13.4.3 Litigation related to climate change

The authors of many technical articles point out that litigation is likely to be used increasingly as countries and citizens become dissatisfied with the pace of international and national decision-making on climate change (Penalver, 1998; Marburg, 2001; Weisslitz, 2002; Allen, 2003; Grossman, 2003; Verheyen, 2003; Gillespie, 2004; Thackeray, 2004; Dlugolecki, 2005; Hancock, 2005; Jacobs, 2005; Lipanovich, 2005; Mank, 2005). These authors argue that the possible causes of action in litigation include (1) customary law principle of state responsibility, (2) nuisance and the no-harm principle, (3) violation of international agreements including the WTO and the United National Convention on the Law of the Sea (UNCLOS) and the violation of human rights and (4) the abdication of authority by states to legislate on environmental issues based on the existing environmental legislation in the country concerned. However, they also emphasize that although there are often strong legal grounds for taking action, there may also be reasons for a strong defence.

Gillespie (2004) argues that if the international process is arguably not taking place in good faith, there is sound reason for requesting the International Court of Justice for an Advisory Opinion in this area, especially when the significant (potential) harm faced by small island states are taken into account. Jacobs (2005) and Verheyen (2003) analysed the potential case for a small island state actually suing the USA before the International Court of Justice. Burns (2004) and Doelle (2004) point out that non-ratification of the Kyoto Protocol could imply illegal subsidies to national industries under the WTO and pollution of the seas under UNCLOS. Hancock (2005) sees the potential for liability suits increasing and advises companies to disclose their emissions to the Securities and Exchange Commission as a step to limit liability. Issues of causality are being dealt with in the literature (Allen, 2003) and through precedent (Lipanovich, 2005).

There are currently a number of court cases in Kyoto Party countries, both developed (Germany) and developing (Nigeria), and non-Parties (Australia and the USA). For example, in Germany, NGOs have sued the export credit support agencies for not disclosing information on the GHG emissions of the projects they support in developing countries. (See www.climatelaw.org/media/german.suit). A similar case was filed in the US District Court for the Northern District of California, on August 26, 2002 by Friends of the Earth, Greenpeace and the city of Boulder, Colorado, which have sued the Export-Import Bank and the Overseas Private Investment Corporation under the National Environmental Policy Act, alleging that these two US government agencies had provided 32 billion US$ for supporting the finance and insurance of oil fields, pipelines and coal-fired plants in developing countries over the previous 10 years without assessing the impacts on the environment including global warming. A Federal Judge in California has ruled in favour of the plaintiffs.^[53]

In a case filed in Argentina, the plaintiffs allege a violation of Article 6 of the Climate Convention. In Nigeria, NGOs have sued the major oil companies and the state for continuing gas flaring, an industrial process which contributes about 70 million tonnes of CO₂ annually to global GHG emissions (Climate Justice Programme, 2005) and which is viewed as a violation of the Convention and the human rights of the local people.^[54] In Australia, NGOs have filed a suit against a minister for permitting a mine expansion project without examining the GHG emissions. See www.austlii.edu.au/au/cases/vic/VCAT/2004/2029.html.

There are two law cases in the USA where a coalition of states^[55] and environmental NGOs argue that the US EPA has the authority to regulate CO₂ and other GHGs as air pollutants under the Clean Air Act.^[56] In addition, eight US States, New York City and two land conservation trusts initiated a lawsuit in July 2004 against the five US power companies with the largest CO₂ emissions, on the grounds that these companies contribute to a public nuisance (global warming). That case, though dismissed by the trial court, is on appeal.^[57] Non-government organizations in Australia have also given notice to the major GHG emitters in the USA about their obligations under national and international law to reduce their emissions (http://www.cana.net.au/documents/legal/aus_fin_rev.doc). In July 2005, a wildlife organization sued the Australian Government for failing to protect the Great Barrier Reef (http://www.climatelaw.org/media/Australia.emissions.suit). A court case was filed in December 2005 by the Inuit people before the Inter-American Commission of Human Rights against the US government for human rights violations of the Inuit people’s way of life.^[58] There have also been cases that have challenged the allocation of emission allowances. With the entry into force of the EU Emissions Trading Directive,^[59] there has been some litigation in Germany that has challenged the manner in which the German Government has interpreted and transposed the directive into its National Allocation Plan in 2004.^[60] The courts have thus far decided that the Emission Allocation Law is in conformity with German law and with European rules on property rights.^[61]

While many of the these legal cases have not yet led to interim judgments in favour of the plaintiff, they do reveal there is a decided interest in pursuing the legal route as the means to pushing for action on climate change. These cases are based on a number of different legal grounds for doing so, but it may take some years before courts decide which, if any, of these grounds are valid.