Climate Law Insider, Newsletter 2/2020

List of Contents: Net-zero pledges: New dynamics in domestic climate targets. Law Firms in the Spotlight for Assisting Fossil Fuel Industries. Climate Lawsuit Youth v. Canadian Government dismissed at first instance. Landslide victims take Ugandan Government to court for failure to adapt to climate change impacts. County of Maui v. Big Oil: The Latest Municipal Climate Case against the Fossil Fuel Industry.

- Net-zero pledges: New dynamics in domestic climate targets -

After China announced its net zero by 2060 climate pledge a few weeks ago, Japan’s new Prime Minister Yoshihide Suga used his first general policy address before the Japanese Parliament to announce the new objective of achieving net zero greenhouse gas emissions by 2050 The pledge is expected to raise important and contested questions about coal and nuclear energy in Japan. Suga’s new policy initiative is the most recent example of a rising trend among countries to adopt net zero targets. Countries which have not yet committed themselves to such goals – especially large greenhouse gas emitters such as the US and China – could face renewed pressure in this regard in the future. While the number of countries with net zero commitments is growing rapidly, it is important to monitor to what extent these are actually anchored in national climate legislation – information that can be found in ECIU’s net zero tracker in its overview of domestic targets. In addition to the legal frameworks in each country, future analyses of climate commitments must take into account the actual definition of net zero emissions: Which greenhouse gas emissions are captured by the target and what are possible ambiguities in the established accounting practices. As carbon offsets gain increasing popularity in this context, a group of Oxford-based scientists proposed four principles for credible carbon offsetting

- Law Firms in the Spotlight for Assisting Fossil Fuel Industries -

Law Students for Climate Accountability, a US-based organization, published the ‘2020 Law Firm Climate Change Scorecard’, a first attempt to detail the scale of top law firms’ role in the climate crisis. The Scorecard analyses litigation, transactional, and lobbying work conducted by the 2020 Vault Law 100 law firms – the 100 most prestigious law firms in the United States – from 2015 to 2019. Each firm receives an overall ‘Climate Score’ reflecting its contribution to the climate crisis based on the data in these three categories.

The report shows that Vault 100 firms assist a significant larger number of clients interested in fossil fuel development, than clients whose concern it is to combat climate change.

According to the authors, the report provides law students and young lawyers with important evidence when deciding on their current and future employment and hope this will spur change in the practice among Vault 100 firms.

- Climate Lawsuit Youth v. Canadian Government dismissed at first instance -

The Federal Court of Canada granted the government’s motion to strike the youth led climate case La Rose v. Her Majesty the Queen on 27th of October 2020. Fifteen young people from Canada filed the lawsuit last year against the federal government, asking the court for an order declaring that the government’s conduct violates the Canadian Charter of Rights and Freedoms and the Public Trust Doctrine and demanding that the government prepares and implements a climate recovery plan consistent with its ‘fair share of the global carbon budget’. The plaintiffs allege that the Canadian government is responsible for the specific, individualized climate change impacts they suffer by causing, contributing to and allowing dangerous levels of greenhouse gas emissions. The federal court dismissed the claim, acknowledging that ‘the negative impact of climate change to the Plaintiffs and all Canadians is significant, both now and looking forward into the future’, but finding the issue ‘so political that the courts are incapable or unsuited to deal with them.’ The question of separation of powers - in the US-American context overlapping with the political question doctrine - represents a common obstacle for climate change litigation directed against the state. A divided court in the popular lawsuit Juliana v. United States, supported like the Canadian case by the NGO Our Children’s Trust, found at the beginning of this year that the plaintiffs lacked standing inter alia because their case must be made to the political branches and it was not for the courts to step into this role. There appears to be no consensus on this question, as the dissenting opinion as well as decisions in other jurisdictions show. In its groundbreaking judgment in the Urgenda case, the Supreme Court of the Netherlands stated last year that it is up to the courts to decide whether government and parliament have remained within the limits of the law by which they are bound, and ruled that the Dutch government must cut its greenhouse gas emissions. Similar to the claimants in the Juliana case who have already petitioned for rehearing, the youth plaintiffs in the Canadian lawsuit intend to appeal the decision.

- Landslide victims take Ugandan Government to court for failure to adapt to climate change impacts -

After a major landslide in Uganda’s Bududa region in December last year, 48 people, who were themselves directly impacted or lost family members, filed a lawsuit at Uganda’s High Court against the government for its failure to act on the known landslide risk. They claim a violation of their rights to life, property and the right to a clean and healthy environment by the government’s inaction. The region, where the landslide took place, is known to be vulnerable to climate change impacts. The government had acknowledged in its own policies that it expects climate change to contribute to increased rain and extreme weather events, which exacerbates the risk of landslides. ‘Climate change is increasingly posing a threat to the human rights of climate-vulnerable communities around the world. This kind of litigation will increase if governments fail to help their populations adapt to climate-related natural disasters.’, says April Williamson, Client Earth, who is supporting the case. In our recent CCLR Issue 3/2020, Alastair Marke and Marco Zolla provide an assessment of the rising trend of litigation for climate adaptation failures.

- County of Maui v. Big Oil: The Latest Municipal Climate Case against the Fossil Fuel Industry -

On October 12th, the County of Maui in Hawaii sued Exxon, Shell, Chevron, BP and more than a dozen other companies for having known for decades the negative consequences their business activities are having on the global climate. Plaintiffs are arguing before the Court of the Second Circuit of the State of Hawaii that the defendants did not disclose known harms associated with the extraction, promotion, and consumption of their fossil fuel products, and instead, affirmatively acted to obscure those harms and engaged in a campaign to deceptively protect and expand the use of their fossil fuel products. Further, they claim that these companies’ internal actions demonstrate their awareness of and intent to profit from the unabated use of fossil fuel products, thus exacerbating the costs of adapting to and mitigating the adverse impacts of the climate crisis.
Due to the ongoing and future climate-related damages in the County of Maui and the associated costs these entail for taxpayers, plaintiffs are arguing that defendants are responsible to pay for compensatory damages and the abatement costs of the nuisances. Crucially, this case also raises the implications for marginalized local communities of colour and the disproportional impacts they are suffering due to structural injustices.
This case is the latest in a trend that is growing across the US, where states and cities are suing big fossil fuel companies for either failing to timely warn about the risks of their products to the climate, or seeking compensation for climate-related damages.

Kind Regards,

Anne, Juan, and Felix

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