Climate Emergency and The Law

Climate Emergency and The Law

In this post on the climate emergency, we turn attention to the law. To what extent can governments and carbon polluters be legally held to account for their actions? It seems this approach is gaining traction, though with some limitations and setbacks.

Research by the LSE shows that climate change litigation is increasingly viewed as a tool to influence policy outcomes and corporate behaviour. Cases are designed to press national governments to be more ambitious on climate action or to enforce existing legislation; other cases against major emitters seek compensation for loss and damage. A human rights basis for litigation on climate change has had increasing resonance with judges.  This litigation continues is occurring worldwide: there are now cases in the Americas, Asia and the Pacific region, and Europe. Litigation could encourage private companies and investors to give greater consideration to climate risk. Plaintiffs have made claims against investment funds and companies for failing to incorporate climate risk into their decision-making.

The Netherlands’ supreme court upheld a ruling ordering the country’s government to do much more to cut carbon emissions. The court ruled that the government had explicit duties to protect its citizens’ human rights in the face of climate change and must reduce emissions by at least 25% compared with 1990 levels by the end of 2020. According to the supreme court, individual nations have direct obligations under articles 2 and 8 of the European convention on human rights, covering the right to life and the right to private and family life.  However, the latest national statistics show the Netherlands is very unlikely to meet the 2020 emissions target.

The US Supreme Court denied the Trump administration’s request to dismiss a case brought by young people alleging that the government has violated their constitutional rights to life, liberty and property by failing to prevent dangerous climate change.  However, the US district court of Oregon found that it lacked the power to enforce climate policy decisions by the government and Congress. Nevertheless, it found that the record “conclusively establishes that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions” and “that the government’s contribution to climate change is not simply a result of inaction”.  A similar case was brought in Canada.

As well as targeting governments, activists are suing oil companies. The Climate Accountability Institute identified the top polluters: 20 companies are responsible to one third of all emissions. Saudi Aramco and Chevron head the list.

States such as Rhode Island and Northern California are suing oil companies for the damage caused by climate change, arguing that they knowingly misled the public about the climate threat posed by their products. In echoes of the litigation against tobacco companies, there is already substantial evidence that oil and gas company executives created campaigns to convince the public that climate change was not a threat.

But courts are not always convinced. Exxon Mobil was ruled not to have deceived investors of the impacts of “its practices and procedures” though the court did not excuse it of responsibility for global heating.

ClientEarth, a charity that uses the law to press Governments to take action on climate change, has benefitted from an auction of Dave Gilmour’s guitars which raised £21.5m.

It may be surprising to some that the demand for law reform is not just coming from pressure groups, but also from industry. A regulatory environment built around fossil fuels actively works against the development of renewable energy. Whilst offshore wind, for instance, generally finds it relatively easy to gain the relevant permits, in the UK onshore wind development is hampered by planning permission requirement, is excluded from capacity auctions for new power generation, and has had subsidy support removed .

There are no longer grants for domestic solar in the UK. The Feed-In Tariff system was closed in April 2019.

Energy policy generally remains a political football. Governments are struggling with getting the right regulatory environment to encourage renewable energy without stifling the traditional energy companies, who are the only organisations that have both the money and the incentive to make real, sustainable change in the sector. This is not only about a subsidy regime that promotes energy efficiency but also about tackling issues such as carbon taxes, the development and introduction of new technologies, and pricing.

The law can be used against energy companies, especially in demanding it play its part in the transition to a green future. It can also be used with those companies – in the future, we will have to see both carrot and stick to ensure the ambitious targets of Paris are actually met.

SAMI Consulting’s energy expertise includes Dr Will Blyth at the UK Energy Research Centre and at Oxford Energy Associates; and Jonathan Blanchard Smith at the Natural Resources Forum.

Written by Huw Williams, SAMI Principal and Jonathan Blanchard Smith, SAMI Fellow and Director

The views expressed are those of the author(s) and not necessarily of SAMI Consulting.

SAMI Consulting was founded in 1989 by Shell and St Andrews University. They have undertaken scenario planning projects for a wide range of UK and international organisations. Their core skill is providing the link between futures research and strategy.

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