Monday, May 28, 2012

Identifying potential defendants in climate damage litigation cases

Identifying the right defendants
for climate damage litigation
How to identify appropriate defendants for climate damage litigation?

When attempting to take legal action against an environmental tortfeaser, the most important reflection, has to take place at the level of the applicable law, or sets of applicable laws and thus the place of jurisdiction. Different jurisdictions can have widely different applicable laws and therefore drastically different results for a climate change litigation lawsuit. Therefore we present and compare information on the legal systems all around the world on this blog. Before someone identifies an appropriate defendant they should check if the specific defendant can be sued in a legal system which provides relatively high chances of success.

The second most important reflection is the selection of the best defendants amongst those companies which can be sued under a certain legal system at a certain place of jurisdiction. This selection can be based on the current annual CO2 emissions or on the multiannual contribution that the respective company has made to climate change with CO2 emissions over the last years or decades.

Plaintiffs might also choose to combine these two criteria. Finally, plaintiffs might refer to the overall climate change contribution of the company group (e.g. of all companies labeled "Shell").

A lawyer might prefer suing companies that burn fossil fuels directly themselves (like power plants) instead of “just” refining them (like refineries).

This website focuses on researching the potential to successfully using climate change litigation, to battle global warming. In this context, we present here links that might help plaintiffs to identify potential appropriate defendants worldwide in those two categories:

A. Power stations / power plants

B. Refineries

Please note:
  1. Once a plaintiff thinks having identified the appropriate defendant, their lawyer should undertake additional research on the exact legal identity and the place of business. The legal entities in charge of a certain power station or refinery might have changed over time (e.g. through mergers and acquisitions). In certain cases, it might be necessary to sue both the mother and the daughter company in one strike.
  2. In some legal systems, the fact that a certain company belongs to a big multinational company will not matter. In others the daughter company might be liable for the doings of the mother company as well. In case of doubt, assume the first
  3. In theory, it is possible to sue a company in another state than its place of business. It might be recommended, in case of doubt, to avoid this complication by suing in the state where the place where the place of business is. This avoids problems at the level of execution of a positive court decision.

Sunday, May 6, 2012

Climate change hitting insurance industry twice? U.S. courts to accept climate damage compensation?

Climate Change Litigation Possibly Hitting
the Insurance Industry Twice
The insurance industry might be hit twice by climate change: first by climate change damages and second by an increasing number of climate damage litigation cases. This is the key message of a recent article which is based on a report published in September 2011 by a coalition of investors and environmental groups “Ceres”. “Insurers could be sued both by emitters that are trying to pass on liability, or by investors claiming they did not adequately disclose risks to the market”, says the article and refers to a study of Deutsche Bank according to which there were more than 132 climate-related lawsuits in the U.S. In 2010. Ceres and the article claim that the reinsurance world market co-leader Swiss Re tries to convince its U.S. business partners to take a more proactive approach – with little success so far. Only 11 out of 88 U.S. insurance companies investigated had climate change policies.

Ceres recognizes that it is today difficult for plaintiffs to win climate damage compensation cases. Besides the issue of causality, the “political question doctrine” is regarded as an obstacle by U.S. courts. But the courts might change their view if Congress holds back the EPA from further engaging against climate change. If this happens, the political question doctrine would not apply anymore. Furthermore, the article refers to the past battles on asbestos and tobacco. Decades of legal fighting preceded the settlement and $265 billion pay-outs on asbestos, compared to which climate change litigation progresses pretty fast nowadays. At the end of the day, no causality proof was requested by courts ruling on tobacco damage compensation: liability arose from the fact that companies suppressed evidence on risk.

Update: see an overview of the latest state of U.S. climate change litigation