14 Jan 2013: Opinion

Should Polluting Nations Be
Liable for Climate Damages?

An international agreement to study how to redress developing nations for damages from climate change illustrates how ineffective climate diplomacy has been over the last two decades. But this move may pave the way for future court suits against polluting countries and companies.

by fred pearce

The UN climate talks in Qatar, which ended last month, were as inconsequential as you might imagine when the host nation chairing the event has the highest per capita carbon emissions in the world.

In other words, not a lot happened — except for one thing. For the first time, nations agreed that “developing nations that are particularly vulnerable to the adverse effects of climate change” might have a right to redress from major polluting nations for any resulting “loss and damage.” The conference then directed its staff to begin research on how to ensure that redress.

The U.S. delegation in particular worked hard to make certain there was no mention of compensation or litigation. Nonetheless, the action taken in Qatar suggests nations now concede that damaging impacts of climate change are inescapable. Given that those nations are already under an obligation in international law to prevent dangerous climate change, it brings closer the day when nations may seek redress in the courts for damages caused by climate change. And it may make more likely the prospect of citizens successfully bringing major polluters to court and making them responsible for their contributions to climate change.

The fact that negotiators are even discussing how to respond to “loss and damage” from climate change shows how badly climate diplomacy has
If countries can sue each other, why not private actions against corporate polluters?
failed since nations, including the U.S. under George H.W. Bush, signed up to the UN Framework Convention on Climate Change (UNFCCC) at the original Earth Summit in Rio de Janeiro in 1992. Under that convention, nations promised to ensure the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”

But greenhouse gas concentrations have continued to rise since, because the promised mitigation of emissions has not happened. After 17 years — with the pitifully weak Kyoto Protocol of 1997 the only sign of progress — negotiators at the much-anticipated climate conference in Copenhagen in 2009 admitted that mitigation was failing. So the Copenhagen Accord added another element. Besides mitigation, governments pledged to set aside money for an “adaptation fund” to help poorer nations adjust to what now looked like inevitable climate change.

Today, three years later, the prospect of a new global treaty to mitigate emissions seems as far away as ever, and the adaptation fund is largely empty. So, in Qatar, they added a third leg by launching studies into how to respond to the growing threat of “loss and damage.” What they are, in effect, telling the world is that neither mitigation nor adaptation will work.

The steps taken in Qatar are just words for now. But they could matter a great deal as droughts intensify, floods spread, heat waves kill, seas rise, and islands disappear. Since the big nations are palpably failing to meet their legal obligation to prevent dangerous climate change, it cannot be long before some small nation decides to invoke the disputes procedure laid out in article 14 of the UNFCCC. This procedure allows countries to take those nations failing in their duties under the convention to the UN’s International Court of Justice.

At that point, the legal floodgates may open. For if countries can sue each other, why not private actions against fossil fuel companies and other corporate polluters?

The few attempts so far by citizens to take climate change to court, mostly in the U.S., have been unsuccessful. Courts have dismissed their actions on the grounds that climate change is a political rather than a legal issue. But
One court case brought echoes of the class actions against tobacco and asbestos companies.
the longer the politicians delay, the less viable the courts’ position becomes. Judges may feel forced to fill the void.

The first such legal excursion was in 2005, when victims of Hurricane Katrina filed a suit against a group of oil companies, claiming that by emitting gases that contributed to the warmer Gulf of Mexico that helped intensify Katrina before it made landfall. The case was dismissed in 2007, partly because judges said the harm could not be traced to individual defendants.

Then in 2008, an Inupiat Eskimo community living on a barrier reef off the west coast of Alaska brought an action against Exxon Mobil and 23 other large oil, coal and electricity utility companies. The community said its village of Kivalina was being eroded by the sea. It blamed rising sea levels and melting coastal sea ice that left it exposed to storms and tidal surges, and it sought $400 million to pay for the relocation of the village further inland in Alaska.

Attorney Matt Pawa of the Pawa Law Group in Boston, which brought the case, argued that the energy companies were liable not just because they emitted millions of tons of greenhouse gases, but also because some have engaged in a conspiracy to misinform the public about the dangers of those emissions. This latter point brought echoes of the famous class actions against tobacco and asbestos companies that hung, in part, on their denial of the science proving the risks from their products.

In September this year, the Kivalina case suffered a setback when federal appeal judges ruled that the issue was for politicians in Congress and not the courts. Pawa says his clients have not given up and may try to take the case to the U.S. Supreme Court for review.

Meanwhile, on the international stage, a group of small island nations, headed by Palau in the western Pacific, has asked the UN General Assembly to seek an advisory opinion from the International Court of Justice on the legal responsibilities of nations whose corporations cause international harm through contributing to climate change. The action is not being taken under UNFCCC, but it opens up the door to that possibility in future.

Yale law professor Douglas Kysar, who is helping bring the case, says the island nations, all of which could disappear as sea levels rise, want “to show that the issue is a matter of law and justice, rather than merely politics.” That probably explains why, at the last meeting of the General Assembly this fall, the U.S. government exerted what Kysar calls “significant
Courts cannot stay away from climate change much longer if politicians continue to fail in their responsibilities.
diplomatic pressure to stop the resolution reaching the floor for a vote.” Those efforts ultimately proved successful.

But Palau and its fellow small island nations intend to push the resolution again at future General Assemblies, according to Kysar. “We are seeking nothing more than that the rule of law be introduced into the climate issue,” he says. Kysar believes the courts can no longer shy away from climate change. “Part of the reason why climate change treaty negotiations have cycled through the same set of arguments for the last 20 years,” he says, “is that we don’t have a clear baseline understanding of state responsibility.”

The new diplomatic language about “loss and damage” adopted in Qatar signifies that there has been a potential breach of the UNFCCC agreement. And that breach can only intensify the demand for the responsibilities of nations to be defined in law.

Not everyone is convinced that the new agenda of “loss and damage” will help civil litigators. Pawa believes that if there ever were intergovernmental action on compensation for climate victims, it might reduce the chance of success for private actions against fossil fuel companies. “If they set up a mechanism for compensation internationally, that would make private litigation more difficult, at least in the U.S., because our courts might defer to that process,” he told me.

But that still looks like a long way off. One way or another, lawyers spoken to for this article agree, the courts cannot stay away from climate change much longer if politicians continue to fail in their responsibilities. And it may take court rulings to force politicians to act.

Once the law gets involved, however, there has to be proof linking polluters to damaging weather. That requires good attribution science. In many cases, in order for actions to succeed, it will not be enough to show that polluters cause climate change. Scientists will have to show that individual extreme weather events are attributable to anthropogenic climate change.

The scientist most active in this area has been British climate modeler Myles Allen. He and colleagues at the University of Oxford have shown that both the European heat wave of 2003, which killed an estimated 35,000 people, and devastating floods that hit England in 2000 were made at least twice as likely by climate change. Allen says there is also convincing evidence from others that background global warming turned a heat wave in western Russia in 2010 into an extreme event, in which record temperatures triggered massive forest and peat-bog fires that blanketed Moscow in smog. In past cases involving environmental and health disasters, says Allen, a doubling of risk has been enough to trigger civil liability.

British barrister Richard Lord of Brick Court Chambers in London, editor of Climate Change Liability, believes that attribution research such as that undertaken by Allen and his colleagues makes litigation against climate polluters more likely to succeed in the future, especially if political negotiations continue to falter and climate impacts worsen.

Allen makes another point about knowledge, culpability and liability. Before 1990, he notes, no corporation or government could be held accountable for the impacts of their emissions of greenhouse gases. We simply did not know enough about their impacts on climate. But that year the Intergovernmental Panel on Climate Change published its first assessment of climate change, providing clear evidence. It was enough to persuade diplomats at the UN to begin drawing up the UN Framework Convention on Climate Change, and for governments to sign it two years later in Rio de Janeiro. From that moment on, claims of ignorance have been harder to justify.

That means culpability is growing with time. Within a decade, approaching two-thirds of the greenhouse gases in the atmosphere will have been emitted since 1990. And courts may say that culpability means liability. The argument that emitters should take some legal responsibility for the consequences of their emissions will harden. This will be especially true for those companies still in denial about the climate. They will look ever more like the tobacco corporations denying, against all the evidence, that their products are cancer sticks.

POSTED ON 14 Jan 2013 IN Climate Oceans Policy & Politics Pollution & Health Science & Technology North America 


Excellent article.

In environmental law, the polluter pays principle is enacted to make the party responsible for producing pollution responsible for paying for the damage done to the natural environment. It is regarded as a regional custom because of the strong support it has received in most Organisation for Economic Co-operation and Development (OECD) and European Community (EC) countries.

The polluter pays principle underpins environmental policy such as an ecotax, which, if enacted by government, deters and essentially reduces greenhouse gas emissions. Some eco-taxes underpinned by the polluter pays principle include: the Gas Guzzler Tax, in US,Corporate Average Fuel Economy (CAFE)- a "polluter pays" fine. The U.S. Superfund law requires polluters to pay for cleanup of hazardous waste sites, when the polluters can be identified.

Polluter pays is also known as extended producer responsibility (EPR). This is a concept that was probably first described by Thomas Lindhqvist for the Swedish government in 1990. EPR seeks to shift the responsibility dealing with waste from governments (and thus, taxpayers and society at large) to the entities producing it.

In effect, it internalises the cost of waste disposal into the cost of the product, theoretically meaning that the producers will improve the waste profile of their products, thus decreasing
waste and increasing possibilities for reuse and recycling.

1. U.S. Environmental Protection Agency (EPA). Washington, DC (1996)."The Buck Stops Here: Polluters are Paying for Most Hazardous Waste Cleanups." Superfund Today (newsletter). Document No. EPA-540-K-96/004. June 1996.

2. The International Institute for Industrial Environmental Economics at Lund University, Sweden (2000)."Extended Producer Responsibility in Cleaner Production" Doctoral Dissertation (2000)

Dr. A. Jagadeesh Nellore (AP), India

Posted by Dr.A.Jagadeesh on 14 Jan 2013

If working class taxpayers in "developed nations" become liable for damages to people of other nations at the same time as their own extensive infrastructures and production systems are torn apart by man-made climate forces impacting the world, then this may end up as another excuse for central banks to print more money in defense of plutocracy.

Perhaps the purview of law should consider the term "nation" versus it's relation to sanctioned groups of people called stockholders, who operate under charters of incorporation. Admittedly, many globalized corporations are state backed directly and indirectly, the classic case of merging of state and business interests.

Somehow the liability angle seems like passengers on the Titanic arguing about the best deck chair. All the money in the world will not stop the momentum of abrupt climate change now underway. Only social movement affecting actual political economy may have some chance. Otherwise, we may find ourselves only positioning our liabilities during an extinction event.

Posted by James Newberry on 15 Jan 2013

Regarding "Should Polluting Nations Be Held Liable for Climate Damages", absolutely YES!

Because, anytime a nation pollutes the environment, we all end up paying for it in the long term.

Perhaps, humanity should ask themselves, why allow short term profits that sacrifice the only environment we live in?

Even a small change to the environment affects everyone. How about a 20$ reduction in oxygen as an example.

If any nation wants to behave as if it is okay to ruin the environment just for the same of money, so they can do what with it, then surely you will understand, the need of a better reason than to be irresponsible, right?

Take China for example, have you been to Beijing recently? The air pollution is choking the life out of the Chinese!

Pollution is 30-45 times above recommended safety levels!!! The official state pollution monitoring center (www.bjmemc.com.cn) showed air particulate matter under 2.5 micrometers reaching as high as 900 micrograms per square meter.

This is what MONEY has done for Beijing’s air quality. What difference will it matter if you got all the money in the world WHEN the temperature is 150 degrees Fahrenheit? When the trees all burn, when the oxygen is diminished.

Already, scientist are forecasting the extinction of humanity in just 100 years from now. Yes, it is that serious, but should we listen to political prostitutes, who do the bidding of the rich, we already know what that means, to the bitter end.

On the bright side, ALL of this can be resolved, simply by converting over to using CLEAN ENERGY, by building the world's first superconductive sustainable clean energy smart network grid!

The reason is to insure the surface of the sunny side can share the solar energy to the dark side, thus insuring for the next 5 billion years dependable energy.

And should anyone wonder how much clean energy is available, it's so great a number, that there would be more than enough for the entire whole world many thousands of times over.

Another words, humanity wouldn't be dwindling on dirty energy, but prospering on ABUNDANT and sustainable clean energy.

Or, everyone can just continue on with their beliefs it cannot be done while the dirty energy suppliers make record history profits.

That is why they don't want you to know this...and why shareholders of corporations don't want to be held accountable for excluding themselves out of any responsibility.

Pass a law, make every shareholder held accountable. Should their money be used to harm the environment, we should be able to SUE them for the cost to cleanup the environment.

This is how they cheat, by scarfing the long term climate, the environment and our health, so they can earn a profit in the short term.

The same happens with the nuclear industry, as we only get the short term gain, at the sacrifice of the long term radioactive waste.

Clean energy will empower humanity, in so many better ways. Why delay, why the wait, unless you are not willing to let the world have FREE clean energy.

Posted by Wes Clark on 15 Jan 2013

So now that we know that Tuvalu is not sinking into the sea, and that the Maldives are likewise safe, Nils Axel Morner's sea level group from Sweden's Karolinska Institute showed that sea levels have fallen in the Maldives over the last 20years, the scam has moved to another pacific island that wants what? Help to relocate to higher ground? No, international compensation. Where is it going to come from? Well, who is emitting all that terrible CO2? Used to be the US of A, but since the recession, and due to the fact that burning gas that has been "fracked" emits only half as much CO2 as coal, they will have to send their legal demands to China and India. Good luck with that.

Posted by ian hilliar, Australia on 16 Jan 2013

ian hilliar,

“So now that we know that Tuvalu is not sinking into the sea, and that the Maldives are likewise safe”

Well that’s not true. I’m not sure where you get your information from but if you want to have credibility you need to back it up with a credible source.

“the scam”

What scam? Do you mean the climate change deniers? Don’t you realise that the climate scientists were cleared of any wrongdoing? To say otherwise is both untrue and defamatory.

“and due to the fact that burning gas that has been "fracked" emits only half as much CO2 as coal”

Well that’s not true. Methane leakage is a major problem with fracking, the dangers of which only get worse by the day. Fracking will turn out to be one of the biggest cons ever foisted on the human race.

“There is growing evidence that fracking can cause a range of environmental problems. A recent study by the US Environmental Protection Agency reported evidence of pollution, finding a range of chemicals in the groundwater around shale gas wells in Wyoming.”

Source: http://www.guardian.co.uk/environment/2012/jan/13/uprising-against-fracking-nuisance?INTCMP=SRCH

Wes Clark,

You raise some interesting points. I think that demand for action on man-made climate change is starting to gain traction again. I live in hope.

“Already, scientist are forecasting the extinction of humanity in just 100 years from now. ”

I’d like to see a link for that. It seems within the bounds of possibility though at the rate we are currently going.

“Pass a law, make every shareholder held accountable. Should their money be used to harm the environment, we should be able to SUE them for the cost to cleanup the environment.”

I’d love such a law. Not sure how you would handle institutional investors who invest on our behalf though.

James Newberry,

Interesting but also what about institutional investors who invest on our behalf?

Dr. A. Jagadeesh Nellore (AP),

A good read as always.

Fred Pearce,

An interesting read. Sounds much like I wrote in my blog in November 2011:

“The recent cases against the tobacco and asbestos companies have provided a powerful precedent that will enable individuals, companies and even countries to be held to account in a court of law. If a link to the major oil companies can be established here the penalties will run into trillions of dollars. I fully expect countries that have delayed to be sued eventually as well. These cases move slowly but eventually catch up with the perpetrators.”

Source: Richard Muller and The Berkeley Earth Surface Temperature (BEST) group
Posted by Matthew Rosenbaum on November 11, 2011 at 9:01

I look forward to the day we catch up with the fossil fuel industries. They have much to answer for.

Posted by Matthew Rosenbaum on 17 Jan 2013

I wholeheartedly believe we should be able to sue polluters as individuals, towns, counties, states, regions, and as the USA. I have ofter thought that we in North Carolina should be able to sue Atlanta and ? for killing our forests and for acid rain which is also decimating our forests and water.

Posted by M. Watt on 17 Jan 2013


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Fred Pearce is a freelance author and journalist based in the UK. He serves as environmental consultant for New Scientist magazine and is the author of numerous books, including the newly released The Land Grabbers: The New Fight over Who Owns the Earth. In previous articles for Yale Environment 360, Pearce has written about a positive development that emerged from last year’s Rio+20 summit and explored the question of whether environmentalists are increasingly taking anti-science positions.



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