As climate lawsuits heat up, doing nothing becomes riskier business

High in the Andes of Peru, the glaciers that feed Lake Pallqaqucha are melting. Down below, the lake itself is swelling; and if it bursts its banks, Saul Luciano Lliuya's farm will flood, as will his village of Huaraz and much of the surrounding countryside.

So Lliuya is proactively suing a German energy company for 1 percent of the damages, because the carbon majors report showed that the company was responsible for 1 percent of the world's greenhouse gas emissions.

Meanwhile, a nonprofit organization in Belgium is preparing to sue the Belgium government into taking more climate action after a court in the neighboring Netherlands ruled that its own government had violated human rights by not doing enough to combat climate change. 

These are just a handful of pending cases that test the ability of our legal system to address climate change, and attorney Carroll Muffett said they stem partly from the failure of international climate negotiators to deliver results. 

"A lot of the energy and progress around fixing climate change is going to go to litigation," said Muffett, president and CEO of the Center for International Environmental Law, an advocacy organization. 

Most of the lawsuits are against governments, but the risk for companies are increasing as well, said David Hunter, director of the Program on International and Comparative Environmental Law at American University's Washington College of Law. 

"We're at the point where the tide of litigation on climate change is only going to grow, and at this point, the major producers and emitters will be compelled to treat this issue more seriously," Muffett said. 

If these lawsuits are successful, it could transfer climate risk from victims to emitters — hopefully bolstering the business case for reducing emissions, and possibly providing support for carbon markets as an interim solution for companies that can’t reduce internally yet.

Climate court

The ruling in the Dutch case perhaps made it the most famous of these climate court cases, but many others are in different stages of development. Along with the aforementioned cases in Belgium and Peru, a coalition of NGOs, citizens and academics successfully sued the Indonesian government over the impacts coal mining has on the environment and people. But in that case specific companies caused specific damage locally — on the ground, in the water and in the air. Climate change is more diffuse and more of a challenge, but six South Pacific nations announced last month their intent to sue fossil fuel companies for their contribution to climate change. 

Meanwhile, in the U.S., a Northwestern nonprofit called Our Children's Youth is organizing youth-led lawsuits for climate justice — and winning. In one such case, a Supreme Court judge ordered the state of Washington to consider statewide emission reductions. 

All of these cases would have seemed improbable at best just a few short years ago, when the island city of Kivalina, Alaska sued multiple energy companies for the damages climate change already has caused them as they sink into the sea. They lost their case after a federal court ruled it was a political — rather than a legal — issue, placing the onus on governments rather than companies. 

"Early cases failed because the law wasn't ready to deal with this, and the science wasn't there," said Muffett.

Science changes the game

But times have changed. And the needed science to back climate change impact cases is increasingly available. 

"What we're seeing as the science gets better and better are plaintiffs who can point to very compelling and often government-endorsed scientific information saying this is the harm specific to me and I can trace it to climate change," said Muffett. 

The science — or, more accurately, the general public’s understanding of science and accountability — improved on a number of levels, thanks to efforts such as the carbon majors report, which traces the majority of emissions released into the atmosphere over the last 150 years to 90 entities. It essentially exposes them to the risks of accountability, and indeed it forms the basis of Lliuya's lawsuit against RWE, the German energy provider. 

That's important because a huge challenge regarding climate lawsuits is proving the personal harm done that allows a plaintiff to sue a defendant, said Sladye Hawkins Dappen, an environmental attorney and former council to Ecosystem Marketplace publisher Forest Trends. 

"In U.S. law, it's hard to show concretely that someone has been harmed by any one particular company's action because often the company contributes a small fraction to the harm," she said.

An offsetting connection?

As already evident, responses will vary with some companies accepting responsibilities and making necessary alterations, while others won't, Muffett said. 

Hunter said he could see a role for offsetting but is unsure of how it might play out. The most likely scenario he sees is one where companies pledge to use offsetting as a way of addressing climate risk in the future. Offsetting won't necessarily affect an existing court case because the harm already has happened, Hunter explained. But the practice could be one component of a settlement agreement and as a way to move forward and prevent future impacts. 

Businesses that already have been offsetting can use it as a line of defense against potential lawsuits.

"It will help determine a company's level of negligence. The company can say it was investing in carbon offsets instead of denying science," Hunter said.

Companies being able to distance themselves from climate denial could come in handy. A new Union of Concerned Scientists report, The Climate Deception Dossiers, unearths a deliberate campaign by the fossil fuel industry to mislead the public on the risks and impacts of climate change.

The offsets option

On a national scale, there is also potential for an increase in offsetting. Governments may choose to meet required ramped-up emission reductions targets through the carbon markets, said Sarah Deblock, the EU policy director at the International Emissions Trading Association. Countries could turn to other options as well, though, such as a tax or increased efficiency standards. 

"For the Dutch to meet their obligation as a country, they may have to enter into the offset market more significantly," said Hunter. The Netherlands hasn't yet announced how it will meet the additional targets. Deblock, along with several others following the case, believed the Dutch government would contest the decision.

Not a sure thing

The ruling in the Netherlands doesn't necessarily signal a new normal regarding climate legal action, said Dappen. Laws are different depending on the place. For instance, the precautionary principle, which requires precautionary actions for activities causing potential harm to the public, is stronger in Europe than in the U.S. 

But legal and political differences won't curb litigation, just increase the variety, Muffett said. "The litigation that we're moving into is going to be as diverse as the impacts of climate change itself," he said. 

And while legal action isn't a sure thing, it’s proved itself in the past. Dappen noted the legal action against coal plants as a successful example — although other factors such as the price of natural gas factor in. 

Muffett and Hunter both noted the wave of tobacco litigation eventually shifted in the plaintiffs' favor. 

"If I was in the fossil fuel industry, I would be looking at the tobacco model with a substantial amount of concern,” said Muffett.