October 12th, 2020 by Guest Contributor
Courtesy of Union Of Concerned Scientists.
By Elliott Negin
This summer Connecticut, Delaware and Minnesota joined some 20 states, cities and counties across the country that have filed climate change lawsuits against fossil fuel companies, charging that they have been aware of the threat their products pose to the climate for decades and deliberately misled the public about the reality and seriousness of global warming.
Many of those cases, including those filed by Baltimore, San Francisco and Washington, D.C., seek to hold specific companies liable for damages caused by a range of climate change-related impacts, including drought, intensified storm surge, sea level rise, and increased flooding and precipitation. Other lawsuits, such as ones filed by Massachusetts and Minnesota, allege that specific companies violated consumer protection and common laws by defrauding their residents through false advertising and other misrepresentations about their products’ risks. Among the defendants are BP, Chevron, ExxonMobil, Royal Dutch Shell and the American Petroleum Institute, the largest oil and gas industry trade association in the United States.
Given this growing number of climate lawsuits, I thought it would be helpful to ask L. Delta Merner, who runs our new Science Hub for Climate Litigation, to provide some details about the Science Hub, the different types of climate lawsuits, and how scientists determine which companies are responsible for climate damage. Dr. Merner, who has a doctorate degree in geography and environmental systems from the University of Maryland Baltimore County, joined our staff in last November. Before coming on board, she was a senior scientist at the American Institute of Physics.
EN: Let’s start with the UCS Science Hub for Climate Litigation, which UCS launched in early August. What’s its purpose? What are its goals?
DM: The Science Hub’s goal is to help more scientists conduct and then communicate legally relevant research. But, before I get into the details, I think it’s important to understand why scientists and other experts should be working at the intersection of science and the law.
Scientists across a range of disciplines have been helping to inform policies that would limit climate change impacts, protect people from those impacts, and hold those responsible for the impacts accountable. But as these impacts accumulate and powerful interests continue to stand in the way of science-based climate policy, frontline communities are increasingly turning to the courts for justice. Litigation has the potential to be an important tool to hold governments and businesses liable for their actions — or, in many cases, inaction — that contributed to increasing concentrations of carbon dioxide and other heat-trapping gases in the atmosphere, and we want to ensure that court decisions are based on the most up-to-date scientific evidence possible.
Specifically, the Science Hub has four primary objectives. First, it wants to broaden legally relevant scientific research, including attribution science research, which pinpoints how much carbon pollution can be traced to specific fossil fuel companies.
Second, the Science Hub wants to expand the community of scientists and legal scholars lending their expertise to climate litigation. We want to ensure that they know what opportunities there are for engagement and connect experts with litigation efforts, when appropriate.
Third, we want to make robust litigation-relevant science widely available and accessible to legal scholars and practitioners, local officials, affected communities and other interested parties. We want to make sure that societal decisions are informed by science. For that to happen, relevant research must be available outside of academic and scholarly circles.
Finally, we connect legal teams with experts in relevant technical fields. Only a relatively small number of scientists will work directly with legal teams, but as we’ve seen in the past with tobacco and lead litigation in the United States, it’s critical to have scientists who can review evidence and provide expert testimony.
EN: As I mentioned in my intro, there are more than 20 lawsuits here in the United States seeking to hold fossil fuel companies accountable for climate damages and fraud. Can you tell us a bit about the different lawsuit categories here as well as in other countries?
DM: I am not a legal scholar, but the Science Hub has partnered with some brilliant legal minds working in this area and the number of climate-related lawsuits has been growing since the mid-2000s. Overall, there are two broad types of lawsuits that we are interested in. The first are cases seeking to force governments to take action on climate change. Here plaintiffs are demanding stronger laws and policies — or enforcement of existing commitments — to reduce carbon emissions, end fossil fuel subsidies, and protect the public. The second kind of lawsuit is against corporations for their contributions to climate change. These could result in companies halting harmful business practices and paying for climate change-related damages. These lawsuits can involve emissions, climate change impacts, adaptation, and risk disclosures, among other things. There also are a number of human rights violation investigations that have the potential to lead to significant outcomes.
The cases are very promising, largely due to advances in science and other areas of research. The fraud cases in play today are grounded in historical research, while the evidence plaintiffs are presenting in damages cases has been bolstered by advances in research on climate impacts, adaptation and attribution.
I should note that the litigation-relevant research that plaintiff attorneys are using in these cases comes from a wide range of disciplines and includes evidence from affected communities’ experiences. The body of knowledge that attorneys need to build effective arguments goes far beyond what we traditionally think of as climate science.
EN: Many of these lawsuits are against specific fossil fuel companies and, as I mentioned, the usual suspects include BP, Chevron, ExxonMobil and Shell. How do scientists determine individual companies’ contribution to climate change? How do we expect the courts to view those calculations and incorporate other factors to determine their share of responsibility?
DM: We could do an entire interview just discussing the ways scientists calculate individual companies’ contributions to climate change. But I can give you the basics.
Climate scientists have shown that human activities — mainly burning fossil fuels — are the primary cause of climate change by comparing models that explore how global systems react to natural- and human-caused carbon emissions. This comparison allows scientists to document the differences in the impacts from human activities versus baseline, natural conditions. And climate scientists have verified that increases in global average temperatures are largely due to human-caused carbon emissions.
Now climate scientists can isolate human-caused impacts in more specific ways, including quantifying contributions of the emissions from fossil fuel companies’ products to global average temperature increase, sea level rise, and ocean acidification. Geographer Rick Heede, cofounder of the Climate Accountability Institute, quantified and traced historic and cumulative carbon dioxide and methane emissions to the largest extant fossil fuel and cement producers. With that data, climate scientists can run simple climate models to calculate, among other things, the amount of global average surface temperature and sea level rise is linked to the emissions from a carbon producer. This relatively new field of science is growing rapidly — thanks in part to the pioneering work by our UCS colleagues Brenda Ekwurzel, Peter Frumhoff and Rachel Licker — and we are tracking advances in attribution science on our website.
These exciting scientific advances are a big part of the reason legal scholars see climate litigation as a viable tactic to address climate change and provide recourse for communities that have been damaged and will be damaged by climate change-related destruction. We have yet to see plaintiffs present attribution science in court, but the methods are sound and the potential is huge.
EN: Finally, you mentioned that there are climate lawsuits that have been filed outside of the United States. Do any of them look promising?
DM: There are dozens of climate-relevant lawsuits in play in countries outside of the United States, from Australia and Fiji in the Pacific, to France and Germany in Europe, to Kenya in Africa. It would take too much time to go into all of the cases, I want to highlight two that are of particular interest: the Urgenda Foundation climate case against the Dutch government and a petition to the Philippines Commission on Human Rights.
Perhaps the most successful case to date is the one brought by the Netherlands-based Urgenda Foundation, which argued that the Dutch government has a legal duty under its human rights obligations to prevent climate change. Last December, the Netherlands Supreme Court ruled that the national government must reduce emissions in the country by at least 25 percent before 2020 compared to 1990 levels. This victory has inspired similar climate-related litigation in a dozen other countries, including Canada, Colombia and New Zealand.
The Philippines inquiry also looked at climate change through the lens of human rights, but it involves a different legal mechanism. In 2016, after two typhoons devastated the Philippines within a week of each other, Greenpeace Southeast Asia and Filipino human rights groups petitioned the Philippines Commission on Human Rights to investigate the role four dozen cement, coal, gas and oil companies play in human rights violations stemming from climate change-related damages. Two years later, the commission began to hold hearings, during which frontline community members, human rights advocates, medical professionals, legal analysts and scientists — including UCS experts on attribution science and corporate disinformation campaigns — testified. Their testimony included arguments that climate change represents a human rights emergency for communities that have incurred damages and that major carbon polluters can be found legally and morally liable for human rights violations caused by climate change.
The commission has issued public statements about its findings, but it has not yet released its final report. We hope it will be out before the end of the year.
Featured image: Delta Merner, Science Hub for Climate Litigation lead at the Union of Concerned Scientists. “In her role, she provides timely, scientific evidence to support legal cases that hold fossil fuel companies accountable for climate-related damages.”
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