(From the archives) Originally posted on August 25, 2008 by markdowe
1.
CLIMATE CHANGE AND REMEDY
THE KYOTO PROTOCOL, a climate change treaty that spanned over a decade in an attempt to reduce greenhouse gas emissions, is perceived by some climate scientists as an ineffective waste of time and energy. The biggest polluters on the earth, the United States and China, both failed in ratifying Kyoto which, had they done so, would have seen a vast improvement in how global warming could have been tackled and managed.
The only effective way in dealing with the threats and risks posed by climate change is through legal enforcement and wider use of the courts. Science appears more than capable in linking climate change as a probable cause of deadly weather events which the world has experienced in recent years – such as the heat-wave that hit Europe during the summer of 2003. If this is the case then global warming becomes a matter for product liability law.
The threat of judicial arguments in an attempt to resolve the scourge of climate change should, if nothing else, force many companies to radically change their behaviour than any government policy ever could.
Pinning individual weather events on climate change
Scientists usually purport that we can’t attribute individual weather events to climate change. But, the example quoted of the 2003 European heat-wave, should have been the first weather event where that link could have been made. That event, particularly within European latitudes, was probably a one-in-a-thousand year event. The immediate effect was a series of anticyclones over Europe. We can’t say those were made more likely by climate change but, what we can say, is that climate change made the background temperatures within which those anticyclones operated that much higher. This, surely, goes central to what the problem is.
Small changes in averages make extreme events much more likely. The 2003 heat-wave was far outside the range of normal climate uncertainty. Scientists and environmentalists say that there is 90% certainty that the risk of such a heat-wave in Europe has at least doubled as a result of climate change. More recent estimates (Myles Allen, University of Oxford) suggest that is probably a four to six-fold increase. The finding of a “doubled risk” is significant because established legal precedent holds that this is the threshold on which civil liability sets in. The argument remains, therefore, that lawyers must have a case against those people and companies who caused and exasperated global warming. In 2003, the heat-wave claimed the lives of 30,000 people. Whilst most who died were older people, fewer than a quarter would have died in the following year. If such a scale of deaths had been due to the toxic effects of a drug or chemical spill, lawyers and the courts would have been swiftly involved. Suing the big oil companies, for the environmental damage and degradation they have caused, seems, now, only a matter of time before such organisations are subpoenaed. Legal redress seems the only rational way forward.
At the time of the European catastrophe, many people blamed the healthcare services for not being prepared. That, too, seems a bit irrational because how many sectors in society can cope with a once-in-a-thousand year event? The real culprits are the 20 or so coal and oil companies that we know have been responsible for 80% of carbon dioxide emissions.
Statute
If the lawyers attempt to go for product liability, then everyone down the supply chain would be liable: the company that sold you the petrol, the oil company that pumped it out of the ground, and the showroom that sold you the car that burnt the fuel. But, if it is said to be an industrial waste issue, then the polluter pays. That might be the car driver.
Previously, actions have already been taken against greenhouse gas polluters under public nuisance and human rights legislation. But, none as yet, has alleged actual harm. That could become a critical moment if proven and, yet, could be over something quite trivial, like someone in Alaska suing an oil company because their conservatory subsided as the permafrost melted. Legal precedent could have huge implications if harm was ever proved but an effective way to tackle and deal with climate change.
Knowing the harm
In order to successfully sue an organisation, you have to show that they knew the ‘harm’ in what they were doing, and went ahead with it anyway. But, the question underpinning causation is, at what point in history did the impacts of climate change become foreseeable? Should it, for instance, be 1896, when Svante Arrhenius first calculated the greenhouse effect? Or, when the Intergovernmental Panel on Climate Change (IPCC) first reported it in 1990? Of course, up until the recent signing of the Climate Change Bill by President Bush, the United States has never accepted climate change as being foreseeable at all. If 1990 is accepted as the start date for ‘foreseeability’, then companies can get away with some of their past emissions. By 2030, more than half of the excess greenhouse gases in the air would have been emitted since 1990. The concept of foreseeability will, therefore, rapidly diminish.
Whilst this approach is very different to that of Kyoto and of national emission targets, the legal route would have much more impact on the use of fossil fuels than any conceivable formula devised by government.
Ironically, though, when government’s started to make attempts in regulating carbon dioxide emissions – as the British Government has done for some time – then the companies producing them are given a defence: that their government had acted, so they didn’t have too. Such an argument, largely, mitigates responsibility.
Pursuing the legal option
Kyoto’s decade-long negotiations over a 2% reduction in emissions by industrialised nations, was hardly an initiative that got very far. The legal option remains a credible and viable alternative particularly as the science can now predict and forecast with some certainty what must be done to prevent further environmental degradation.
Most climate scientists do not like the liability idea. They believe that action on climate change should be a managed and sequential process. It’s certainly true, though, that the law can be unfair and arbitrary in its effects and application. Rich people might get settlements, whilst the poor would not. But, the conventional approach introduces, inherently, its own injustices. Besides, the ultimate goal is, primarily, to cut carbon emissions, not to win compensation or financial recompense.
Just the possibility of legal action would have a big effect. Climate change, if it hasn’t already, would become an even bigger issue at boardroom level. Look, for example, at the impact on share prices when a threat exists of legal action against food companies over obesity. 12-years of climate negotiations have not had the (same) effect as it should have had. The threat of being pursued with legal action and/or enforcement remains the only effective way to enforce company compliance if nations are ever to sustainably reduce carbon emissions. The introduction of an international court, too, seems logical.
Science
We still need to work much harder by showing how greenhouse gases are altering our world. Although climate scientists should be commended for spending large chunks of time and using vast resources in predicting what might happen in a hundred years time, we should also be focussing on helping today’s victims.
Interestingly, a research group headed by Myles Allen (Oxford University), previously, compiled reports of how the weather today would have looked without climate change. The modellers described it as it was, and as it might have been. The American legal community was interested in this research because, in 2000 – the year the reports were compiled – the weather was very dry. Reservoirs emptied and there were ‘brown-outs’: electricity in short supply from hydro sources. Allen’s research models could, yet, become the basis for legal action.
International Court for the Environment…
(From the archives) Originally posted on December 6, 2008 by markdowe
2.
REGULATION & ENFORCEMENT
STEPHEN HOCKMAN, QC, a former chairman of the Bar Council, has called for the establishment of an international court for the environment to punish states that fail to take adequate measures in protecting wildlife and in preventing climate change. Mr. Hockman proposes a body similar to the International Court of Justice in The Hague to be the supreme legal authority on issues regarding the environment.
Underpinning the role of such a body would be to enforce international agreements on cutting greenhouse gas emissions to be set and agreed upon next year. The court would fine national governments or individual companies who fail to take adequate measures in protecting endangered species or through wanton neglect and degradation of the natural environment. Enforcing the “right to a healthy environment” seems the next logical step given the seriousness associated with the long-terms effects of climate change.
The pioneering idea has been presented to an audience of scientists, politicians and public figures at a symposium held at the British library.
Mr. Hockman, a deputy High Court judge, believes that it is imperative now given the threat of climate change for the law to protect the environment.
A UN Climate Change Conference recently held in Poznan, Poland, began negotiations that is hoped will lead to a new agreement in replacing the Kyoto protocol in Copenhagen, next year. Developed countries are expected to commit cutting emissions quite drastically, while developing countries will be urged in halting deforestation.
The British Government has agreed in-principle that the concept of an international court will be taken into account when consideration is being made on how to make international agreements on climate change binding.
Mr. Hockman said an international court would be needed to enforce and regulate any agreement, saying: ‘Its remit will be overall climate change and the need for better regulation of carbon emissions but at the same time the implementation and enforcement of international environmental agreements and instruments.’
Whilst the creation of the court would provide an arena and setting in resolving disputes and in providing resolutions between states, the court would also likely be useful for multinational firms by ensuring environmental laws are kept to in every country.
It is believed that the court would uphold a convention on the right to a healthy environment; and by making provision for a higher body within itself, so as individuals or non-governmental organisations could appeal or protest against any environmental injustices.
The primary role of such a court would be in making “declaratory rulings” that, essentially, would be made to influence and embarrass countries into upholding the law. The court would also likely be equipped with powers in fining companies and individual states where breaches of the law are made.
Mr. Hockman added: ‘Of course regulations and sanctions alone cannot deliver a global solution to problems of climate change, but without such components the incentive for individual countries to address those problems – and to achieve solutions that are politically acceptable within their own jurisdictions – will be much reduced.’
It is envisaged that the court would be led by retired judges, climate change experts and other public figures. It would also include, as a central part of its function, a scientific body in considering evidence and by making available any data on the environment.
The creation of an international court on the environment would invariably influence public opinion that in turn would force Governments to take issues associated with the environment seriously. If there are established bodies that can give definitive legal rulings that are accepted as ‘fair and reasonable’ that would likely have its own impact on public opinion.
Environmental campaign groups such as Friends of the Earth have welcomed the idea as it helps and promotes the rights of people to live in a clean and healthy environment.
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