Story originally published by Drilled News
The city of Charleston, South Carolina is going to court to hold two dozen oil and gas companies accountable for alleged deception about the role of fossil fuels in driving climate change.
Charleston filed its lawsuit against 24 petroleum firms in South Carolina state court on September 9, joining around 20 other communities across the country pursuing similar litigation against the fossil fuel industry. Hoboken, New Jersey filed a climate lawsuit just last week against six major oil and gas companies plus the industry’s largest trade association, the American Petroleum Institute. 24 hours after Charleston's announcement, the state of Delaware announced the filing of its climate liability suit, against several fossil fuel companies and the American Petroleum Institute.
The Charleston lawsuit names major petroleum companies and their affiliates such as BP, Chevron, ConocoPhillips, Phillips 66, ExxonMobil, Marathon Petroleum, and Shell Oil.
“As this lawsuit shows, these companies have known for more than 50 years that their products were going to cause the worst flooding the world has seen since Noah built the Ark,” Charleston Mayor John Tecklenburg said in a press release. “And instead of warning us, they covered up the truth and turned our flooding problems into their profits. That was wrong, and this lawsuit is all about holding them accountable for that multi-decade campaign of deception.”
The lawsuit brings legal claims of public and private nuisance, trespass, strict liability, and negligent failure to warn. It also alleges violations of South Carolina’s Unfair Trade Practices Act, a statute that prohibits deceptive practices such as misleading advertising.
This lawsuit, like many of the other climate accountability cases filed against the industry, seeks monetary compensation to help pay for the staggering costs associated with climate impacts like extreme heat, damaging flooding, severe storms and sea level rise.
According to Charleston’s complaint, the South Carolina coastal city has seen flood events increase significantly “from around four days per year around 50 years ago to nearly 89 days per year as of 2019,” and the city “has incurred significant costs on capital projects to address sea level rise.”
These climate cost-recovery lawsuits are aimed at shifting some of the costs onto the companies that are largely responsible for the climate crisis and that willfully engaged in campaigns of deception and disseminating climate denial.
As stated towards the end of Charleston’s 137-page complaint, the fossil fuel companies targeted in the lawsuit “widely disseminated marketing materials, refuted the scientific knowledge generally accepted at the time, advanced and promoted pseudo-scientific theories of their own, and developed public relations materials that prevented reasonable consumers from recognizing or discovering the latent risk that Defendants’ fossil fuel products would cause grave climate changes.”
Charleston further alleges that the firms “deceitfully represented themselves as leaders in renewable energy and made misleading claims that their businesses were substantially invested in lower carbon technologies and renewable energy sources,” and continue to make similar false claims to the public.
As in the other cases, the industry has denied wrongdoing. “There is no merit to the claims,” Chevron spokesman Sean Comey said in an emailed statement. “They are not a serious solution to a serious problem,” he said, but instead “special-interest-promoted lawsuits designed to punish a few companies in one industry who lawfully deliver affordable, reliable, and ever cleaner energy.”
But Charleston’s mayor said he knows from his own time working with the petrochemical industry that oil and gas companies have a long track record of deceiving the public about the harmful risks of their products.
“As the founder of an industrial lubricants business here in South Carolina in the 1970s, I handled their products, and I can tell you from firsthand experience that these companies were not in any way, shape or form sharing information with us about the dangerous flooding and extreme weather their products would cause,” Tecklenburg said in the press release. “In fact, I was hearing the same false and misleading claims from them as everyone else. And now it's time for them to pay for the damage they’ve caused for our residents, businesses and taxpayers.”
Charleston is the first city in the American South to sue fossil fuel firms over climate change. In addition to the Hoboken case, communities in California and in Colorado, Washington State’s King County, the city and county of Honolulu in Hawaii, the city of Baltimore, New York City, Washington, D.C., and the states of Minnesota, Massachusetts and Rhode Island have filed climate lawsuits against the industry outside of the federal courts.
“Big Oil is facing climate lawsuits on both coasts, in the northeast, the midwest, the south, the Rocky Mountains, and even Hawaii,” said Richard Wiles of the Center for Climate Integrity, an initiative that supports climate accountability litigation, in a statement released in support of Charleston’s action. “The public is ready to hold this corrupt industry accountable for causing and lying about climate change, and officials across the country are stepping up to take action.”
Charleston is represented in the case by South Carolina attorney Joseph P. Griffith, as well as the San Francisco-based environmental law firm Sher Edling LLP. Sher Edling is representing roughly half of the 21 communities that are taking legal action against the fossil fuel industry over climate impacts and the industry’s alleged deception.
Canadian Government "fundamentally Mischaracterizes" Constitutional Climate case, Youth Plaintiffs Argue
Lawyers representing 15 Canadian youth suing the federal government of Canada over the climate crisis have responded to the government’s bid to have lawsuit dismissed. The youth plaintiffs in the case La Rose et. al. v. Her Majesty the Queen argue that Canada is violating their constitutional rights by contributing to the climate crisis and that the government’s conduct in this context is subject to judicial review.
In its motion to strike (dismiss), the attorney general of Canada said the youths’ case presented non-justiciable “political” questions. This argument “fundamentally mischaracterizes the plaintiffs’ claims,” the response explains. Plaintiffs’ lawyers filed the response brief on August 31 in the Federal Court of Canada. That court will hold hearings on the motion to strike starting at the end of September.
The lawsuit, filed on October 25, 2019 and modeled after the American youth constitutional climate case Juliana v. United States, claims that Canada is harming its youngest citizens by worsening the climate crisis. The case brings legal claims under sections 7 and 15 of the Canadian Charter of Rights and Freedoms (part of the constitution), which specify rights to life, liberty and security of the person and to substantive equality under law. Plaintiffs also claim the government is violating its duty under the public trust doctrine, an ancient legal principle that governs sustaining vital natural resources.
“The plaintiffs’ claim is not about the wisdom of climate policy but about whether Canada’s conduct breaches the plaintiffs’ Charter rights or is inconsistent with Canada’s obligations under the public trust doctrine. These are legal, not policy questions,” the response brief argues.
Canada has also said it cannot be held responsible in court for the global problem of climate change. The plaintiffs pushed back on this defense, saying it “ignores Canada’s significant contribution to climate change.” As noted in a footnote in the response brief, Canada is one of the ten highest emitters in the world. The federal government has even gone so far as to purchase a controversial oil pipeline to ensure the project’s completion despite hurdles faced by the pipeline company.
Plaintiffs further argue that their legal claims are backed by robust climate science.
“It is surprising, and indeed disturbing, that the federal government argues that the question of the level of GHG reduction required to stabilize the climate is an ideological one, rather than one based on science,” the response brief states. “The need for significant and immediate reductions in order to avoid further widespread and significant harm is a scientifically provable fact, which Canada says it accepts, and it is the objective and immutable nature of this fact which leads to the urgent need for action.”
The youth plaintiffs are asking the court to order the government to create a “climate recovery plan” to sharply reduce Canada’s greenhouse gas emissions in a manner consistent with the country’s fair share to stabilize the climate system according to the best available science. This kind of broad remedy is what ultimately resulted in the Juliana case’s pre-trial dismissal by a federal appeals court, though that decision was not unanimous and included a strong dissenting opinion. The Juliana plaintiffs are currently seeking review of the dismissal by the full appeals court (en banc).
Like their American counterparts, the Canadian youth plaintiffs say their government is failing to protect young people in the face of the climate emergency, and that the courts must step in to halt this injustice.
“Canada has acknowledged the disproportionate impacts of climate change on youth, especially on Indigenous youth like me,” Sophia, 18-year-old plaintiff from Gatineau, Quebec, said in a press release. “I’m profoundly disappointed that Canada acknowledges this and now tries to evade their legal responsibilities to protect us. Canada talks but they don’t act. That’s why we need the courts to order the Canadian government to protect the constitutional rights of children and youth in Canada, especially Indigenous children and youth. The time for talking is over. We are in a crisis and we need to act immediately.”
Hearings on the motion to strike will take place September 30 and October 1, 2020 at the Federal Court in Vancouver. These hearings will determine if the case can proceed towards trial.
Story originally published by DeSmog
Six young people from Portugal have filed an unprecedented climate change lawsuit against almost all of Europe, targeting 33 European nations for failing to take adequate action on the climate crisis that they say threatens their human rights.
It is the latest in a series of legal actions brought by young people around the world demanding urgent climate action to protect their fundamental rights and safeguard their futures.
The case was filed on September 3 in the European Court of Human Rights in Strasbourg, France. It is the first climate case brought directly to this international court. Lawyers for the youth plaintiffs will argue that European governments’ current plans for cutting greenhouse gas emissions are insufficient to prevent catastrophic climate change and therefore constitute human rights violations under the European Convention on Human Rights.
“If successful, the 33 countries would be legally bound, not only to ramp up emissions cuts, but also to tackle overseas contributions to climate change, including those of their multinational companies,” the charity Global Legal Action Network, which is providing legal support for the case, explained in a press release.
Countries named as defendants in the case include Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Germany, Greece, Denmark, Estonia, Finland, France, Croatia, Hungary, Ireland, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, the United Kingdom, Turkey, and Ukraine. These nations make up the European Union plus six other countries that together are the major emitters in Europe.
According to research from Climate Action Tracker, which tracks and analyzes countries’ emissions reduction policies, the policies of these nations do not align with the Paris Agreement goals of limiting global temperature rise to well below 2 degrees C (3.6 degrees F) and pursuing a limit of 1.5 degrees C (2.7 degrees F).
The United Nations Environment Programme refers to this misalignment between what nations of the world promised under the Paris Agreement and what their domestic policies on emissions cuts actually represent as the “emissions gap.” Under current climate policies, the world is on track for more than 3 degrees C (5.4 degrees F) of warming by 2100. An October 2018 report from the Intergovernmental Panel on Climate Change warned of increased risks to human health, livelihoods, food and water security, and other dangerous impacts if warming exceeds 1.5 degrees C.
But top climate scientists like Dr. James Hansen have warned that even warming of 1.5 degrees C is not safe. In a 2013 paper Hansen and colleagues explained that rapid emissions reductions are needed to stabilize the climate and “avoid potentially disastrous impacts on today’s young people, future generations, and nature.” That paper pointed to the “intergenerational injustice” of the climate crisis and suggested that courts could play a key role in remedying that injustice.
The climate science, therefore, has direct implications for human rights. “It is not just the future of these young people and countless others which is on the line in this case,” Global Legal Action Network Director Dr. Gearoid ÓCuinn said in a press release. “Experts have said that the climate crisis puts the very survival of human rights at risk. Never before has the European Court of Human Rights been faced with an issue of such existential significance.”
Still, courts have tended to struggle when it comes to fully grappling with the human rights dimensions of the climate crisis. Courts have dismissed cases that included rights-based claims brought against governments in the European Union, the UK, and the U.S., and in a recent Supreme Court decision in Ireland, though counted as a win for the climate litigants, the chief justice said he viewed the right to a healthy environment as “impermissibly vague.”
Courts in the Netherlands, however, have accepted the human rights arguments brought in a landmark climate case by the Urgenda Foundation, including finding violations of the European Convention on Human Rights. The new youth climate case against the 33 European countries, dubbed “Youth for Climate Justice,” hopes to build on the success of the Urgenda case.
Burgeoning Youth Movement Turning to the Courts
This new case is just the latest in what appears to be a rising tide of legal actions brought by young people against governments and corporations most responsible for the climate crisis and actions to address it.
Fifteen youths in the State of Baja brought a new climate case against the government of Mexico. Kids are also suing their governments in Canada, the U.S., South Korea, Germany, and Norway, for example. In Australia, a Melbourne law student sued the Australian government in July over climate-related financial risks to government bondholders, and a group of young Queenslanders suing a coal company represent Australia’s first climate lawsuit brought against a coal project on human rights grounds.
In September last year, Swedish climate activist Greta Thunberg and fifteen other young people filed a petition with the United Nations' Committee on the Rights of the Child against five large-emitting countries including Argentina, Brazil, France, Germany, and Turkey.
In the U.S., the groundbreaking youth climate lawsuit Juliana v. United States nearly made it to what legal observers were calling the “trial of the century,” but a panel of the Ninth Circuit Court of Appeals ruled in a 2-1 decision in January this year to dismiss the case. The youth plaintiffs are currently seeking a review of this dismissal by the full court.
The decision on whether or not the full court will review the Juliana case could come in the next month or two, according to Our Children's Trust Executive Director Julia Olson. Our Children's Trust is an Oregon-based nonprofit supporting youth climate cases in the U.S. and globally.
“It’s great that young people are taking legal action against governments around the world in all the different forums they can,” Olson told DeSmog. “The more young people bring these cases, the more momentum there is for the judiciaries in other countries to play the role they should be playing in this life or death issue.”
Deadly Heat and Fires
Youth around the world are increasingly turning to the courts because the climate crisis disproportionately imperils young people and future generations.
For the six Portuguese plaintiffs, who range in age from 8 to 21, the climate emergency is a lived reality playing out as searing heat waves and blazing wildfires. Four of the plaintiffs live in Leira, Portugal, an area that experienced deadly fires in 2017 that claimed over 120 lives. And in the capital city of Lisbon, where the other two plaintiffs reside, a heat wave in August 2018 set a new temperature record of 44°C (111°F).
This summer Portugal sweltered through its hottest July in 90 years. Scientists have predicted there will be a thirty-fold increase in deaths from heat waves in western Europe by the period 2071-2100 under the current global warming pathway.
“It terrifies me to know that the record-breaking heat waves we have endured are only just the beginning,” 20 year-old plaintiff Catarina Mota said in a press release. “With so little time left to stop this, we must do everything we can to force governments to properly protect us. This is why I’m bringing this case.”
The emerging global trend of youth taking their governments to court over the climate crisis has now reached Mexico. Lawyers representing a group of 15 young people from the State of Baja California (part of Mexico) announced on Sept. 2, 2020 a new lawsuit against the Mexican federal government urging the country to issue regulations and policies derived from the Mexico’s General Law on Climate Change and the Mexican Constitution.
“Although a General Law on Climate Change was passed in 2012, there are still no regulations or public policies that allow for its proper implementation. Jóvenes v. Gobierno de México seeks the immediate creation and enactment of these mechanisms to ensure swift and proper implementation of the law,” a press release from Our Children’s Trust, which is supporting this and other youth climate lawsuits, explains.
According to Our Children’s Trust, the new lawsuit against Mexico has been admitted on the merits, which is an important initial procedural step. The youth plaintiffs are requesting a court date this week as Mexican courts reopen following closure due to the coronavirus pandemic.
This case is part of a growing movement of youth-led legal actions to hold national governments accountable for the climate crisis, which will disproportionately impact youth and future generations. In March a group of young people in South Korea sued their government. Other cases are currently pending in Australia, Norway, Germany, Canada, the United States, and before the United Nations’ Committee on the Rights of the Child. With the filing of this case in Mexico, youth-driven climate litigation is now active in all three countries of North America. The Canadian case La Rose v. Her Majesty the Queen is slated for hearings on September 30 and October 1. In the U.S., the Juliana case, which was dismissed in January, awaits a decision on whether the full appeals court will review (en banc) the decision by a three-judge panel to dismiss the suit.
“We are young people who need to raise our voices, both in Mexico and in other countries, because it is clear that our future and that of new generations is threatened,” Nelson G., one of the youth plaintiffs in the new lawsuit against Mexico, said in press release.
Story originally published by DeSmog
New Jersey has now joined the wave of lawsuits seeking to hold the fossil fuel industry accountable for climate impacts. The city of Hoboken today filed a case against major oil and gas companies and the American Petroleum Institute (API), a powerful industry trade group which has played a major role in promoting “uncertainty” about climate science.
The lawsuit seeks to recover costs associated with climate impacts like extreme flooding and sea level rise. Like other climate liability lawsuits targeting fossil fuel companies, Hoboken's suit alleges that the oil and gas companies and their lobbying group not only knew early on about the climate harms resulting from their products, but actively engaged in campaigns of deception to undermine climate science and avoid policy responses.
“Here in Hoboken, we are now paying the price for these deceptive actions,” Hoboken Mayor Ravi S. Bhalla said during a press conference held Wednesday, September 2. “We cannot sit idly by and let Big Oil continue profiting at the expense of Hoboken residents.”
Defendants named in the Hoboken lawsuit include BP, Chevron, ConocoPhillips, ExxonMobil, Shell, and Phillips 66, plus the largest trade association in the U.S. for oil and gas, API. This lawsuit is the second climate case in recent months targeting API specifically. The Big Oil trade association is also a defendant in a lawsuit filed June 24 by Minnesota Attorney General Keith Ellison.
Hoboken's lawsuit points to the long history of the oil and gas industry's knowledge of the potentially damaging impacts of its products on the climate, and the differences between what they came to say about the issue publicly versus privately over time. It cites Frank Ikard, API President in 1965, when he delivered a dire warning about a report on climate change during an oil industry conference: ”[T]here is still time to save the world’s peoples from the catastrophic consequences of pollution, but the time is running out.”
But decades later, API's approach toward climate change had evolved. The lawsuit quotes a 1998 internal action report in which API says, “Unless ‘climate change’ becomes a non-issue … there may be no moment when we can declare victory for our efforts.”
API did not immeditately respond to requests for comment from DeSmog.
According to Hoboken’s legal complaint, “Defendants, some of the world’s largest fossil fuel companies and their largest trade association, have known for more than a half-century that the fossil fuels they extract, produce, market, and sell on a massive scale are causing accelerating climate change that poses grave threats to society — sea level rise, extreme heat, and increasingly destructive storms, among many others. Instead of addressing those threats, Defendants have spent the last fifty years deceiving the public about their central role in causing climate change in order to grease the wheels of their ever-expanding production and sale of fossil fuels.”
The lawsuit includes legal claims of public and private nuisance, trespass, negligence, and violation of New Jersey’s Consumer Fraud Act. The city is seeking monetary damages — in other words, demanding that the oil companies help pay for climate-related costs that otherwise are saddled onto taxpayers.
Exxon spokesperson Casey Norton told DeSmog, “This suit does nothing to advance meaningful actions to reduce the risks of climate change. The claims are baseless and without merit. We look forward to defending the company in court.”
“We want to be compensated for the costs of climate damages both past, present and future,” Mayor Bhalla said. Hoboken has already spent hundreds of millions of dollars on resiliency projects, he explained. According to a 2019 study by the Center for Climate Integrity, Hoboken’s estimated costs for sea walls alone by 2040 will add up to $27.9 million, while the cost for sea walls in Hudson County (which includes Hoboken) is estimated at $505 million.
Mayor Bhalla said climate resiliency must emphasize protecting the city’s most vulnerable residents, such as people of color and lower-income families who tend to be disproportionately impacted by fossil fuel pollution and climate disasters like Hurricane Sandy, which devastated the New Jersey coast in 2012. “This is a racial justice issue,” he said.
Hoboken filed its climate lawsuit on September 2 in Hudson County Superior Court, which is a New Jersey state court. Similar climate cases filed by states and municipalities have been embroiled in jurisdictional battles, with fossil fuel companies determined to move the cases to federal courts where they see an easier path to dismissal. None of these climate accountability cases have made it to trial yet, with the exception of a securities fraud case filed by the state of New York against Exxon. A judge dismissed that case last December.
“We fully recognize that a legal decision may not come down for some time,” Mayor Bhalla said during the press conference. He explained that the city is “joining the fight” now for the sake of the younger generations of Hoboken residents.
“We don’t believe it is hyperbole to say that what Hoboken, the nation, and the world are facing is an existential threat,” said Jonathan S. Abady, an attorney with the New York City law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP, which is providing legal representation for Hoboken at no cost to the city.
“Time is of the essence,” Abady said. “And time is running out.”
Europe has in some ways been at the forefront of climate change litigation, particularly with cases brought against national governments seeking swifter action to reduce greenhouse gas emissions in order to protect citizens’ fundamental rights in the face of the climate emergency. European courts have ruled in favor of climate litigants challenging their governments’ climate policies, first with the groundbreaking verdict in the Dutch Urgenda case and most recently with the Supreme Court victory for Climate Case Ireland.
Lawyers working on European climate litigation, including those who worked on these two trailblazing cases, shared their insights during a virtual panel discussion held Wednesday, September 1. The discussion focused on human rights strategies in European climate cases, and was the fourth in a climate litigation webinar series hosted by the Global Network for Human Rights and the Environment. Panelists included the Urgenda Foundation’s Dennis van Berkel, German lawyer Roda Verheyen, Andrew Jackson of Friends of the Irish Environment, and Louise Fournier with Greenpeace International.
The Urgenda case in the Netherlands won an initial landmark ruling in 2015, which was upheld by the Court of Appeals and the Supreme Court. The courts ordered the Dutch government to reduce greenhouse gas emissions by at least 25 percent (below 1990 levels) by the end of 2020, marking the first time anywhere in the world that courts have ordered a state to increase its level of climate mitigation to protect citizens’ human rights. As van Berkel explained, the Dutch courts upheld the “duty of care” and due diligence principles enshrined in Dutch and international law, essentially concluding that nation states like the Netherlands have an obligation to do their part or fair share in reducing globe-warming emissions to the greatest extent possible. “I think this due diligence principle will play a role in future litigation,” van Berkel said.
The Urgenda case directly inspired an Irish environmental group called Friends of the Irish Environment (FIE) to sue the Irish government over its climate policy in a case dubbed Climate Case Ireland. That case, initially dismissed by the High Court, won in a leapfrog appeal to the Irish Supreme Court with the court ruling in favor of the environmental plaintiffs on July 31, 2020. The Supreme Court decided that Ireland’s 2017 National Mitigation Plan lacked specificity and therefore did not comply with the 2015 statute it arose under. Although the ruling did not address FIE’s human rights arguments, it was still significant in demonstrating that governments’ inadequate climate policies can be challenged – and overturned - in court.
“The overall major message from the case is that governments can and will be held accountable in court for their climate obligations,” FIE attorney Andrew Jackson said.
Panelist Roda Verheyen spoke about her work representing plaintiffs in several European climate cases, including one called the People’s Climate Case challenging the European Union’s 2030 climate target. That case has been stuck on the issue of admissibility (standing) and is currently pending on appeal. Verheyen has also worked on climate cases in Germany - one case is now closed and the other is just beginning. That new case features young people as plaintiffs bringing constitutional claims against the German government challenging the German Climate Change Act enacted in December 2019. Verheyen said this new climate law fails to provide a pathway for emissions reduction aligned with limiting global warming to 1.5°C – a threshold that climate scientists warn exceeding will lead to devastating and possibly irreversible “tipping points” and climate breakdown.
“Given the urgency and fact there is so little time left, our argument is essentially to do as much as you can [to avoid this breakdown],” Verheyen explained.
Louise Fournier, legal counsel for Greenpeace International, wrapped up the discussion talking about climate cases (that Greenpeace is supporting) in Norway, Switzerland, France, the Netherlands, and the Philippines. These cases all have human rights arguments, and as Fournier explained, they demonstrate that human rights law can be used to recognize new legal principles and to hold specific sectors and corporate actors accountable. The Philippines’ case for example, though not an official lawsuit (rather an investigation by the country’s Human Rights Commission), is expected to conclude that major fossil fuel producers could be deemed liable for human rights violations due to their sizeable contributions to the climate crisis. The final report on that investigation is expected in the coming months.
“We hope that the outcome of the Philippines’ inquiry will have implications for the Dutch case against Shell as well as for future rights-based cases against fossil fuel companies,” Fournier said. The case in the Netherlands targeting Shell (Milieudefensie et al. v. Shell) is slated for court hearings later this year.