AFTER COPENHAGEN CLIMATE CHANGE LITIGATION : HARRISON : UKELA : (2010) 22 ELM 213 After Copenhagen climate change litigation Kate Harrison Harrison Grant Solicitors, London 1. The significance of the failure of Copenhagen Before the United Nations Climate Change Conference in Copenhagen from 7 19 December 2009 (Copenhagen) Nicholas Stern wrote: Given what is at stake, essentially the future peace and prosperity of the planet, world leaders must now recognise that Copenhagen is the most important international gathering of our time. A strong political agreement can and must be reached in Copenhagen. There can be no excuses for failure. 1 The aim of Copenhagen was to achieve significant cuts in emissions, although most agreed that even those cuts would not be enough (ie 20% reduction below 1990 levels by 2020). The result was failure. One only needs to recall the final communiqué: The Conference of the Parties. Takes note of the Copenhagen Accord of 18 December 2009. 2 The Copenhagen Accord is full of warm words and intentions, but will not lead to cuts in emissions. The pre-conference activities of climate change sceptics and deniers, whose frantic efforts and, in the opinion of the author, seemingly disproportionate success in the run up to Copenhagen, have been well documented. However, leaving these activities aside, the main problem can be characterised as one of bridging a gap between words and intentions, on the one hand, and the urgent need for immediate action on the other. It is all too easy, given the short-term nature of democratic politics, to ignore a problem whose full consequences occur far away, either in the future or geographically. The recent General Election in the United Kingdom has revealed that tackling climate change is not high on the list of political priorities. On the other hand, and despite the fight back from the sceptics, there is now a clear consensus that climate change is happening and needs to be tackled through reducing greenhouse gases. Even the Copenhagen accord admits as much: 2. We agree that deep cuts in global emissions are required according to science, and as documented by the IPCC Fourth Assessment Report with a view to reduce global emission so as to hold the increase in global temperature below 2 degrees Celsius 3 If greenhouse gas emissions are not tackled then the consequences are dire. According to the IPCC s fourth assessment report the most significant effects of climate change by region can be summarised as follows: increased drought and famine in Africa; flooding, drought, starvation and disease in Asia; changed ecosystems in the polar regions; and devastation for some small islands. 4 With projections of damage such as these, and almost universal acceptance of cause and effect, an equally certain if not scientific prediction is that there will be an increase in climate change litigation. 2. Why climate change litigation? Climate change litigation however it is properly characterised is, from a campaigner s point of view, about forcing the issue where there has been a failure to act. Pursuing climate change litigation has various potential outcomes: it may result in success; it may formally fail yet succeed in highlighting and publicising the problem; it may result in abject failure and be a setback in the attempt to pin blame and/or responsibility, finally and definitively, on state or private entities. All these are possibilities which need to be considered carefully before litigation is embarked upon. However, whether or not it succeeds in its aims, climate change litigation has moved into the forefront of environmental campaigning. Inspirational cases have paved the way: for example, a case decided by the Philippine Supreme Court, Oposa v Factoran, 5 was a milestone in terms of environmental rights litigation. In this case, several minors, represented and joined by their parents, filed a class suit on behalf of themselves, others of their generation and succeeding generations. In their complaint, the minors asserted that their constitutional right to a balanced and healthy environment was violated by the approval, by the Philippine Secretary of the Department of Environment and Natural Resources, of timber licence agreements granting permission to licence-holders to log in the country s remaining forests. The Supreme Court explicitly recognised the novel element in litigating class suits for the protection of environmental rights. It decided that everyone, including minors, can sue not only for themselves and others of their generation but also on behalf of generations yet unborn. Following the Oposa ruling, the Philippine Congress enacted important laws relating to environmental protection. 1 Copenhagen Climate Conference: Emission Impossible The Guardian (30 November 2009). 2 Decision 2/CP.15 The Copenhagen Accord FCCC/CP/2009/11/ Add.1 p 4. 3 ibid p 5 para 2. 4 Intergovernmental Panel on Climate Change (IPPC) Fourth Assessment Report (2007), see http://www.ipcc.ch/ipccreports/ ar4-wg1.htm. 5 Juan Antonio Oposa and Others v The Honourable Fulgencio S Factoran, Jr and Another G.R. No101083, decided by the Philippine Supreme Court on 30 July 1993.
214 (2010) 22 ELM : UKELA : AFTER COPENHAGEN CLIMATE CHANGE LITIGATION : HARRISON The campaigning aims for environmental litigation to force mitigation measures against both states and private entities are ambitious. Friends of the Earth, for example, claimed in 2001: The tools of litigation provide an opportunity to make strong gains towards an acceptable level of convergence (the state where everyone in the world has access to an equitable share of carbon resources at a level that is safe for the atmosphere), where major emitters, both countries and industries, are held accountable for their excessive greenhouse gas pollution. 6 Whether that ambition is being realised, directly or indirectly, through litigation remains an open question. 3. United States litigation In considering climate change litigation it is important to look to the United States where there is a greater debate about climate change litigation and many more cases than in the United Kingdom. This is in part because litigation is more readily resorted to in the former, but also perhaps due to the US Government s reluctance, under the Bush administration, to take action to limit emissions. This presents us with the apparent paradox that the country with the largest carbon footprint is leading the field in innovative climate change litigation. Rather than a paradox, perhaps this is only the inevitable result of failure in the political sphere; if there were political commitment to take effective action there would be no need for litigation. If this is the reason for a flourishing number of climate change cases in the United States the failure at Copenhagen is bound to lead to more cases worldwide. In the United States, according to recent statistics there are 304 statutory claims: 48 aimed at forcing the government to act; 247 aimed at stopping government action; and 9 to regulate private action. Of the 247 claims to stop government action, 89 are challenges to the activities of coal-fired power stations. There are also about 10 common law claims, some of which may soon be decided by the Supreme Court and will provide important guidance for future litigation. The battle lines are being drawn on motions to strike out. In these proceedings what is at issue is still only confined to the possibility or suitability of asking a court to rule on responsibility for climate Campaigners may have felt that their best prospects lay with the Court of Appeal decision in the Connecticut v American Electric Power Co (AEP) litigation. This is a public nuisance lawsuit filed by eight State Attorney Generals, the City of New York and three land trusts against six electric power companies based on damage caused by greenhouse gas emissions. The District Court originally dismissed the lawsuit on the grounds that it presented non-justiciable 6 S Long Climate Change: Could Litigation Provide Equity Where the Kyoto Protocol is Failing? (2004) 29(2) Alternative Law Journal 92. political questions, finding that the case required identification and balancing of economic, environmental, foreign policy, and national security interest of a transcendently legislative nature. 7 However, the Appeal Court noted: Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coalfired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury. 8 Since the talk on which this article is based was given, on 2 August 2010, the defendants filed a petition for a writ of certiorari. To the dismay of environmental campaigners, the Obama administration has filed a brief in their support arguing that the Supreme Court should intervene on prudential grounds to limit numerous similar cases promoted by the Court of Appeal decision. The Solicitor General also argued that the Environmental Protection Agency has taken recent steps to regulate carbon-dioxide emissions as of 2 January 2011 and therefore the federal common law grounds for the litigation have been displaced. In a second environmental case, baroque court rules stymied a victory. The case of Comer v Murphy Oil USA started with a lawsuit brought by Gulf Coast residents affected by Hurricane Katrina. 9 Claiming that global warming contributed to the severity of the storm, the plaintiffs sued dozens of the nation s largest polluters: utilities, chemical companies and the oil industry. At first instance the case was struck out. On appeal the court held that the defendants could be sued. However, in a decision which, for this English lawyer is hard to understand, it would seem that so many judges recused themselves from the en banc hearing, on the grounds of conflict of interest, that the court no longer had a quorum. The court refused to allow a hearing before the original three-judge panel and instead dismissed the appeal, thereby reinstating the District Court s decision. Unless the Supreme Court intervenes to direct the Court of Appeal to reinstate the appeal and render a decision, the restored District Court ruling holds that the plaintiffs lack standing for a lawsuit because the ties between emissions, global warming and the severity of Hurricane Katrina were too tenuous. 10 The villagers of Kivalina suffered a similar fate at the District Court level and have filed a brief in the Court of Appeal. This case concerns a claim for damages suffered by the plaintiffs as a result of the global warming caused by the defendants (18 energy companies) actions. 11 Kivalina 7 Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005). 8 ibid 582 F.3d 309 (2d Cir. 2009). Petitions for re-hearing were denied on 5 March 2010 and 10 March 2010 (Pet. App. 188a- 191a). 9 Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010). 10 See Petition for Writ of Mandamus filed with the Supreme Court by the claimants.
AFTER COPENHAGEN CLIMATE CHANGE LITIGATION : HARRISON : UKELA : (2010) 22 ELM 215 is located on the tip of a six-mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska, 70 miles north of the Arctic Circle. Kivalina residents are Inupiat whose ancestors have occupied the area since time immemorial. Global warming, through the melting of sea ice that protected Kivalina from harsh storms, is destroying Kivalina and the village must therefore be relocated soon or be abandoned and cease to exist. The US Army Corps of Engineers and the US Government Accountability Office have both concluded that Kivalina must be relocated due to global warming and have estimated the cost at between US$95 million to $400 million. The political debates in the United States have changed, and the visible spectacle of environmental damage in the Gulf of Mexico has clearly increased the drive towards clean energy; it will be interesting to see whether this brings about a change in attitudes towards the less visible effects of fossil fuels. 4. Post-Copenhagen litigation Turning away from the United States experience and back to the world post-copenhagen, if litigation is a last resort, which arguably it should be, the failure of Copenhagen to deliver effective political action will inevitably lead to an increase in that litigation. The Copenhagen conference ended in December 2009. During the conference President Mori of the Federated States of Micronesia (FSM) said: We are not certain if our biggest threat is from ocean acidification that will erode our islands from underneath, or from sea-level rise that could submerge our islands under the sea, or from changes in weather and typhoon intensity that could make inhabiting our islands impossible. But we know that our continued peaceful existence is totally at risk. We know that the enemy that gives rise to these threats is climate And we know that to survive, we must act now. 12 In January 2010, the FSM requested a transboundary environmental impact assessment of the expansion and extension of a coal-fired power plant in the Czech Republic. This is the first request of its kind, but it is hoped that other small island developing states (SIDS), individuals and/or organisations from these countries will consider similar claims as they fight for survival in the face of climate Through the request, which was granted, the FSM demonstrated the connection between corporate polluters and the most vulnerable and affected peoples. It shows that governments have a responsibility to take into account the impact of decisions beyond national boundaries. 11 Native Village of Kivalina v. ExxonMobil Corp., District Court Case No. 08-cv-01138 SBA. 12 Address of President Mori of the Federated States of Micronesia 16 December 2009, see http://www.fsmpio.fm/speeches/mori/ Copenhagen_Statement.pdf. The sad postscript to this initiative is that, despite the FSM intervention, the Czech Government decided to approve the environmental impact assessment which, although not the permission itself, would ease the path to a permit being issued. Further action seems likely. Before looking at the United Kingdom and the state of its climate change litigation, it is worth considering other directions in which this kind of action, legal action by threatened states, might move. One possible direction is hinted at in the FSM president s statement. CO 2 emissions result not only in a rise in sea levels, but also in the acidification of the sea. Acidification is not, strictly speaking, an effect of climate change but it is a more direct and provable consequence of the emission of CO 2. The United Nations Convention on the Law of the Sea (UNCLOS) provides the basis of prohibition and the mechanism for remedy by and against ratifying states. Under Article 194.2 the Convention requires states to ensure that actions under their jurisdiction and control are so conducted so as not to cause damage by pollution to other States and their environment. Under Article 235: States are responsible for the fulfilment of their international obligations concerning protection and preservation of the marine environment. They shall be liable in accordance with international law. Although the complaint by one state against another is a serious and confrontational move, as SIDS have their very existence threatened we can expect it to play a part in the intensifying move towards holding the major polluters accountable to the vulnerable sufferers. International human rights law will also play a part. In January 2009, the Office of the High Commissioner for Human Rights examined the relationship between climate change and human rights and concluded that: climate change threatens the enjoyment of a number of human rights climate change does not necessarily violate human rights human rights law places duties on states concerning climate change those duties include an obligation of international cooperation. 13 In light of these conclusions, it seems likely that states suffering most critically from the effects of climate change will seek to explore and enforce the duties imposed on states under human rights law. 5. Climate change litigation in the United Kingdom So what of the United Kingdom after Copenhagen? Environmentalists have to date focused their campaigns on new infrastructure which would, if approved and built, 13 OHCHR Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship Between Climate Change and Human Rights UN Doc A/HRC/10/61 (15 January 2009).
216 (2010) 22 ELM : UKELA : AFTER COPENHAGEN CLIMATE CHANGE LITIGATION : HARRISON result in an increase in greenhouse gases. Proposals for new coal-fired power stations and expansion in aviation, either through new runways or an increase in airport capacity, have provided the major challenge for multilayered campaigning, some of which has included or resulted in legal action. Not all the legal action has been through choice and sometimes the campaigning cases can be characterised as reactive rather than proactive. Ironically perhaps it has been the reactive cases that have resulted in the most publicity. The expansion of aviation provides a particularly interesting case study, involving as it does the growing realisation of the effects of a particular industry on climate change, coupled with an already well organised lobby focused on a more immediate and obvious form of environmental damage air pollution and noise. In 2003, the previous government produced its Aviation Transport White Paper, with its support for airport expansion at airports including Heathrow, Gatwick and Stansted. At that time flying and greenhouse gases were not linked in the popular perception. However, after seven years of focused campaigning that has changed. Litigation has played its part in this In 2007, Climate Camp chose Heathrow as its site for activism. Heathrow Airport Ltd responded to the well publicised plans by applying for a wide-ranging injunction against named individuals, Plane Stupid and Airportwatch (an activist group which included, directly or indirectly, most of middle England). The injunction, granted without notice and possibly in the middle of the night, extended to the Piccadilly Line, parts of the M25 and common land around the airport. The wording was so wide and the ambit of the organisations sued was so many that even the judge who heard the case had to declare an interest as a member of the RSPB and a supporter of the National Trust. It was summer and the news was slow. The largest court in the Strand was full to bursting. The press were there in force when, at the start of the case, the claimants sought to demonstrate to the court that the defendants were truly to be feared by running films of their interviews, explaining the dangers of climate change and the causal link to aviation. The campaigners could not believe their luck: three rows of journalists in court being forced to listen to the arguments for linking aviation with climate change and the damage that climate change was causing. Pages of articles ensued and, long after the case was over, there was continued public interest in the Climate Camp, which was unsensationally peaceful in contrast to the wild claims behind the injunction. In legal terms the result was mixed: the injunction applied for was not granted but those defendants who had a previous history of direct action undertook to steer clear of Heathrow for the week. In publicity for the cause it was an outright win for the climate protestors. At the very least, aviation and climate change were linked in the public mind. Similarly, prosecutions taken against Greenpeace protestors for painting GORDON on a chimney at the Kingsnorth coal-fired power station resulted in another example of reactive climate change litigation. (Protestors intended to paint Gordon Bin It but an injunction was served and obeyed before the work was finished.) The protestors were charged with causing 30,000 of criminal damage to the chimney but were acquitted by a jury at Maidstone Crown Court after raising the defence of lawful excuse. The finding meant that the jury, having heard evidence from the defendants and from eminent climate scientists, concluded that: the defendants caused damage in order to protect property belonging to another the defendants believed the property was in immediate need of protection the defendants believed the method of protection adopted was reasonable in all the circumstances. The property in question, incidentally, was property around the world including those parts of the world most vulnerable to but unable to take action against climate A later trial, in July 2009, focused on the 22 climate change protestors who had stopped a train carrying coal bound for the Drax power station in North Yorkshire. The protestors were charged with obstructing a railway. An attempt to raise the defence of necessity on similar grounds and with the same expert evidence failed. The judge ruled: Evidence concerning the burning of fossil fuels and global warming is inadmissible. To rule otherwise would allow these defendants to hijack the trial process just as surely as they hijacked the coal train. I am no longer a criminal lawyer, but it does seem to me wrong, contrary to basic legal principles and ultimately impossible to rule out of court evidence about why those on trial acted as they did. It seems likely that, in 2010 and beyond, there will be more cases testing the limits of protest and individual action in the face of the damage, injury to health and death resulting from the effects of climate Decisions to approve or support aviation expansion have provided the most fruitful area of climate change litigation so far. The government decision to confirm support for a third runway and sixth terminal at Heathrow, the Secretary of State s approval of expansion at Stansted and Newham Council s decision to expand London City Airport are or have been subject to judicial review or statutory appeal. The Stansted decision was the first to come under scrutiny. 14 The challenge was made by way of a statutory appeal under s 288 of the Town and Country Planning Act. One of the grounds was that the Secretary of State had failed to take into account the effect of greenhouse gases. The City Airport decision is being challenged by way of judicial review. A hearing date has been set for November 2010. Once again, failure to take into account climate change is a part of the case. 15 14 Barbone v Secretary of State for Transport [2009] EWHC 463 [2009] Env LR. 15 R (Griffin) v Newham Council and London City Airport (ongoing).
AFTER COPENHAGEN CLIMATE CHANGE LITIGATION : HARRISON : UKELA : (2010) 22 ELM 217 Leading national environmental groups as well as local authorities were among the eleven claimants in the Heathrow case. The case tackled government policy rather than any planning decision and climate change was a central element of the case. The thrust of the argument, which evolved somewhat as circumstances changed, was that the decision to give the go ahead to a third runway was inconsistent with the government s own pledges for action on climate change, in particular the pledge to reduce overall emissions by 80 per cent and to bring aviation emission to 2005 levels by 2050. The ruling, which was the first to consider the Climate Change Act and the Planning Act (both 2008), made it clear that the Climate Change Act, including its commitment to 80 per cent reductions in emissions, must be considered before the then government produced its airports National Policy Statement. The ruling was reinforced with a requirement for the government to give an undertaking not to use s 12 of the Planning Act as a means for adopting the old 2003 policy. The judge said: common sense demanded that a policy established in 2003, before the important developments in Climate Change policy, symbolised by the Climate Change Act 2008, should be subject to review in the light of these developments. 16 The claimants case included that Heathrow expansion was incompatible with climate change targets, both generally and for aviation in particular. Although Lord Justice Carnwath thought the courts were not the place to resolve the technical debate on aviation and climate change, he did accept that the climate change case add[s] up... to a powerful demonstration of the potential significance of developments in climate change policy since the 2003 White Paper. They were issues that would have to be taken into account in the development of the airports National Policy Statement. The government that approved Heathrow expansion has gone, and the present government has firmly rejected a third runway and sixth terminal. It remains to be seen whether there will be any new government policy on aviation and climate As well as airport cases, there has been a creative challenge brought by the World Development Movement and others against the Treasury for permitting the part state-owned Royal Bank of Scotland to invest in climate unfriendly projects in breach of government policy requiring climate change impacts to be considered. Following the Heathrow decision, the importance and relevance of climate change considerations in decisionmaking are bound to figure in public law litigation. Of course it is not just environmentalists who have used litigation to further their cause: at the EU level there have been challenges to the Emissions Trading Scheme (ETS); and in the United Kingdom the American aviation industry has challenged the lawfulness of regulations made under the EU Directive to include aviation in the ETS. Six environmental groups from the United States, Belgium and the United Kingdom have been given permission, as a group, to intervene. The environmental groups will be arguing in support of European and government measures to combat climate Neither is the climate change debate itself immune from litigation; in a case financially backed by Viscount Monckton, a leading climate change denier, the distribution of Al Gore s film An Inconvenient Truth was challenged under the Education Act and was partially successful in the High Court. 17 Climate change debates have also figured large in disputes and decisions in other places. The Advertising Standards Authority has provided a forum for both environmental campaigners and deniers (Future Heathrow was told it could not say A third runway won t make Heathrow any noisier or dirtier, the Department for Energy and Climate Change had most of its Act on CO 2 adverts upheld, but was told that the claim Extreme weather events such as storms, floods and heat waves will become more frequent and intense should have been phrased more tentatively). Ofcom entertained complaints against the Channel 4 film The Great Global Warming Swindle, some of which were upheld. The Information Commissioner has recently decided that, for the purposes of the Environmental Information Regulations, information relating to CO 2 counts as information relating to an emission. This is important because it restricts the grounds on which disclosure of information can be refused. 6. Conclusions What lies ahead, as the damage and injury caused and threatened by climate change becomes ever more apparent, is further litigation. It would appear beyond doubt that, as the science further develops and understanding improves, there will be litigation victories in tort and human rights law which will succeed in pinning responsibility on private and state actors. This prediction for tort law is a view reinforced by specialists in this field, who have confirmed that, although the circumstances and the facts may be new, tort based action against greenhouse gas emitters does not require any radical extension to basic and well established principles of English law. Human rights law, which has not been considered in depth here, provides yet further scope. However, it seems that such litigation success, if indeed it is a sign of collective failure to act soon enough, might, for many, be too late. 16 R (Hillingdon & Ors) v Secretary of State for Transport [2010] EWHC 626 (Admin). 17 Dimmock v Secretary of State for Children, Schools and Families [2007] EWHC 2288.