Climate Justice: The international momentum towards climate litigation

Climate Justice: The international momentum towards climate litigation

The Paris Agreement is ground breaking yet contradictory. In an era of fractured multilateralism it achieved above and beyond what was considered politically possible – yet it stopped far short of what is necessary to stop dangerous climate change. In the Paris Agreement, countries agreed to pursue efforts to limit warming to 1.5C, yet the mitigation pledges on the table at Paris will result in roughly 3C of warming, with insufficient finance to implement those pledges. The Paris Agreement was widely acknowledged to signal the end of the fossil fuel era, yet it does not explicitly use the words ‘fossil fuels’ throughout the entire document, nor does it contain any binding requirements that governments commit to any concrete climate recovery steps.
 
Now, citizens and governments are beginning to seek redress in court with ground breaking cases emerging around the world, in a whole new area of litigation, some of which can be compared with the beginnings of - and based on some of the legal precedents set by - legal action against the tobacco industry.

Other new strategies are focused not only on private industry but on the sovereign responsibility of governments to preserve constitutional and public trust rights to a stable climate and healthy atmosphere on behalf of both present and future generations. Climate litigation has spread beyond the US into new jurisdictions throughout Asia, the Pacific and Europe. Claimants are not only targeting the ‘Carbon Majors’, who are the world’s largest producers of oil, coal and gas, but are also targeting the governments around the world that are continuing to support and collude with the Carbon Majors by promoting, subsidising and approving a fossil-fuel based energy system, with the full knowledge of the catastrophic impacts of climate destabilization and ocean acidification that would result from continuing to burn fossil fuels.
 
This document makes the following recommendations:
 
  • remove the fossil fuel industry from the climate negotiations process and ban the industry from having a role or voice in setting climate change policy
  • acknowledge and discharge governments’ affirmative sovereign obligations to preserve essential natural resources, including a healthy atmosphere, ocean and climate system, in accordance with the best available science, for the benefit of all present and future generations, with comprehensive plans for emission reductions and protection and restoration of natural ecosystems
  • as well as making appropriate contributions in their own right (public climate finance), introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, allowing for individuals and communities to directly access the funds made available through this process
  • remove fossil fuel subsidies and couple this action with the carbon levy to ensure that governments recuperate the true and complete costs of climate change from industry
  • introduce into international climate law a provision that recognises the role of private sector liability and encourages governments to take legislative action and legal actions under existing laws to deal with potential criminal and civil liability of the fossil fuel industry
  • take legal action against the fossil fuel industry within national jurisdictions to establish liability, recuperate the costs of climate change and expose internal industry documents
  • consider amending limitation periods if necessary to allow claimants to bring cases from the time that climate damages manifest
  • implement strategies to ensure fossil fuel defendants do not take action to avoid liability (e.g. through shifting assets to alternative jurisdictions or splitting up their companies)
  • introduce legislation that specifically addresses climate liability if there is a need for clarification of the law or a need to change the law to make climate litigation feasible
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