Quezon, who survived super typhoon Rammasun in 2008 and is part of the group submitting the complaint to the CHR.
The full legal investigation is now expected to start in October after the 47 companies have responded. Although all 47 will be ordered to attend public hearings, the CHR can only force those 10 with offices in the Philippines to appear.
These include Chevron, ExxonMobil, BP, Royal Dutch Shell, Total, BHP Billiton, Anglo American, Lafarge, Holcim, and Taiheiyo Cement Corporation. The CHR has the power to seek the assistance of the UN to encourage any which do not attend to co-operate.
"The commission's actions are unprecedented. For the first time, a national human rights body is officially taking steps to address the impacts of climate change on human rights and the responsibility of private actors," said Zelda Soriano, legal and political adviser for Greenpeace Southeast Asia, one of the groups which has brought the complaint to the CHR.
"This is an important building block in establishing the moral and legal 'precedent' that big polluters can be held responsible for current and threatened human rights infringements resulting from fossil fuel products. From the Netherlands to the US, people are using legal systems to hold their governments to account and demand climate action," she said.
The list of the 47 "carbon majors" being asked to respond to the CHR is based on research by Richard Heede, director of the Climate Accountability Institute in Colorado. In 2013 he calculated that just 90 global companies had produced nearly two-thirds of the greenhouse gas emissions generated since the start of the industrial revolution.
Together these companies emitted around 315 gigatons of CO2 equivalent into the atmosphere, or nearly 22% of estimated global industry greenhouse gas emissions from 2010 to 2013, said Heede.
"We pray that the CHR heed the demand to recommend to policymakers and legislators to develop and adopt effective accountability mechanisms that victims of climate change can easily access," said Father Edwin Gariguez, executive secretary of Caritas Philippines and a recipient of the Goldman environmental prize.
The CHR is not a court and would have no power to force companies to reduce emissions or fine them. However, it can make recommendations to government and would add to the worldwide pressure to persuade shareholders to divest from heavy carbon emitters.
The investigation is the latest in a growing tide of climate liability cases being brought against governments and corporations. In June, the Netherlands' high court ruled on the world's first climate liability suit, ordering the Dutch government to take stronger action against climate change to better protect its citizens.
However, several court cases launched in the US urging the US government to take more action against climate change have been dismissed.
Philippines Investigates Shell
And Exxon over Climate Change
Emma Howard / The Guardian
MANILA (May 7, 2016) -- Can Chevron, ExxonMobil and BP be held accountable for the vulnerable communities most affected by climate change? It's a question a legal case in the Philippines could answer.
Last month, lawyers for the petitioners met with the Commission on Human Rights of the Philippines (CHR), a constitutional body tasked with investigating human rights violations. Their goal was to identify expert witnesses for a hearing into the liability of 50 of the biggest fossil fuel companies for violating the human rights of Filipinos as a result of catastrophic climate change.
This follows a petition filed on 22 September 2015 by Greenpeace and the Philippine Rural Reconstruction Movement on behalf of typhoon survivors, which called for the devastation of extreme weather-related disasters to be properly recognised:
"The real-life pain and agony of losing loved ones, homes, farms -- almost everything -- during strong typhoons, droughts, and other weather extremes, as well as the everyday struggle to live, to be safe, and to be able to cope with the adverse, slow onset impacts of climate change, are beyond numbers and words."
The hearing will consider whether companies' policies and investments adequately address the human rights issues specified in the petition.
The Philippines is among the countries most exposed to natural hazards in the world, with 130m Filipinos affected by weather-related disasters between 1995 and 2015. In 2013, for example, Typhoon Haiyan wreaked devastation, killing more than 6,300 people and causing billions of dollars worth of damage. It is widely acknowledged -- including by the Filipino government's Climate Change Commission -- that climate change is exacerbating these problems.
The decision to invite climate scientists as witnesses to the Philippines investigation is seen as a significant opportunity to demonstrate the links between climate change and extreme weather.
"It's encouraging because it shows that we managed to get the message out there that this branch of science [the attribution of extreme weather events to climate change] can robustly say things," says Dr Friederike Otto, senior researcher at the University of Oxford's Environmental Change Institute.
A decade ago the field was dominated by generalised predictions about the frequency of events. Today, advancements in computer modelling mean that scientists can make quantitative assessments in real time.
When Storm Desmond hit the UK in December, for example, researchers pronounced within days that climate change had increased the likelihood of the floods by 40%.
But, despite progress in the scientific understanding of the connection between extreme weather events and climate change, the Filipino case still faces challenges. Jurisdiction is a major one.
The CHR can only compel the seven major carbon companies that have branches in the Philippines -- although this does include Shell, BHP Billiton and ExxonMobil -- to defend their policies in writing and at public hearings. The 43 other companies will also be asked to attend. If they resist, the complainants have recommended that the CHR seeks the assistance of the UN to encourage them to co-operate.
The jurisdictional issue touches on one of the central legal hurdles that those suffering from the impacts of climate change face in attempting to hold governments and corporations to account -- does an actor operating in one country have legal responsibility towards those who may suffer the consequences in another?
Lawyers face many other questions. Is it possible to hold any one corporation responsible for its relatively small contribution to a global crisis caused by many? Can anyone be held accountable for harm caused by emissions that go back to the industrial revolution?
"The amorphous nature of climate change presents unique problems that courts are now being asked to rule upon," says climate lawyer Gillian Lobo from ClientEarth, who cites cases including the claim of public nuisance brought by the Alaskan Village of Kivalina against 22 energy companies, and the Urgenda Foundation case, where the Dutch government was ordered to reduce its emissions by a minimum of 25% by 2020. "
Judges are generally cautious when it comes to developing the law, but given the urgent need to tackle the harmful effects of climate change they must be willing to so," says Lobo.
When the investigation concludes, the Filipino government will be mandated to consider the recommendations of the CHR. Although the companies will not be legally bound to any changes to their policies and investments requested by the CHR unless they agree to be so early on in the process (the case is yet to reach this point), Zelda Soriano, the lawyer at Greenpeace acting on the case, says that the findings would hold weight with the courts and the CHR could recommend that specific cases be filed against corporations by victims.
"The world will be watching this investigation and how the carbon majors are responding and behaving," says Soriano. "If there was a positive finding [against these companies] by the commission, it should move the shareholders and investors to think if it is worth investing in the carbon majors, not just on moral grounds but because the very social licence and the profitability of these corporations would also be in question . . . It will set a precedent."
Dutch Government Ordered to Cut
Carbon Emissions in Landmark Ruling
Arthur Neslen / The Guardian
THE HAGUE (June 24, 2015) -- A court in The Hague has ordered the Dutch government to cut its emissions by at least 25% within five years, in a landmark ruling expected to cause ripples around the world.
To cheers and hoots from climate campaigners in court, three judges ruled that government plans to cut emissions by just 14-17% compared to 1990 levels by 2020 were unlawful, given the scale of the threat posed by climate change.
Jubilant campaigners said that governments preparing for the Paris climate summit later this year would now need to look over their shoulders for civil rights era-style legal challenges where emissions-cutting pledges are inadequate.
"Before this judgement, the only legal obligations on states were those they agreed among themselves in international treaties," said Dennis van Berkel, legal counsel for Urgenda, the group that brought the suit.
"This is the first a time a court has determined that states have an independent legal obligation towards their citizens. That must inform the reduction commitments in Paris because if it doesn't, they can expect pressure from courts in their own jurisdictions."
In what was the first climate liability suit brought under human rights and tort law, Judge Hans Hofhuis told the court that the threat posed by global warming was severe and acknowledged by the Dutch government in international pacts.
"The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts," the judges' ruling said. "Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this."
After a legal campaign that took two and a half years to get to its first hearing in April, normally dispassionate lawyers were visibly moved by the judge's words. "As the verdict was being read out, I actually had tears in my eyes," Roger Cox, Urgenda's lead advocate, told the Guardian. "It was an emotional moment."
Young activists in court said that the ruling had gone some way to restoring Dutch national pride, which has been dented as Denmark, Germany and even the UK overtook the Netherlands, once seen as a European climate leader, in the green economy race.
The Dutch Socialist party MP Eric Smaling cautioned though that "some people will feel proud but others are more unhappy about the influx of refugees. So far climate action has too much been the last baby of a relatively leftist elite." He called for a wide coalition to spread the climate action message before elections in early 2017.
The Dutch government has not decided whether to appeal the court's decision yet, but opposition politicians are steeling themselves for the prospect.
Stientje Van Veldhoven, an MP and spokesperson for the D66 Liberal opposition in parliament noted that the government had yielded to a comparable, if more limited, ruling ending gas extraction in part of the giant Groningen gas fields earlier this year.
"The government has never ignored a court ruling like this one before, but there has never been a ruling like this before either," she said. "Everybody has a right to appeal." Veldhoven has requested a parliamentary debate on Wednesday's court ruling.
In a statement on behalf of prime minister Mark Rutte's cabinet, the Dutch environment minister Wilma Mansfeld said that the government's strategy was to implement EU-wide and international agreements.
"We and Urgenda share the same goal," Mansfeld said. "We just hold different opinions regarding the manner in which to attain this goal. We will now examine what this ruling means for the Dutch state."
Some 886 plaintiffs organised by Urgenda had accused the Dutch government of negligence for "knowingly contributing" to a breach of the 2C maximum target for global warming.
Their legal arguments rested on axioms forbidding states from polluting to the extent that they damage other states, and the EU's 'precautionary principle' which prohibits actions that carry unknown but potentially severe risks.
A UN climate secretariat article obliging states to do whatever is necessary to prevent dangerous climate change was also cited. So was the UN climate science panel's 2007 assessment of the reductions in carbon dioxide needed to have a 50% chance of containing global warming to 2C.
Several legal sources said that ideas outlined in the Oslo principles for climate change obligations, launched in the Guardian in March, appeared to have been influential in the judge's reasoning.
James Thornton, the chief executive of the environmental law group ClientEarth, hailed what he said had been a "courageous and visionary" ruling, that would shape the playing field for future suits.
"There are moments in history when only courts can address overwhelming problems. In the past it has been issues like discrimination. Climate change is our overwhelming problem and this court has addressed it. The Dutch court's ruling should encourage courts around the world to tackle climate change now."
Serge de Gheldere, the president of Klimaat Zaak, which is pursuing an almost identical case to Urgenda's in Belgium said: "This gives us a lot of hope as it sets an incredible precedent. The government in Belgium will take a lot of notice of whats happened here today. This could be the first stone that sets an avalanche in motion."
Professor Pier Vellinga, Urgenda's chairman and the originator of the 2C target in 1989 said that the breakthrough judgement would have a massive impact. "The ruling is of enormous significance, and beyond our expectations," he said.
The court also ordered the government to pay all of Urgenda's costs.
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