Tuesday, December 27, 2011

U.S.: 2nd wave of the initiative of “Our children’s trust”

Youth of the U.S. vs. the U.S. Government - round 2. 
“Our children’s trust” launched a second wave of its climate change initiative after an opinion was made by the District Court in California on Dec 6, 2011. The second wave, launched in Washington D.C., is targeting the U.S. Government. More to be found here at the climatelawyers.com website or on the website of “our children’s trust”.

The first wave of lawsuits launched in May 4, 2011 by Alec Loorz, an, at the time, sixteen year old environmental activist, and other youths, together with Kids vs Global Warming and Wildearth Guardians.

The plaintiffs filed State-level lawsuits against several government offices and bureaus in California, Colorado, Minnesota, Montana, New Mexico, Oregon and Washington, and a federal lawsuit targeting Lisa P. Jackson the EPA Administrator, Kenneth Salazar Secretary of Interior, Thomas Vilsack the Secretary of Agriculture, Gary Locke the Secretary of Commerce, Steven Chu the Secretary of Energy and Leon Panetta Secretary of Defense. The federal lawsuit was filed in United States Ninth Circuit District Court in San Francisco California because of this jurisdiction's friendliness to environmental concerns. This was probably why another climate change lawsuit, Native Village of Kivalina v. ExxonMobil, may also have been filed in the Ninth Circuit Court of in San Francisco California.

In the original filing, our children's trust argued that the atmosphere is a public trust within the hands of the U.S. Government. The public trust principle states that the government holds important and non-renewable natural resources in “trust” for the public, thereby making it a trustee. In this position as trustee, the government is required to protect these natural resources for the beneficiaries of the trust, namely citizens and future generations of citizens. Under this doctrine, the government must not allow private interests to cause irreversible damage to critical resources within the public trust, which in the case of climate change is the clean atmosphere.

The second wave moves the federal suit to Washington D.C. because of the national significance of the case which could additionally provide the lawsuit with more media coverage.

This case does not deal with climate change damage compensation which is the main focus of this website therefore we refrain from a detailed report.

Friday, December 9, 2011

Special focus on tort law in the Netherlands, part 2 of 2

Tort law in the Netherlands. 
We have seen in another article on this blog that the Netherlands might be amongst the best places in the European Union to sue climate polluters. For this reason, we investigate in more detail the Dutch legal system in a view of climate litigation / climate damage compensation cases. We base this investigation mainly on two publications available in English. The second one is not very recent, but complements perfectly the first one:

“Civil Liability for Transfrontier Pollution - Dutch Environmental Tort Law in International Cases in the Light of Community Law” by Gerrit Betlem, Grahem & Trotman / Martinus Nijhoff, London/Dordrecht/Boston 1993, available at: Google Books

Forum and applicable law: We skip these sections they are outdated by later developments, namely the EU Regulation EC/44/2001 and the EU Regulation EC/864/2007 (“Rome II”). For these aspects – and many others not covered here – please see our 1st article on the Netherlands. See for the topic of Forum also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 2 onwards.

Causation: Dutch law applies the Latin “conditio sine qua non” rule (462). According to this rule, a fact is a cause if the damage would not have occurred without the fact. However, the Dutch High Court “Hoge Raad” does not request that damage reducing measures of the victim would not have been taken without the damaging fact. In the Rhine water case MDPA referred to below, the contribution to the saltiness of the Rhine water made the tortfeasor proportionately liable although the victims might have decided to reduce the salt of their irrigation water anyway, even without this contribution (463/464).

Unlawfulness: It shall be recalled that A6:162 of the Dutch Civil Code provides:
  1. A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.
  2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.
  3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.
As in the 1st article on the tort law in the Netherlands, the authors identify three reasons for unlawfulness: “breach of a statutory duty, infringement of a right and breach of duty to take due care” (350). Each of these three grounds fulfils separately the requirement of unlawfulness (350).

Breach of a statutory duty: A duty is “statutory” if it is contained in any written provision of private or public law, including even self-executing provisions of (international) treaties (350). The authors even claim with reference to a ruling of the Hoge Raad that the breach of foreign law can constitute a breach of a statutory duty as well, but this statement seems to be limited to cases where the foreign law is “the law applicable to the conflict” (354/355). According to Article 6:163 of the Dutch Civil Code, “There is no obligation to repair damage when the violated norm does not have as its purpose the protection from damage such as that suffered by the victim” (356). This article is the basis of the doctrine of relativity of unlawfulness which needs only to be applied to the case of breach of a statutory duty (357).

Infringement of a right: The authors argue that this case has no function independent from the other two cases (377-390) except in special cases (which are of no relevance to climate change litigation).

Breach of duty of care: The essence of the examination which has to be made under this item is the weighing of the interests between the victims and those who have caused the damage (391-401). The Hoge Raad, in a ground breaking ruling of 23 September 1988 in a case of three Dutch horticulturists against the French state owned potassium mining company “Mines Domaniales de Potasse d' Alsace” MDPA, polluting the Rhine water, stated the following: “3.3.2. In assessing part 1, the criterion should be that whether a party who discharges substances into a river fails to observe its duty of due care towards those using the river-water downstream depends on the nature, seriousness and duration of the damage caused to the latter and on the other circumstances of the case; among the factors to be considered here are, on the one hand, the nature and importance of the interests served by the discharges and, on the other, the interests served by the use of the water downstream and the extent to which this use is liable to be affected by the substances discharged. It should be born in mind that in weighing up the respective interests, special importance must be attributed to the interests of the user downstream in that such a user may in principle expect the river not to be polluted excessively by large discharges.” In this case, the Hoge Raad did not see an inconvenience in the fact that the only means to reduce the salt emission would be to close down the business as the case related only to compensation (396). Another aspect interesting in the perspective of climate damage litigation: the salt added by MDPA to the Rhine water was “relatively minor”, though not negligible (395) or, to be precise, never more than 17% (398). However, the case was simpler than climate damage compensation in as much as there was a simple linear relation between salt increase and damage (395).“ A second doctrine has been developed for the third case “breach of duty of care”, the doctrine of creation of danger (410 onwards). This doctrine is more severe for the alleged tortfeasor and it includes by itself elements of imputability (or accuseability) – becoming thus a kind of strict liability. The authors see room for this second doctrine mainly with regard to dangerous substances (442). As victims of climate change would even have better chances of success under this doctrine, we can refrain from presenting details of this doctrine here. To our knowledge, this second doctrine is not yet prevailing on the “weighing of interests” doctrine. Chances for success for climate change victims under Dutch law have thus rather to be assessed in accordance with the “weighing of interests” doctrine.

Imputability: Imputability means the extent that the supposed culprit is able to be accused. Article 6:162 (3) of the Dutch Civil Code says: “An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.” Though formally being incumbent to the plaintiff, it is in practice up to the defendant to rebut the assumption of imputability once the unlawfulness has been stated (444).

The first of the three alternative conditions for imputability is fault. Fault is not given if the causation of harm was not foreseeable and preventable for “the ordinary/reasonable man” (445). An “organization cannot plead lack of fault for not knowing something it should and could have known if the information had been properly registered” (445).

Reasonable attributability: Article 6:98 of the Dutch Civil Code sets up a requirement which is in-between the item of causality and imputability: “Reparation can only be claimed for damage which is related to the event giving rise to the liability of the debtor in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to the debtor as a result of this event.” This recently introduced requirement is not identical to foreseeability (464), but may include aspects of foreseeability (466). It serves rather as a tool for sidelining very remote or indirect damages (466/467).
Comment: We can assume that Dutch courts, if confronted with climate damage compensation claims, would have different views on whether the condition of “reasonable attributability” is fulfilled. Their views might also depend on the type of climate damage that is subject of the lawsuit. The least remote/indirect damage types are probably those caused by the melting of snow and ice linked to the temperature increase. Damages caused by flooding or draughts, both if triggered by the melting of high mountain snow and ice, and damages caused by the sea level rise might thus be good candidates for pioneering lawsuits under Dutch law (and, by the way, probably beyond).

Joint and common liability of multiple tortfeasors: Article 6:102 of the Dutch Civil Code makes multiple tortfeasors jointly and severally liable (471). “The plaintiff is entitled to claim compensation for his entire damage from any one of the defendants, regardless of the contribution of that defendant to the loss.” (472) The defendant hold liable “has a right of recourse against his co-tortfeasors” (472).

Burden of proof: Article 177 of the Dutch Code of Civil Procedure says: “Upon the party who invokes legal effects of the facts or rights furnished by it, rests the burden of proving those facts or rights, unless a different distribution of that burden of proof ensues from a specific rule or from the requirements of reasonableness.” The burden of proof is thus primarily on the plaintiff's side. However, a relaxation or even shift may take place. “In particular in danger creation situations, the burden of proof is relaxed or reversed.” (478) Furthermore courts have developed a practice of setting up factual assumptions based on first evidences (478).

Procedural goals: Under the Dutch law, plaintiffs can go for injunction or for compensation. For the injunction path, an additional weighing of interest, including societal interests such as employment, takes place (489 to 497). Thus it will be more difficult for climate change victims to obtain the stop of CO2 or other climate damaging gases than to obtain compensation. However, going for injunction has also advantages. There is no requirement for fault or damage – it is sufficient that a damage (or even just the potentially damaging action) is likely (512). If the court has denied injunction on grounds of societal interests, it may accord compensation (513). Thus the two paths are of interest to climate change victims.
See for this topic also Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 10 onwards.

Content of compensation: The Dutch law does only cover compensatory damage, but includes therein non-material damage (498 – Article 6:106 of the Dutch Civil Code).

Preclusion: Article 3:310 of the Dutch Civil Code provides that a right of action to compensate is prescribed as from 20 years (30 years for environmental damages) after the event that caused the damage took place. The right is also precluded as from 5 years after the victim being aware that s/he could sue a certain tortfeasor (508-510).

Class action and standing of NGOs: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 13 onwards.

Violation of foreign law as a basis of tort law: See for this topic Gerrit Betlem's article “Transnational Litigation against Multinational Corporations before Dutch Civil Courts” published in: M. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (Kluwer Law International 2000), p. 283-305, available here: http://www.eulaw.soton.ac.uk/elpub/gb00.pdf, page 5 onwards.

The Dutch Civil Code is available here: http://www.dutchcivillaw.com

Friday, December 2, 2011

Special focus on tort law in the Netherlands, part 1 of 2

Dutch tort Law
(Image by Jonathunder). 
We have seen in another article on this blog that the Netherlands might be amongst the best places in the European Union to sue climate polluters. For this reason, we investigate in more detail the Dutch legal system in a view of climate change litigation / climate damage compensation cases. We base this investigation on two complementary publications available in English. The first one is:

“Corporate Human Rights Violations: The Feasibility of Civil Recourse in the Netherlands” by Nicola M.C.P. Jägers and Marie-José van der Heijden, available at: http://ssrn.com/abstract=1351768

Forum: In Dutch law, the Common Law principle of “forum non convenience” does not apply (849-850). Instead the Dutch law is, like the law of all other EU Member States, dominated by the applicable EU law. Under article 2(1) of the EU Regulation EC/44/2001, “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.” The authors further write: “What is to be understood as an individual’s domicile is provided for in article 60(1), which states that ‘a company or other legal person or association of natural or legal persons is domiciled at the place where it has its (a) statutory seat, or (b) central administration, or (c) principal place of business is a broad formulation that allows for multiple fora.’ ... in other words, regardless of the place of headquarters, if a corporation, pursuant to its articles of association, is incorporated under the laws of the Netherlands, it will be subject to the jurisdiction of Dutch courts.” (845) Furthermore, the authors state that, according to article 5(3) of the EU Regulation EC/44/2001 “in matters relating to tort delicts” the plaintiff may sue “in the courts for the place where the harmful event occurred or may occur.” (846)

Applicable law: In the original Dutch law, the applicable law is, according to Article 3(2) of the Conflictenrecht Onrechtmatige Daad, the law where the effect is felt; but the parties can decide otherwise (851). However, the EU Regulation EC/864/2007 (“Rome II”), as all directly applicable EU law, prevails on the original Dutch law. According to Rome II, the law of the place where the damage occurred is applicable, but the law of the state in which the event giving rise to the damage occurred may be chosen by the victim.

Basic rules of tort law: A6:162 of the Dutch Civil Code, provides:
  1. A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.
  2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.
  3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.
The authors draw the following conclusions: “In other words, under Dutch tort law, a tort is committed when (1) an act or omission violates a statutory duty, (2) a right is violated, or (3) an act or omission violates a rule of unwritten duty of care.” (855)

Content of compensation: The Dutch law does only cover compensatory damage, but does not include punitive damages like in the U.S. (861).

Liability for daughter companies: There is a possibility to make parent companies liable for tort of daughter companies (840-843).

Costs of the legal procedure: The Dutch law applies the “the loser pays principle”, see articles 237 to 245 of the Wetboek van Strafvordering – Dutch Code of Criminal Procedure (860). N.B.: We will see below that the loser does not necessarily have to pay the entire costs of the adversary.

Legal aid: Legal aid is provided in cases where the income of the plaintiff is not sufficient, and this in accordance with article 34 of the “Wet op de Rechtsbijstand” – Bill on Legal Aid, Stb. 1993, 775 (860, Footnote 102).

Lawyers' culture: Unlike in the U.S., there is no culture of volunteering work of lawyers (860-861).

Organizations' possibility to sue on behalf of environmental law victims: “305a of the Dutch Civil Code provides that an organization may bring a claim on behalf of people whose interests have allegedly been harmed, provided that the organization represents those interests. Burgerlijk Wetboek [BW] [Civil Code] art. 3:305a (Neth.). This article, however, does not address claims seeking monetary compensation.” (861, Footnote 104)

Class actions: There are no proper class action mechanisms; each case is individually assessed (861). However, there is a mechanism to extend the applicability of a judgment can be extended to other plaintiffs whilst these may opt-out, see the Dutch Civil Code articles 7:907–10 and the Dutch Code on Civil Procedure articles 14:1013–18.

Conditions for the applicability of international law: The Dutch law recognizes international law as a basis for stating tort. However, the respective international law must provide for a direct and a horizontal effect (855).

The Dutch Civil Code is available here: http://www.dutchcivillaw.com

Update Dec. 9, 2011: part 2 continued here

Friday, November 4, 2011

Overview of environmental liability law in 13 European Union states

(Image by Cosmogoblin). 
The following book provides an overview of environmental liability law in 13 European states: “Environmental Liability and Ecological Damage in European Law”, edited by Monika Hinteregger, Cambridge University Press, Cambridge et al. 2008, ISBN 978-0-531-88997-1. Although not dealing with climate litigation, the book also permits to some extent a comparative analysis of the chances to obtain compensation for climate damages by lawsuits. Such a comparative analysis is of particular interest in so far as the victims of violation of the environment have, according to Article 7 and Article 4(1) of the European Union Regulation EC/864/2007 of 11 July 2007 on the law applicable to non-contractual obligations "Rome II" a choice between two applicable laws:
  • The law of the state where the damage has materialized;
  • The law of the state in which the event giving rise to the damage occurred.
Given that oil refineries are run in many states, the victims of climate change have quite some choice. Two law systems might be particularly interesting for climate change victims: the law of the Netherlands as it seems to recognize statistical evidence for causality and the law of Sweden as it seems to allow class actions.

Below you find a summary of a few key sections that outline such chances and hurdles to create lawsuits in the EU.

Key sections of “Environmental Liability and Ecological Damage in European Law”, edited by Monika Hinteregger 
The following summary points to some key sections of the book “Environmental Liability and Ecological Damage in European Law”, edited by Monika Hinteregger, Cambridge University Press, Cambridge et al. 2008, ISBN 978-0-531-88997-1. No liability for the correctness of the summary is engaged. Readers are always recommended to refer to the original book to obtain a more precise and more comprehensive picture.

Page 642 on strict liability for pollution damages: Germany, Greece, Finland and Sweden have comprehensive no-fault environmental liability statutes. In France and in Belgium, the non-fault liability of the custodian of a thing according to Article 1384(1) of the Code Civil is also applicable to pollution damages. However, in Belgium, this rule is only applied to things which are defective. In Spain, Article 1908 of the Código Civil is the legal basis for non-fault liability, and in the Netherlands it is Article 6:173-178 of the Burgerlijk Wetboek. In England and Ireland, the case Rylands v. Fletcher from the year 1868 is used as a reference.

Page 643 on neighborhood law based liability for pollution damages: In all examined states, neighborhood law is used as a legal basis for litigation of pollution cases. A claim can be successful if there is a "continuous, unlawful, and indirect interference with the use or enjoyment of land exceeding a certain threshold of tolerance." In Scotland and in the Netherlands, no fault needs to be established. Austria, Finland, France Germany, Greece, the Netherlands, Spain and Sweden apply the notion of “Force majeur”. England, Scotland and Ireland speak about acts of god or natural disasters which hinder the liability of the land owner.

Page 644 on burden of proof: The burden of proof generally lies with the plaintiff. According to the principle of free evaluation of evidence, generally accepted in all European countries, the admission and weighing of evidence lies within the discretion of the court. In none of the examined states statistical evidence alone is regarded as sufficient. However, the Dutch Hoge Raad granted compensation on the basis of statistical evidence in the Des case (HR 9 October 1992, NJ 1994, 535 (Des-dochters)). Austria, Germany, Greece and Spain require a high level of probability, but in Austria and in Germany, a prima facie evidence is sufficient (page 373). England, Scotland and Ireland require that, on the balance of probabilities, the defendant's activity was, at least, a material contributor to the damage. In Finland and in Sweden the requirements are lower. The causality must be more probable than not, which means  that there must be "clearly more than 50 %" likelihood.

Pages 395-399 on joint and common liability: "If damage is caused by several tortfeasors, all the countries grant the victim the right to full compensation from any of the defendants (joint and several liability), even if the plaintiff is not able to apportion the damage among the defendants. The defendant who has compensated the victim is then generally entitled to claim reimbursement from the other defendants." However, there are differences with regard to the details. In Austria and Germany a joint and common liability is only assumed if the shares of multiple defendants cannot be estimated, see § 1302 ABGB for Austria and §§ 830(1) and (2), 840(1) and 426(1) BGB, § 287 ZPO for Germany.  The same for France: If it is possible to determine the respective responsibility, the polluter will be responsible only for his part of the damage. The legal basis for the joint and common liability in Greece is Article 926 Astikos Kodikas. In Italy it is Article 2055 Codice Civile, in Portugal Articles 490, 497 Código Civil, and in the Netherlands Article 6:102 Burgerlijk Wetboek.

Page 374 on class actions: Sweden provides for the possibility of class action lawsuits.

Update Jan. 6, 2012 EU comparison continued here

Monday, October 24, 2011

Moscow heat wave 2010 attributable to climate change

Kremlin cast in smog by forest fires
cause by the 
2010 heat wave
(Image by Jon Richter). 
According to the well-renown Potsdam Institute for Climate Impact Research, the 2010 Moscow heat wave was, with an 80 % probability, the result of climate change. According to a book on environmental liability (further discussed here), “Environmental Liability and Ecological Damage in European Law”, edited by Monika Hinteregger, an 80 % likelihood would be regarded as sufficient for assuming “causality” in several European jurisdictions. So damage claims resulting from this heat wave can be taken to court in several European courts with a good chance of winning.

If the research of the Potsdam Institute can be transposed to other heat waves, heat waves might become (after the sea-level rise) the second important type of climate damage for which causality can be demonstrated.

For more information on the findings of the Potsdam Institute, please see http://www.pik-potsdam.de/news/press-releases/mehr-hitzewellen-extreme-sind-folge-des-klimawandels.

Since the causality has a good chance of being accepted in the European courts these damage claims can be litigated and compensation can be obtained when these damage claims are collected, compiled, and taken to court. That is where the organization Claimer.org assists. On the website http://www.claimer.org/registerDamages anyone affected by the heat wave can register their damage claims and Claimer.org will eventually try to take these possible court cases to court against worldwide corporations that have contributed to climate change and caused the heat wave and therefore caused the damages created by the heat wave. If you have been affected by the heat wave please register your damages here and you will be informed when Claimer.org can take the case to court.

The original repot by Rahmstorf, S. And Coumou, D. Can be found here:
Increase of extreme events in a warming world

Update: review of the book by Monika Hinteregger

Update: translated into Russian

Московская жара 2010 году связаны с изменением климата

Кремль бросил в смогом от лесных 
пожароввызывать на 2010 жары
(Изображение Джон Рихтер). 
По данным широко известного потсдамского института климатологии, период экстремальной жары в Москве в 2010 году с вероятностью 80% явился результатом общего изменения климата. По мнению Моники Хинтереггер, автора книги «Environmental Liability and Ecological Damage in European Law», для многих из европейских властей восьмидесятипроцентной вероятности будет достаточно, чтобы признать положение о причинно-следственной связи действительным. Таким образом, требования о возмещении ущерба, нанесенного аномальной жарой, могут быть предъявлены многим европейским судам с хорошими шансами на успех.

Если результаты исследований потсдамского института будут применены к прочим подобным случаям аномальной жары, то это климатическое явление можно будет признать вторым (после поднятия уровня моря) важнейшим типом оказывающих разрушительное воздействие климатических феноменов, для которых доказуем вышеназванный принцип каузальности.  

Подробную информацию о данных, полученных потсдамским институтом, вы найдете (на английском) по адресу http://www.pik-potsdam.de/news/press-releases/mehr-hitzewellen-extreme-sind-folge-des-klimawandels

Признание принципа причинно-следственной связи европейскими судебными инстанциями дает пострадавшим от аномальной жары, засух и тепловых волн возможность отстаивать свои права в суде и рассчитывать на компенсацию понесенных убытков. Организация Claimer.org предлагает свою помощь в собрании исков и передаче их в суд. Каждый пострадавший от аномально высоких температур может зарегистрироваться на сайте http://www.claimer.org/registerDamages и ассоциация «Claimer.org» сделает всё возможное, чтобы использовать полученные материалы для открытия дела против международных концернов, деятельность которых в большой мере способствует глобальному изменению климата и таким образом приводит к таким климатическим катастрофам, как аномальная жара.

Если вы стали жертвой жары, зарегистрируйтесь на нашем сайте, и мы проинформируем вас, когда иск будет передан суду.

Обновление: обзор книги Моники Хинтереггер (на английском)

Обновление: перевод на русский язык

Thursday, October 20, 2011

What strategy after Obama's u-turn in climate policy?

Obama swearing into office in 2008
Factory releasing GHGs
(Image by Wallyir)
When Obama became President-elect in September 2008, he stated his priority as President, second only to revitalizing the economy with job creation, was going to be addressing climate change and cutting carbon dioxide emissions by 80 % by 2050. Now towards the end of his term he has done a u-turn on this policy goal and he seems to have all but forgotten this environmental issue. President Obama has failed to get such laws passed, Congress will not pass such a law because the senate will not agree to pass the proposed American Clean Energy and Security Act. In light of these events a group of U.S. based organizations and attorneys suggest a legal strategy to force state governments or the federal agencies such as the EPA to act directly. There idea is to sue these government agencies and state governments to get them to create and enforce such rules.

An overview on U.S. based organizations’ and attorneys’ strategies with regard to climate damage litigation are to be found here: http://www.climate-one.org/blog/carbon-courts-atmospheric-trust-litigation

To understand why such rules were not already implemented, one needs to look at the promises Obama made during interviews after becoming president-elect. He stated that he will pass laws to reduce heat-trapping carbon dioxide emissions by 80 % by 2050. Furthermore he promised to invest $150 billion in new technologies promoting green energies.

In February 2009 under Obama, with the Recovery Act of 2009, Congress did allocate $74 billion to green energies and energy saving technologies and $7 billion to the EPA. The EPA used the money to create a scheme to attempt to achieve a never before seen transparency of greenhouse gasses made by companies in the Unites States. The EPA created a Greenhouse Gas Reporting Program. At the end of 2009, the EPA started requiring that large emitters of climate altering emissions began collecting greenhouse gas (GHG) data under the new reporting system. This was to be the bases of calculating that the greenhouse gas emissions are to be dropped by 2050.

The EPA is based on the rules of the Clean Air Act of 1963 last amended in 1990 so the Obama administration proposed a bill that would create a much needed new amendment to the Clean Air Act. A comprehensive act, American Clean Energy and Security Act of 2009, was drafted. It called for a reduction carbon emissions by 3 % in 2012 by 17 % in 2020 and 83 % in 2050 (as compared to 2005 levels) just as he promised during his campaign and this act would have created a scheme like the European Union's Emission Trading Scheme (EU ETS). The bill passed through the House on June 26, 2009 by 219-212 votes. Because the bill was drafted and passed in the house, for the bill to be passed into law it would need to go through the senate.

But in February 2010, the 2007 report from the UN Intergovernmental Panel on Climate Change (IPCC) which declares that it scientifically proved global warming existed, was contested by, among others, republican attorney general for Texas, Greg Abbott. So by July 2010 the mood in congress changed because the mood of the nation changed and Democrat senator Harry Reid said that the senate could no longer pass such a bill because “We know that we don’t have the votes”. So the American Clean Energy and Security Act was never passed.

In September 2010 Obama stated he was unhappy with the current development of the climate change policies, and promised more reform. But because this act will not pass through the senate, congress failed to pass legislative climate policy. Obama again promised that that change was coming, but now one year later he seems to be ignoring the issue and hoping we forgot about it. This climate legislation is lying dormant in Congress, Obama and lawmakers do not have the power to pass the bill. Moreover international climate talks are even further away from any sort of resolution years from resolution.

Now the EPA is collecting the GHG data in the U.S., but without a clear road-map of what to do with the data collected from the Greenhouse Gas Reporting Program. Without laws passed by congress, we may not see a reduction of the GHG.

This is where the overview at climate-one.org tries to explain how to get this result. In the article Phil Gregory, Senior Attorney at Cotchett, Pitre & McCarthy heading the Our Children’s Trust lawsuits explains how he plans to get the EPA to act.

Phil Gregory talking to David Takacs Associate Professor UC Hastings College of the Law, Pete McCloskey former Congressman, and Greg Dalton Founder of Climate One on September 14, 2011
(Video courtesy of Climate One at the Commonwealth Club)

In the discussion, Phil Gregory states that we cannot implement statute based lawsuits, which means that we can’t just aim for one aspect of the problem, such as say that a polar bear is being affected by climate change take this one damage and ask the government to do something about it, because we are not trying to protect one instance, we need to protect the whole world. Instead we need to look at it in a more general macro level and go against the government to force the U.S. government to act on the issue of climate change. To show that there is something larger being put in danger and take this whole issue as a case to the court.

To be able to take the whole issue into account he argues with the public trust doctrine and uses it to claim that the government should be acting as a trustee and protecting the public good of clean air, which these lawsuits should bring the courts to get the government to protect the climate, because they are legally obliged to do so.

Nearly all experts studying the recent climate history of the earth now agree now the average surface temperature of earth has increased more than 1 degree Fahrenheit since 1900 and this is caused by those human activities, especially the release of heat-trapping GHGs. Most recently Richard Muller, a Berkeley physicist and until recently strong climate change critic and skeptic now agrees. And scientists agree that climate change should be stopped.

Furthermore Phil Gregory states that showing that insurance agencies see this as a problem will also help the cause. And finally those bringing the issue to court may want to combine many examples of damages. Our organization agrees with this strategy as well, that is why we are collecting damage claims on the website www.Claimer.org/registerDamages. With these combined proofs and damages we can then better convince the courts that this is all part of the same issue and that the whole issue of climate change should be faced together, and that climate change is indeed creating a negative impact on our planet.

When the court agrees with these proofs then the court could demand that the government, who refuses to pass laws on the subject, must the indeed act to control emissions.

Update: Read more about the initiative of “Our children’s trust” in the U.S. mentioned in this article.

Sunday, October 16, 2011

Still many hurdles on the way to climate change litigation in the U.S.

Legal hurdles for climate change litigation
(Image by lillysmum
A full list of issues to be overcome on the way to climate change litigation in the U.S. is to be found in a short article of Michael B. Gerrard, Director of the Center for Climate Change Law at Columbia Law School:

The first section has to do with the defendants of climate change litigation cases such as jurisdiction. Because though the United states produces a lot of GHGs the United States only produces approximately 18 % of carbon dioxide emissions worldwide if the verdict was only implemented in the U.S. then it would only stop at most 18 % of GHGs. Or issues of Supply Chains, where again if you did stop companies in the U.S. from producing emissions, if those companies imported the goods instead of producing them in the U.S. then production, and therefore the emission of GHGs may only move the area where GHGs are not forbidden or limited by law (such as in China), and therefore no legal threat of legal action exists, and there does not reduce the aggregate world emissions.

The next section discusses other issues such as how to measure damage claims. In a money damage case, how much of the damage can be directly attributed to the emissions from a company. Furthermore the author points out that the burden of proof of causation must be taken into account. Nearly all scientists agree global warming is real, and that GHG emissions are causing global warming but one must also prove that a particular storm or flood is indeed caused by climate change. Another hurdle that is mentioned, is the diversity of damages that can befall victims of climate change may result in difficulties for grouping the damages into class action law suits.

The article has also been published by the New York Law Journal. Thought this publication focuses on the U.S., many of the items listed in the article are likely to be relevant in other jurisdictions as well.

Thursday, September 22, 2011

Pacific state Palau seeking an Advisory Opinion from the International Court of Justice

President Johnson Toribiong
of Palau on a coast in Palau
(Image by 
The Pacific Island State of Palau recently announced it will request an Advisory Opinion from the International Court of Justice (ICJ), also known as the World Court. Palau would like to know whether countries are legally obliged to mitigate their emissions causing climate change damage elsewhere.

This could prove to be a precedent setter, because this may be world’s first international climate change case if it is taken to court.

Palau's President Johnson Toribiong is asking the ICJ if the “no harm rule” is applicable in the case that their island is sinking due to climate change. The no harm rule is a customary international law that states that state governments have an obligation to prevent harm to other countries, or control the risk there of. In this case environmental harm, namely that the governments of other industrialized countries are allowing corporations to release emissions into the atmosphere (or failing to control such emission). These emissions are contributing to climate change and global warming, melting the ice caps, raising the sea-level, and thus shrinking the livable space on the island, and thus causing harm to the citizens of the island of Palau.

More on this topic can be found here: http://theconversation.edu.au/see-you-in-court-the-rising-tide-of-international-climate-litigation-3542

Saturday, September 17, 2011

Comparison of U.S. and UK law

U.S. and UK Law Compared 
A comparison of U.S. and UK law arguments with regard to climate change litigation / climate damage litigation was recently published by UK Human Rights. The article contains a Eurocentric overview on the development of the legal debate in the U.S.

Just like the book on UK law by Giedré Kaminskaité-Salters we reviewed earlier, this article also compares how climate change is anchored within many existing laws in Europe but little litigation is actually brought to the courts. In contrast the U.S. has few laws on the subject but many cases, such as:
The article also writes a lot on the subject of the EPA’s role in climate change protection in the U.S. It also talks about UK and European NGOs such as ClientEarth and Friends of Earth.

Sunday, September 4, 2011

Punitive damages in BP oil spill case

A patch of oil flats polluting the shore
in Grand Terre Island, Louisiana.
(Photo by Lars Gange)
A judge in charge of several spill-related lawsuits against BP ruled that claims for punitive damages could be brought by fishermen and other plaintiffs alleging harm to physical property, in addition to the claims for compensatory damages.

Punitive damages are awarded to victims in order to penalize offenders and signal future offenders that engaging in similar conduct will occur large penalties. Punitive damages are often multiples times the amounts of the damages the victims occur, thus BP may be liable for more than the damage that they have created, and sends the signal that companies who maliciously disregard similar environmental damage that they create could be penalized with punitive damage cases.

We do not know yet whether this will set a precedent for climate compensation lawsuits.

Saturday, August 20, 2011

Climate linked Hurricane Katrina class action re-launched – new legalarguments

Home destroyed by Hurricane Katrina Gulfport, Mississippi
(Photo by Michele Sandusky)
Even after the dismissing ruling of the U.S. Supreme Court in the case American Electric Power Co., Inc. v. Connecticut ”climate damage litigation is far from over”, says one of the best blogs in our field. New theories will be put forward.

What is the proof that climate change litigation will continue? On May 27, 2011 an old Hurricane Katrina File, Comer v. Murphy Oil USA, Inc., was re-launched, this time with over 90 named corporate defendants: “… oil companies, utilities and coal companies, and chemical companies claims in three counts of public and private nuisance, trespassing and negligence. But it also includes, almost as afterthoughts, a strict liability claim and a conspiracy claim. It concludes with a count for a declaratory judgment that federal law does not preempt state law claims.”

The plaintiffs do not argue about climate policy, but just go for damage compensation. Damages include indirect ones like lower real estate prices and increased insurance rates. This is not the only innovative argument. The plaintiffs also argue that the defendants increased the risks of damages instead of simply arguing that the defendants caused the damages. And again the insurance rates are taken as an indicator.

Update: Read what Obama is doing about climate change

Monday, August 15, 2011

Overview on climate change litigation lawsuits in the U.S.

U.S. Supreme Court Building
(Image by Matt H. Wade)
The U.S. is currently leading in Climate Change litigation attempts. A U.S. law firm publishes and keeps up-to-date an inventory of climate change litigation lawsuits in the U.S. on the website climatecasechart.com.

A list of (so far all dismissed) climate change liability lawsuits in the U.S. can be found at climatelawyers.com.

An overview on recent trends with regard to climate damage compensation lawsuits in the U.S. can be found on the costalcare or chinadaily websites. The author notes a sharp increase of the number of climate-related lawsuits. Law firms react to the new market potential, and potential target companies attend specialized law seminars though no compensation claim has been successful so far.

Update: Read more about positive decisions in the U.S. such as with the Hurricane Katrina or BP oil spill case and and some negative results such as with the Comer v. Murphy Oil case.

Monday, June 20, 2011

U.S. Supreme Court rejects nuisance claim due to preemption on AEP v.Connecticut case

(Image by Claimer.org).  
On 20 June 2011, the U.S. Supreme Court ruled that the Clean Air Act and the empowerment of the Environmental Protection Agency (EPA) disables the use of the federal common law of nuisance to limit carbon dioxide emissions. This ruling does not affect law suits aiming to obtain monitory compensation for damages created through the release of those emissions. Therefor a chance of obtaining compensation for climate change damage claims in a U.S. court may still exist.

The Supreme Court's decision was nearly the same as the 2007 decision in Massachusetts v. EPA, where the court decided that the Clean Air Act give the decision making power for environmental affairs and the laws that govern it to the EPA. Thus their decisions over power federal common law rights to issue injunctions to stop fossil fuel powered electrical power plants from releasing carbon-dioxide emissions. If the EPA and their team of experts decide not to make laws to regulate carbon dioxide, then the courts have “no warrant to employ the federal common law of nuisance to upset the agency's expert determination.”

However, this ruling does not deal with the issue of compensation. Just as in the case of the Hurricane Katrina class action re-launch, damage claims can still be made.

A comment on the ruling of the U.S. Supreme Court to dismiss the case American Electric Power Co., Inc.. v. Connecticut can be found here. A breakdown of what this means for climate change lawsuits can be found at climatelawyers.com.

Update: read more about the next big case, the hurricane Katrina relaunch

Sunday, May 15, 2011

Liability under U.S. and Canadian law - references

University of
British Colombia Logo
A treasure of legal references mainly for U.S. law, but also to some extent for Canadian law is to be found in a May 2011 university paper from the University of British Colombia dealing mainly with a hypothetical strong case as a basis for analyzing the various issues of private climate litigation.

The author says: “Current law seems to suggest that liability is slightly less probable than not, but certainly not inconceivable.”

Complementary thereto, you might wish to read this legal article from the UCLA resuming arguments put forward in the U.S. debate on climate compensation lawsuits.

Sunday, May 8, 2011

Compensation law in the UK and in the Netherlands

The book “Climate Change Liability”, edited by Michael Faure and Marjan Peeters in 2011, gives an overview on compensation prospects in the UK and in the Netherlands. The authors also analyze the situation under international public law and European law. The book discusses the idea of climate change litigation as a concept, but also assesses how it has been done and how a similar case can be done and legally succeed in courts and is therefore also a good tool to base some legal actions on.

The first few Chapters the book discusses the role that national legal systems in the U.S. and The Netherlands can play. Later the author discusses how the same concepts can be used in the European Union, based on EU law, and court cases that are brought before the European Court of Human Rights (ECHR). This includes assessment of  the transparency of firms such as the 2004 Taskin et al. v Turkey case, where the ECHR concluded that a state must not only determine complex issues of environmental and economic policy, but also that decision-making process by the state must include sufficient investigations and studies in order to be able to predict and evaluate the effects. Therefore a state within Europe must ensure that relevant information is made available so that take the necessary precautions in assessing possible climate change damages.

In this book, in a broader context, the author warns about the urgency of acting now and bringing climate change law suits to court now. Global warming is no longer just a theoretical concept, but we are already starting to feel the effects of climate change all over the world. This is evident because and in the U.S. there are already law suits brought to court based on this premise.

Because of this urgency the author warns about the necessity of acting now, and examines how litigation can be used as a tool to stop and combat climate change. He believes that litigation may work, but considers laws to battle climate change, such as EU ETS, ex-ante tools and litigation law suits ex-post tools because laws would stop climate change before climate change takes place. Litigation is an ex-ante tool, because injunction court cases in the U.S. are based on current damages already caused by existing climate change effects, therefore climate change has already started taken place. The current law suits that are asking for damage compensation for damage created from climate change are also based on current damages. Concerned individuals and organizations must therefore start such actions now for litigation to be effective at combating global warming, because climate change has already begun.

Furthermore the author notes limitations in current cases inducing that currently, such litigation cases only have a few representative victims and a few defendants. Therefore a detailed record of damage claims would not only serve the purpose of evidence in the court, but would also create a basis for more fairly allocating the compensation. We at Claimer.org are collecting climate change damage claims on this link.

Sunday, February 27, 2011

Liability under German law

Chances for Climate Change
Litigation under German Law
(image by Gerd Altmann)
European Union law on applicable law and jurisdiction, or place that a case can be brought to court. In February 2011, the German lawyer Will B. Frank presents an English short version of an article on climate damage compensation previously published in a German law reviews NJOZ 2010, 2296 (German) and NJW 2010, 3691 (English). According to Frank, the causality between CO2 emissions and climate change would probably not be questioned by German courts, given that the vast majority of scientists assume such a causality. The long distance effect would not be an issue either. Frank basis this assessment on § 1004 sec.1, sentence 1 BGB (German civil law code). He claims that the plaintiff can request the abatement of the nuisance. If the abatement of the nuisance “at its source” is not possible, he may request measures that protect his property where the property is (for example by fortifying a dike-system against flooding). If these protective measures are not possible either, the plaintiff can request adequate monetary compensation, says Frank.

As to the applicable law and jurisdiction, or country where one can bring a case to court, Frank states: “According to the EU-harmonized rules of Conflict of Laws (Regulation EC/864/2007) and International Civil Procedural Law (Regulation EC/44/2001), a plaintiff can establish his claim in cases referring to environmental nuisance either on the Law of the “Handlungsort”, German for the place, where the act causing the nuisance is done, or the Law of the “Erfolgsort”, German for the place, where the nuisance occurs (Regulation EC/864/2007 Art 7 and Art 4 sec.1). The plaintiff has the same choice with respect to the court where he pleads (Regulation EC/44/2001 Art 5 no. 3).” Frank refers thus to directly applicable regulations of the European Union. If he is right in his assessment, European Union victims of climate change, such as towns struck by the rise in sea-levels, may sue CO2 emitting companies at their local court and under their local law. The victims can also choose any of the places where the companies emit CO2.

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