Monday, October 28, 2013

Relaunch the Kivalina case outside the U.S. - Why U.S. attorneys should enlarge the playing field of climate change litigation

The Alaskan Island of Kivalina sinking because of rising
sea level, while the U.S. Supreme Court does nothing
U.S. attorneys were the worldwide environmental law pioneers by suing CO2 emitting industries for compensation. Almost all “real” cases on compensation for climate change damages took place in the U.S. Despite excellent preparation and documentation of damages, these lawsuits had no success so far, the most famous of which being the Kivalina v. ExxonMobil case. And prospects for success look rather dire at the level of the nation state. A very detailed analysis about the Kivalina case can be found here. In response thereto, U.S. attorneys are now turning to States Law of the U.S. This is an understandable strategy. But is it the most promising?

Alternatively, U.S. attorneys could enlarge the playing field by investigating legal possibilities for their clients in other jurisdictions outside the U.S. has investigated legal possibilities for climate change compensation worldwide. In absence of real cases on climate change compensation, it did so by reviewing available civil law publications and by analyzing the civil law codes.

At we applied mainly two criteria when evaluating jurisdictions:
  • Likelihood of negligence being assumed for climate damaging industries;
  • Likelihood of joint and common liability being assumed (proportionate compensation is hardly of any interest to victims of climate change as no company individually contributes more than 2 % to the overall CO2 emissions; and even if joint and common liability doesn't get accepted in climate change cases, states with a joint-and-common-liability tradition are certainly more open to intermediate theories).
In addition to these two main criteria, we at highlight specific elements on this blog playing against or in favor of successful climate change compensation lawsuits, such as special rules on the burden of proof or on class actions.

The picture gained from reviewing the publicly available sources and civil codes is the following:
  • According to publications specialized on climate change compensation, comparatively good chances exist for obtaining climate change compensation in India and in Brazil. According to our investigation of the Brazilian Civil Code, Brazil is indeed interesting in so far as it is particularly generous as to the level of negligence required and even establishes strict liability. However, it is not sure whether Brazilian courts would stipulate a joint and common liability for CO2 emitting industries.
  • We also has also investigated and wrote in this blog about the Civil Codes of Mexico, Argentina, Uruguay, Venezuela, Peru, Colombia, Ecuador, and Chile. In Mexico, Argentina, and Uruguay, there are no chances for success. But in Venezuela, Peru, Colombia, Ecuador, and Chile chances for success look astonishingly good. Furthermore, Colombia, Ecuador and Chile do recognize class actions.
  • In Europe and Australia, chances for success (both according to literature and's own investigation) are not better than in the U.S. Quite evident dogmatic obstacles can be identified for almost all states investigated. But there are two exceptions: the Netherlands and Sweden. Both states have a joint and common liability system. And both states have relatively low hurdles for demonstrating negligence. Furthermore, the law of the Netherlands seems to recognize statistical evidence for causality – this is anything but granted in the European context. In Sweden, there is the possibility to launch class actions – very much an exception on the old continent.
Going forward
What would need to be done if a U.S. attorney reading this article wished to check out possibilities in Latin America, Sweden or the Netherlands?

In the case of Latin America, suitable defendants have to be identified and the international private law to be examined in a view of these defendants: does the international private law of the respective country provide for the possibility to sue the defendant in relation to a damage that occurred in the U.S. and for a claimant with residence or place of business in the U.S.? is confident that the answer will be positive for defendants causing CO2 emissions in the respective Latin-American state. It is a common principle of international private law that the place of the tort action is, regardless of the place of residence or business, recognized as forum, and Articles 167 and 168 of the Latin American Convention on International Private Law (see extract below) look very much as abiding to this principle. It is less likely (but not excluded either) that some Latin-American states are a forum for more complex situations. E.g. it is to be investigated if in these states a company can be sued when its mother or daughter company caused damages by activities outside the very Latin-American state.

Extract of the Latin American Convention on International Private Law
Spanish originalEnglish translation
Art. 167. Las (obligaciones) originadas por delitos o faltas se sujetan al mismo derecho que el delito o falta de que procedan.Article 167. Those (the obligations) arising from crimes or offenses are subject to the same law as the crime or offense they come from.
Art. 168. Las (obligaciones) que se deriven de actos u omisiones en que intervenga culpa o negligencia no penadas por la ley, se regirán por el derecho del lugar en que se hubiere incurrido en la negligencia o la culpa que las origine.Article 168. Those (the obligations) arising from acts or omissions involving fault or negligence not punishable by law are governed by the law of the place in which incurred the negligence or fault that caused them (the obligations).

For the Netherlands and for Sweden, has established some documentation that might help to find suitable defendants. The international private law of these states, harmonized by European Union law, provides for the possibility to sue, regardless of the place of residence / business of the claimant or the place of damage, provided that the defendant contributed to the damage by action on the territory of the European jurisdiction or that he has his place of business therein. See the respective section on “Forum” in this article on the Netherlands.

To conclude: It would be regrettable not to use in other jurisdictions the tremendous pioneering investment made by U.S. attorneys in the field of climate change litigation. Climate change, being caused by activities of companies around the world, offers many more possibilities for litigation than the one targeted by U.S. attorneys so far: U.S. victims against U.S. polluters under U.S. law. A thorough investigation of the civil law and the international private law of presumably favorable states and a careful selection of defendants in these states might pave the way for successful lawsuits in other parts of the world; and finally for compensation so much expected by the U.S. victims of climate change. To be provocative: even the Kivalina case could be relaunched in a Latin-American state where the defendants have or had business activities.

Would Latin-American courts dare to impose substantial compensation obligations onto big business? Not necessarily, but some do, see the Chevron case in Ecuador! This is admittedly also a case in which corruption plays a role. But corruption is not much of a topic in many other Latin-American states and almost not at all in the Netherlands or in Sweden


Thursday, October 24, 2013

5th IPCC report: what's in it for climate change litigation?

Chart containing estimated likelihood of human contribution affecting 
climate change events 
The first part of the 5th IPCC report has been released in the 2nd half of September 2013. It is aiming at indicating the big trends for policy makers. We checked whether some conclusions can be drawn from the first published part for climate change litigation and, more precisely, private law climate change compensation claims.

We start the lecture with the annexes as they contain more precise information. The report makes, in an annexed chart on page 23, assessments on the likelihood of various types of weather and climate modifications (a) to take place and (b) to be attributable to mankind. The report says that the temperature increase is very likely to be attributed to mankind. The higher magnitude and frequency of extreme high sea levels is likely to be attributed to mankind. For heat waves, scientists have only a medium confidence that they really occur more frequently on a global scale, but the likelihood is higher in certain regions. As to the attributability, it is said to be likely. This means that only for certain regions damages due to heatwaves can with likelihood be linked to man-made climate change. For other types of weather and climate modifications than those listed so far, there is even less likelihood regarding occurrence and attributability to mankind.

In the footnotes l and m to that chart (on page 24) and in the chart on the next page of that report (on page 25) there are statements on the average rise of the mean sea level. The IPCC says the sea level rise to be very likely. It indicates a range as to the magnitude of the likely future sea level rise. The rise of the mean sea level and the equally evident melt of ice are both also extensively dealt with in the core text from page 3 onwards. The IPCC report can thus well be used to underpin damages directly linked to the rise of the mean sea level (like loss of land in deltas) and damages linked to the melting of ice or higher temperatures in general. The generally higher temperatures are dealt with on many pages across the report.

The overall trend and findings of this report can best be resumed by the following quote of page 12:
“Human influence has been detected in warming of the atmosphere and the ocean, in changes in the global water cycle, in reductions in snow and ice, in global mean sea level rise, and in changes in some climate extremes” 
 (see the charts referred to above on page 24 of IPCC report).
“This evidence for human influence has grown since AR4”
 (AR = Assessment Report).
“It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.”

Read the full report here:

Related: NGO CDP disclosing data on the CO2 footprint of 500 big companies

Sunday, October 20, 2013

The right to a healthy atmosphere in climate change compensation litigation

Every drop counts towards the right to clean water
could this principle be used for climate change litigation?
Andrew Gage, staff lawyer of the (Canadian) West Coast Environmental Law blog, puts forward a new argumentation in favour of climate change compensation litigation. He argues that the English and Canadian courts commonly recognize the right “to the naturally occurring flow and quality of water past their property”. The fact that a single polluter upstream does not cause a harm by his pollution alone does not hinder his liability, according to the courts. This rule even applies when there are no other polluters yet. The right “to the naturally occurring flow and quality of water past their property” is even infringed if there is no proof of causality between the incriminated act of pollution and a concrete damage. All this is said to be common case-law, says the author.

In analogy to this argumentation, the author states that a “right to a healthy global atmosphere” could be asserted. If the case-law developed for water could be transposed to the climate change litigation, the issues of causality and attributability could be leapfrogged, hopes the author. Causality and attributability are core obstacles to climate change compensation lawsuits in many legal systems. cannot assess whether it is viable under Canadian, English or any other law to assert a “right to a healthy global atmosphere”. However, we find that our readers should be informed about the possibility to argue in such way. The argumentation put forward is different from the “public trust doctrine” referred to under U.S. law.

Related: Read more about Canadian Environmental law, and other North American Law with regards to climate change litigation.

Saturday, October 12, 2013 environmental damage registration software improved

(Image releases new version
of damage registartion software improved its damage registration software. This software is mainly intended for climate change damages, but can also be used for other environmental damages. The design of the admin interface was adapted to the common database design. Thereby the presentation became more user friendly. The number of search filter options was increased. All filter criteria can now be combined. It is possible to indicate minimum and maximum values for most filter criteria.

What distinguishes this method of registration from most climate change registration software and databases is that it can be used to log damaged for individuals rather than only for cities or states. This way the damage caused by climate change contributors can be tracked down to the individual claim. These damage claims can be used in legal actions such as litigation law suits against companies contributing to climate change by producing greenhouse gases.

Combining such registration software with such legal actions can be a great deterrent for climate change.

To see our demo version of this registration software, please click here. To check the (free) licencing conditions, please click here.

To download the registration software including the source code, please click here.

Related: read more about the types of legal actions that can be done when such information is registerd