Download climate change and international justice

VIETNAM LAWYERS ASSOCIATION
THE XVIIth IADL CONGRESS
INTERNATIONAL ASSOCIATION
OF DEMOCRATIC LAWYERS
THE HUMAN RIGHT TO A HEALTHY ENVIRONMENT
PART I: Climate Change And International Justice
Richard J. Harvey, IADL Bureau Member
Haldane Society, U.K.
The progressive world owes a never-ending debt to the people of Vietnam who
sacrificed so much and so long in vindicating their right to self-determination. No
country could be a more appropriate host for our Association’s XVIIth Congress as the
peoples of the world face an unprecedented threat to humanity.
Activist lawyers have been called upon in the past to confront threats to humanity.
The founders of our Association participated in the Nuremburg War Tribunals and led
the world in creating the Universal Declaration of Human Rights. IADL members fought
to outlaw the crime of apartheid and subsequently wrote South Africa’s exemplary
constitution; we have consistently championed the rights of the Palestinian people and
the rights of all peoples to peace, self-determination and sustainable development.
Today, as global climate change threatens human rights at every level, the progressive
legal community has an important part to play in fighting for the human right to a healthy
environment.
In the words of Frederick Douglass, the great anti-slavery activist, 160 years ago:
“If there is no struggle there is no progress. Those who profess to favor freedom and
yet depreciate agitation … want crops without plowing up the ground, they want rain
without thunder and lightening. They want the ocean without the awful roar of its many
waters … Power concedes nothing without a demand. It never did and it never will.” 1
His references to crops, rain and oceans – and, indeed, to power – take on new
significance in the context of climate change. The first and worst impacts of climate
change are hitting the poor in the developing world: droughts in sub-Saharan Africa;
floods in China, Bangladesh and India; the acidification and pollution of the oceans; the
threat of rising sea levels. The most vulnerable are forced to pay, with their livelihoods
and their very lives, for the spiralling global costs of climate change.
Douglass, Frederick. [1849] “Letter to an abolitionist associate,” In Organizing For Social Change: A Mandate For Activity In The 1990s, K.
Bobo, J. Kendall, and S. Max, Eds. (Washington, D.C. 1991).
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These changes result largely from the short-sighted greed of TNCs engaged in
the criminal exploitation of human beings and natural resources. Those corporations
are spending tens of millions of dollars, not on measures to reduce greenhouse gas
emissions, but on payments to politicians and propaganda to the public, trying to
maintain the lie that climate change is not a problem.2
Vietnam has enjoyed one of the best development records in recent years of any
country in the world. It reduced its poverty rate from about 58& of the population in 1993
to 18% in 2006 and is on track to meet most of its Millennium Development Goals by
2015 and has. However, Vietnam is also highly vulnerable to climate change – despite
being one of those countries least responsible for greenhouse gas emissions. 3
Its government’s impressive achievements are seriously jeopardised by likely
increases in extreme rainfall and drought, rising sea levels and temperatures.4 Sea
levels are likely to rise by five to seven metres before the end of this century. Unless
urgent steps are taken now, that would mean that this conference centre and much of
Hanoi would be submerged beneath the sea.5
130 million people today live in the Low Coastal Elevation Zone of India, Pakistan
and Bangladesh, including major cities such as Mumbai, with a regional average of 10
metres below sea level.6 If climate change continues at anything like the present rate, it
will condemn the next generation to become EDPs – Environmentally Displaced
Persons.
Climate change threatens the very existence of certain U.N. Member States.
Although the emission of greenhouse gases (GHGs) has never been classified as an
“act of aggression,” if you are from Tuvalu, Vanuatu or the Maldive Islands, global
warming is as predictably disastrous as any war. The duty upon all Member States
under Article 1(3) of the UN Charter to achieve international cooperation in solving
international problems of an economic, social, cultural or humanitarian character is, or
should be, clear.
“Barack Obama’s key climate bill hit by $45 million PR campaign,” Guardian, London 12 May 2009.
“Viet Nam: climate change, adaptation and poor people,” Oxfam International Report, November 2008, at
http://www.oxfam.org.uk/resources/policy/climate_change/viet_nam_report08.html
4
Id.
5
See map of rising sea level projections, at http://www.greenpeace.org/international/campaigns/climate-change/impacts
6
See Greenpeace report at http://www.greenpeace.org/international/campaigns/climate-change/impacts
2
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The United States under President Obama has at last emerged from almost a
decade of “climate denial” 7 and today accepts that the crisis of climate change is, in the
words of Secretary of State, Hillary Rodham Clinton: “Global in scope and national in
impact.”8
“It is an environmental issue, a health issue, an economic issue, an energy
issue, and a security issue … Desertification and rising sea levels generate
increased competition for food, water and resources … we also have seen
increasingly the dangers that these transpose to the stability of societies and
governments. We see how this can breed conflict, unrest and forced migration.
So no issue we face today has broader long-term consequences or greater
potential to alter the world for future generations.”9
Activist lawyers are taking up this challenge in various parts of the world, using
creative litigation strategies, not just in the conventional courtroom but before
international, regional and national commissions and regulatory bodies. The following
section offers an overview of some of the areas where we as lawyers can act to make a
difference.
COMBATING CLIMATE CHANGE IN THE COURTROOM
Test cases, if brought at the politically appropriate time, given sufficient public
support and the correct litigation strategy, can aid in various struggles for civil, political,
economic and social rights. Climate change litigation may serve more than one
purpose, for example:

Educationally; to force governments or corporations to disclose
information which may help to educate the public about the potential
environmental impact of a given project (e.g., by using the rules of disclosure in
criminal or civil cases or by employing freedom of information legislation);

Proactively; to confront and punish a notorious polluter;

Defensively; to protect campaigners facing criminal charges or civil
suits, while causing embarrassment to the targets of their campaigns;
“Obama administration breaks with the years of ‘climate change denial’”, Guardian, 17 April 2009.
Secretary of State Hillary Rodham Clinton’s Remarks at the Major Economies Forum on Energy and Climate, 27 April 2009, at:
http://www.state.gov/secretary/rm/2009a/04/122240.htm
9
Id.
7
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
Tactically; to bring parties to the negotiating table with the aim of
settling out of court.
“Winning” is not simply a matter of the court ruling in your favour. For
environmental campaigners, an adverse ruling does not always mean the issue has
been lost. As litigators, we naturally want to win the battle and win the war but in certain
cases it may be just as important to lose the battle but win the war. The important point
to evaluate carefully before inviting or initiating litigation is to avoid losing the battle and
losing the war. Some of the following examples will illustrate this point.
1. The United States: the Greatest Polluters, the Greatest Litigators.
The Intergovernmental Panel on Climate Change notes in its Fourth Assessment
Report: “[L]itigation is likely to be used increasingly as countries and citizens become
dissatisfied with the pace of international and national decision-making on climate
change … there is a decided interest in pursuing the legal route as the means to
pushing for action on climate change.”10
Nowhere has the trend to increased litigation been more marked than in the
United States. The U.S. is home to many of the world’s largest polluting corporations11
and to some of most proactive law firms in the world. Environmental NGOs such as
Greenpeace, Friends Of the Earth and the Pew Center on Global Climate Change
exercise lobbying influence with federal and state governments.
Most of the climate change cases brought in the U.S. over the past five years
resulted from the Bush administration’s failures to enforce the 1970 Clean Air Act12 and
the 1969 National Environmental Policy Act (NEPA).13 During the Bush years, 44
statutory claims were filed to halt proposed federal and state projects because
environmental impact requirements had not been complied with. By contrast, only five
such suits had been filed during the previous decade. Since 2007, some 54 legal
challenges have been brought throughout the United States to halt government plans to
10
Climate Change 2007: Mitigation. Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on
Climate Change [B. Metz, O.R. Davidson, P.R. Bosch, R. Dave, L.A. Meyer (eds)], Cambridge University Press, Cambridge, United Kingdom
and New York, NY, USA, at p.793.
11
According to the US Department of Energy, the United States (including Alaska and Hawaii) “emits more greenhouse gas pollution than South
America, Africa, the Middle East, Australia and Asia all put together,” cited in Al Gore, An Inconvenient Truth (New York, 2007), pp.156-157.
12
(42 U.S.C. §7401 et seq.)
13
(42 U.S.C. §4321 et seq.) See “Climate Change Litigation Chart,” Center for Climate Change Law, created by Prof. Michael B. Gerrard and J.
Cullen Howe, Columbia University and Arnold & Porter LLP, www.climatecasechart.com.
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develop coal fired electricity generating plants. 14 cases have been brought since 2003
involving automotive vehicle standards.14
Some states have joined together to combat climate change in the courtroom. In
one vehicle emissions case, 12 states and three major cities15 combined to force the
Environmental Protection Agency to regulate CO2 and other GHGs as pollutants under
the Clean Air Act.16 In another case, eight US States, New York City and two land
conservation trusts went to court in July 2004 seeking injunctive relief against the five
US power companies with the largest CO2 emissions, on the grounds that they
contribute to a public nuisance (global warming). That case, though dismissed, is on
appeal.17
Although only five climate change actions were brought in the U.S. in the whole of
the 1990s, 11 came before the courts between 2000 and 2005. Following the entry into
force of the Kyoto Protocol in 2005, 11 suits were filed in 2006, rising to 31 in 2007 and
71 in 2008. 15 suits were brought in the first quarter of 2009.18
When lawyers are able to force corporations and government agencies to defend
their actions and policies in the courtroom, already an important step has been taken
towards winning the struggle against climate change. On the home ground of the
world’s greatest polluter, the litigation struggles of the past eight years helped to
discredit neoconservative climate denial and to create a ‘legal climate’ in which the
Obama administration has felt empowered to speak out on the issue domestically and
internationally. They will be judged by their results.
2. Invoking Human Rights in Environmental Litigation: Four Case Studies
Is there a legally enforceable human right to a clean and healthy environment? If
not, why not? As early as 1961, the European Social Charter proclaimed the right to
health with, “in particular, the guarantee of a healthy environment.”19 Principle 1 of the
1972 Stockholm Declaration asserted: “Both aspects of man’s environment, the natural
and the man-made, are essential to his well-being and to the enjoyment of basic human
14
Id.
California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington
together with New York City, Baltimore, and Washington, DC.
16
Massachusetts v Environmental Protection Agency, 549 U.S. ___, (2007) http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
17
Connecticut, et al. vs. American Electric Power Company Inc., et al.; 406 F.Supp.2d 265 (S.D.N.Y. 2005), appeal pending in the Court of
Appeals for the Second Circuit.
18
“Climate Change Litigation Chart,” note 13 above, figures extrapolated by the author.
19
European Social Charter, 1961, revised 2006 http://www.coe.int/t/dghl/monitoring/socialcharter/
15
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rights and life itself.”20 In 1981, the African Charter on Human and Peoples’ Rights
declared: “All peoples shall have the right to a general satisfactory environment
favourable to their development.”21 In 1989, Article 11 of the Additional Protocol to the
Inter-American Convention on Human Rights asserted: “(1) Everyone shall have the
right to live in a healthy environment and to have access to basic public services. (2)
The States Parties shall promote the protection, preservation and improvement of the
environment.”22
From the environmentalists’ point of view, articulating environmental rights as
human rights has the advantage of empowering individuals and NGOs to take action
against states, rather than limiting urgent environmental law enforcement to sometimes
protracted and dilatory negotiations between states. Where human rights have been
incorporated into domestic law, climate change activists may use them as both sword
and shield; a sword to attack decisions of national and regional governments and
policies of local and transnational corporations; a shield to defend themselves from
criminal or civil liability for reasonable and proportionate actions of protest (the
“necessity defence”).23
Human rights arguments have been used to support cases brought within states
as well as in international or regional tribunals, where States Parties have accepted the
right of individual petition.24 As Professor Alan Boyle has argued,25 the human rights
approach to environmental litigation “recognise[s] the vital character of the environment
as a basic condition of life, indispensable to the promotion of human dignity and welfare,
and to the fulfilment of other human rights.”26
In Europe, fresh potential for climate change litigation could arise if a proposal for
a new Protocol to the European Convention on Human Rights is adopted. On 15 May
2009, Lluís Maria de Puig, the President of the Parliamentary Assembly of the Council of
Europe announced that the Assembly will debate in September a proposal for an
20
Principle 1, Stockholm Declaration on the Human Environment, June 16, 1972
African Charter on Human Rights and Peoples’ Rights, 27 June 1981, rep. 21, ILM (1982) Art. 24
Additional Protocol to the Inter-American Convention on Human Rights, 1989, Art.11, rep. 28 ILM, 156
23
See, e.g., “Kingsnorth trial: Coal protestors cleared of criminal damage to chimney,” Guardian, 10 September 2008, considered further below.
http://www.guardian.co.uk/environment/2008/sep/10/activists.carbonemissions. See also, the case of the “Tokyo Two”,
http://www.greenpeace.org/international/campaigns/oceans/whaling/ending-japanese-whaling/whale-meat-scandal, also considered below.
24
E.g. under European Convention, Art. 25; American Convention, where Art. 44 provides: “Any person or group of persons, or any
nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission
containing denunciations or complaints of violation of this Convention by a State Party”; See also ICCPR, First Optional Protocol.
25
A. Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment”, in A. Boyle and M. Anderson (eds.) Human
Rights Approaches to Environmental Protection, (New York, 1996).
26
Id., p.49
21
22
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Additional Protocol to the ECHR, inscribing the right to a healthy environment into the
European system of rights protection. He said: “We believe that living in a healthy
environment is a basic right that every human being should have … A new protocol to
the Convention is essential if we want our citizens to benefit from the precautionary
principle, guaranteeing the right to live in a healthy and viable environment.” This would
have the potential to cure the present defect in the Convention, which is that the
individual’s right to health and viable environment is only recognised after there has
been proof of serious effects on human health, or on human environment.
27
(a) Human Rights and the Environment in the U.S. – The Kivalina Case:
The native Iñupiat village of Kivalina in North Alaska is beginning to fall into the
ocean. Ice, which formerly acted as a wave barrier, is melting due to carbon dioxide
emissions. The 400 villagers will have to be relocated at a cost of up to $400 million.
However, they are not going quietly; they are taking some of the most powerful
corporations on earth to court. In Kivalina v. ExxonMobil Corp., et al., (2008), they claim
damages against nine oil companies (including ExxonMobil, BP, Chevron,
ConocoPhillips, Royal Dutch Shell, Shell Oil Company), fourteen power companies and
one coal company.
Although the plaintiffs use the term “public rights” rather than “human rights”, their
complaint under the federal common law of public nuisance echoes the rights
guaranteed under the UDHR and ICESCR28 in asserting that:
“Defendants’ emissions of carbon dioxide and other greenhouse gases,
by contributing to global warming, constitute a substantial and unreasonable
interference with public rights, including, inter alia, the rights to use and enjoy
public and private property in Kivalina. In the exercise of those rights,
Plaintiffs suffer special injuries from defendants’ contributions to global
warming, in that global warming will diminish or destroy Plaintiffs’ public and
private real property (and the real property of their residents and Tribal
members). The Plaintiffs’ entire village must be relocated because of the
nuisance at a cost of millions of dollars.”29
27
Addressing the Nevsky International Ecological Congress in St Petersburg, jointly organised by PACE and the Interparliamentary Assembly of
the Commonwealth of Independent States (CIS).
28
See Footnotes 36 through 39 above.
29
Native Village of Kivalina and City of Kivalina v. ExxonMobil Corporation et al., US D.C. N. Cal., Complaint for Damages. The invaluable
Climate Justice Programme website has the full text of the complaint,
http://www.climatelaw.org/cases/country/us/kivalina/Kivalina%20Complaint.pdf, para. 250.
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Historically, as the Pew Center on Global Climate Change has noted: “nuisance
claims have been rejected by all previous courts in the climate change context. The
main problem … has been showing that individual polluters’ emissions were the
proximate cause of the plaintiffs’ harm.”30 A further problem lies in proving the degree to
which the plaintiffs’ harm was increased due to an individual defendant’s emissions.
The Kivalina suit gets round this by including claims for civil conspiracy and “concert of
action,” holding defendants jointly and severally liable.
The complaint invokes reports from the U.S. Government Accounting Office and
U.S. Army Corps of Engineers that tie erosion in coastal areas of Alaska to global
warming. It cites the Arctic Climate Impact Assessment (ACIA) to show that defendants
“conspired to create false scientific debate about global warming in order to deceive the
public.”31
Because of their location and lifestyle, the villagers of Kivalina say that: “The
impact of global warming on Plaintiffs is more certain and severe than on others in the
general population.” They accuse ExxonMobil, AEP, BP America Inc., Chevron
Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern of
engaging in:
“… an agreement with each other to mislead the public with respect to the
science of global warming and to delay public awareness of the issue – so that
they could continue contributing to, maintaining and/or creating the nuisance
without demands from the public that they change their behavior as a condition of
further buying their products … Defendants were concerned that the public would
become concerned by global warming and that the growing concern would force
a change in the Conspiracy Defendants’ behavior which would be costly.
Delaying these costs was the major objective of the conspiracies described
herein.”32
In support of their case, the villagers charge that the defendants have led a
campaign of disinformation about climate change. They cite a report by the Union of
Concerned Scientists33 to the effect that ExxonMobil has:
30
Commentary on the lawsuit at http://www.pewclimate.org/judicial-analysis/Kivalina-v-ExxonMobilCorp.
Complaint para. 5
32
Kivalina complaint, para. 269
33
Union of Concerned Scientists, Smoke, Mirrors & Hot Air: How ExxonMobil Uses Big Tobacco’s Tactics to Manufacture Uncertainty on
Climate Science, Jan. 2007, at 35, http://www.ucsusa.org/assets/documents/global_warming/exxon_report.pdf
31
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
“Manufactured uncertainty by raising doubts about even the most
indisputable scientific evidence.

Adopted a strategy of information laundering by using seemingly
independent front organizations to publicly further its desired message and
thereby confuse the public.

Promoted scientific spokespeople who misrepresent peer-reviewed
scientific findings or cherry-pick facts in their attempts to persuade the media and
the public that there is still serious debate among scientists that burning fossil
fuels has contributed to global warming and that human-caused warming will
have serious consequences.

Attempted to shift the focus way from meaningful action on global
warming with misleading charges about the need for ‘sound science.’”34
They adduce evidence that:
“[D]espite the scientific consensus about the fundamental understanding
that global warming is caused by carbon dioxide and other heat-trapping
emissions, ExxonMobil has funneled about $16 million between 1998 and 2005 to
a network of ideological and advocacy organizations that manufacture uncertainty
on the issue. Many of these organizations have an overlapping – sometimes
identical – collection of spokespeople serving as staff, board members, and
scientific advisors. By publishing and republishing the non-peer-reviewed works
of a small group of scientific spokespeople, ExxonMobil-funded organizations
have propped up and amplified work that has been discredited by reputable
climate scientists.”35
The San Francisco-based Center on Race, Poverty and the Environment,
together with the Native American Rights Fund in Anchorage, have crafted a novel and
potentially powerful tool to hold accountable those who contribute most egregiously to
climate change. They have drawn on the litigation against big tobacco companies
where, rather than attacking the companies’ marketing of a harmful product, states have
used civil conspiracy and concert of action to target the companies’ PR campaigns
which intentionally misled the public about the effects of their products. Whatever the
34
35
Kivalina complaint, para. 247
Id., para. 248
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court’s ultimate verdict, it is safe to assume that these 400 villagers are already
changing the climate in the boardrooms of the world’s most powerful transnational
corporations.
(b) Environmental Issues before The Inter-American Commission on Human
Rights
Another case on behalf of indigenous peoples in the Arctic was filed in December
2005, citing similar arguments and research to the Kivalina case. However, instead of
targeting the polluters themselves, the claimants took the U.S. government to task for
failing to protect the Inuits’ human rights. They petitioned the Inter-American
Commission FOR “relief from human rights violations resulting from global warming and
climate change caused by acts and omissions of the United States.”36 Their petition
asserts that:
“Nowhere on Earth has global warming had a more severe impact than the
Arctic … The impacts of climate change, caused by acts and omissions by the
United States, violate the Inuit’s fundamental human rights protected by the
American Declaration of the Rights and Duties of Man and other international
instruments. These include their rights to the benefits of culture, to property, to
the preservation of health, life, physical integrity, security, and a means of
subsistence, and to residence, movement, and inviolability of the home.” 37
The petition continues:
“Because Inuit culture is inseparable from the condition of their physical
surroundings, the widespread environmental upheaval resulting from climate
change violates the Inuit’s right to practice and enjoy the benefits of their culture.
The subsistence culture central to Inuit cultural identity has been damaged by
climate change, and may cease to exist if action is not taken by the United States
in concert with the community of nations.”38
Further violations include the right of the Inuit to use and enjoy their traditional
lands and personal property; their right to health and life; their rights to residence and
36
Petition to the Inter-American Commission on Human Rights seeking relief from violations resulting from global warming caused by acts and
omissions of United States, filed 7 December 2005. http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf
37
Petition, supra, p.13
38
Id.
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movement and the inviolability of their homes; and their right to their own means of
subsistence.
The Inuits’ tactical approach was to avoid taking on the wealthy creators of GHGs
directly in protracted and expensive courtroom battles. Instead, they are seeking a form
of international equitable relief, asking that the Commission:

Make an onsite visit to investigate and confirm the harms suffered
by the Inuit;

Hold hearings to investigate their claims;

Prepare a report setting forth all the facts and applicable law,
declaring that the United States of America is internationally responsible for
violations of rights affirmed in the American Declaration and recommending that
the U.S.:
o
Adopt mandatory measures to limit its emissions of
greenhouse gases and cooperate in efforts of the community of nations –
as expressed, for example, in activities relating to the United Nations
Framework Convention on Climate Change – to limit such emissions at the
global level;
o
Take into account the impacts of U.S. greenhouse gas
emissions on the Arctic and affected Inuit in evaluating and before
approving all major government actions;
o
Establish and implement, in coordination with Petitioner and
the affected Inuit, a plan to protect Inuit culture and resources, including,
inter alia, the land, water, snow, ice, and plant and animal species used or
occupied by the named individuals whose rights have been violated and
other affected Inuit; and mitigate any harm to these resources caused by
US greenhouse gas emissions; and
o
Establish and implement, in coordination with Petitioner and
the affected Inuit communities, a plan to provide assistance necessary for
Inuit to adapt to the impacts of climate change that cannot be avoided.”39
39
Id., p. 16
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On 1 March 2007 the petitioners presented testimony at hearings of InterAmerican Commission Washington DC. The case remains under review.
(c) Human Rights in the African Context: The Nigerian Gas Flaring Case
The United States is not the only legal battleground between small and
economically weak victims of GHG emissions and the polluting TNCs. In Nigeria,
obtaining a court injunction against Shell was a dream come true but enforcing it has
proved a nightmare.
In 2005, eight communities in the Niger Delta filed a case in the Federal High
Court of Nigeria against the Shell, ExxonMobil, ChevronTexaco, TotalFinaElf and Agip
joint venture companies, the Nigerian National Petroleum Corporation, and the Nigerian
government, to stop gas flaring.40
Petroleum is by far Nigeria’s most valuable export.41 However, almost three
quarters of Nigeria’s population live in dire poverty and that poverty is most intense in
the Delta area, which produces the country’s oil wealth.42 The refining companies only
want the oil and not the gas, so they burn off the gas in a process known as ‘flaring.’
If refined, the gas could be worth $15 million each day to Nigeria’s economy. But
for endemic corruption, this could help combat poverty and joblessness.43 Instead, gas
flaring creates large quantities of pollutants. Mercury, benzene and lead are often
released into the environment if the gas is flared at too low a temperature. This cocktail
of chemicals causes cancers, respiratory diseases and blood disorders in humans.
Flaring also releases nitrogen oxide and sulphur dioxide, creating acid rain that
kills fish and defoliates vegetation. Flaring in Nigeria has contributed more GHGs than
all other sources in sub-Saharan Africa combined.44 According to the UNDP and World
Bank, the practice costs Nigeria about US$2.5 billion annually, 45 while 66% of its
population live on less than US$1 a day.46 In 2004, Shell reportedly lived on about
40
The single case filed by 8 communities in June 2005 was subsequently withdrawn and replaced by a number of separate community cases in the
Federal High Court located in their respective jurisdictions. The case we are chiefly concerned with here is that of Gbemre/Iwherekan v. Shell
Petroleum Development Company of Nigeria Ltd., Nigerian National Petroleum Corporation & Attorney General of the Federation of Nigeria,
Federal High Court of Nigeria, Benin City.
41
Nigeria received more than $350 billion in oil revenues between 1970 and 2005, according to the expert report of Michael J. Watts filed in
Bowoto v Chevron, October 2005, at para.33.
42
See World Bank, Nigeria: Country Brief 2005, (2005), available at http://www.worldbank.org
43
Unemployment ranges from 75% to 95% in the Delta according to Watts, supra.
44
World Bank, Nigeria: Country Brief 2002, (2002), available at http://www.worldbank.org
45
Strategic Gas Plan for Nigeria, Joint UNDP/World Bank Energy Sector Management Assistance Programme (ESMAP) (February 2004), page
13, paragraph 1.13., cited in http://www.climatelaw.org/cases/cases/case-documents/nigeria/gas-flaring-in-nigeria.pdf
46
World Bank, Nigeria: Country Brief 2005, (2005), available at http://www.worldbank.org
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US$50 million a day, ExxonMobil on about US$69 million a day, ChevronTexaco on
about US$36 million, TotalFinaElf on about US$31 million and Agip on about US$15
million.47
For human rights litigators, the good news came in November 2005 when, in
Gbemre v Shell et al., Justice Nwokorie in the High Court of Nigeria issued a landmark
declaration:
“[T]hat the Constitutionally guaranteed fundamental rights to life and
dignity of human person provided in Sections 33(1) and 34(1) of the Constitution
of Federal Republic of Nigeria, 1999 and reinforced by Arts 4, 16 and 24 of the
African Charter on Human Rights and Peoples’ Rights (Ratification and
Enforcement) Act, Cap.A9 Vol.1 Laws of the Federation of Nigeria, 2004
inevitably includes the right to clean, poison-free, pollution-free and healthy
environment.”48
The judge held flaring to be a violation of the constitutionally-guaranteed rights to
life, “including healthy environment;” he ordered Respondents to cease flaring
immediately and he also found that they had violated the law by failing to carry out an
environmental impact assessment in the applicants’ community; and he ordered them to
“take immediate steps to stop the further flaring of gas.” 49 He also ordered Nigeria’s
Attorney General and Ministry of Justice to amend the law so as to remove from the
statute book all provisions which purported to permit gas flaring.50
However, the bad news came a year later, when Justice Nwokorie was removed
from the case and transferred to a court in the far north of the country. When
complainants sought to have Shell held in contempt for failure to comply with the court
order, Shell were instead granted a further year within which to file and implement a
detailed scheme to phase out flaring. When the plaintiffs’ lawyer went to the courthouse
in April 2007 to request a copy of the scheme, not only was there no scheme on file, but
the court file itself was mysteriously unavailable.51
“The Oil Industry and Human Rights in the Niger Delta,” testimony of Reverend Nnimmo Bassey, 24 September 2008.
Downloaded from: http://www.climatelaw.org/cases/case-documents/nigeria/ni-shell-nov05-judgment.pdf, p.30
49
Id. at p. 31
50
Id.
47
48
51
See 'Gas Flaring in Nigeria: A human rights, environmental and economic monstrosity', June 2005, the Climate Justice Programme and
Environmental Rights Action: http://www.climatelaw.org/media/gas.flaring/report.
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The Climate Justice Programme has supported this litigation since its inception
and has expressed serious concerns at Shell’s tactics and the Nigerian justice system’s
procedures. As Climate Justice co-director Peter Roderick observes:
“Many disturbing aspects have emerged during the progress of the
[Gbemre] case. First, Shell's lawyers pull out as many delaying tactics as possible
in the court, even trying to get the judge kicked off the case before it has barely
started. Shell then fails to comply with the court order to stop flaring. And now,
after the judge has extended the period of time for Shell to stop flaring, they
ignore the order again and don't even turn up in court.
"To add to this, the fact that the judge has been removed from the case,
transferred to the north of the country, and there have been problems with the
court file for a second time, suggests a degree of interference in the judicial
system which is unacceptable in a purported democracy acting under the rule of
law.”52
Shell and the Nigerian National Petroleum Corporation continue to violate the
human rights and to pollute the environment of the people of the Niger Delta in a case
that is far from over. However, where the rule of law is weak and corruption rife, climate
change litigation in Nigeria seems to be winning the battle but losing the war.
(d) Human Rights in the Courtroom: the “Greenpeace Defence.”
Another potential litigation strategy in seeking accountability for climate change is
known to U.S. lawyers as the “necessity defence” and to British courts as the defence of
“justification.” This has been used successfully in a number of cases by Greenpeace
activists and other environmental campaigners as well as anti-war protestors.
Here the campaigners’ tactic is not to file civil lawsuits. Instead, they seek to
provoke the state into prosecuting them for offences such as criminal damage or
trespass. The ensuing publicity aims to persuade government ministers and TNCs to
change policies and practices which damage the environment.
(i) The GM Acquittals
52
Climate Law Press release 2 May 2007, at http://www.climatelaw.org/cases/country/nigeria/media/2007May2/
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Although this way of campaigning is not exclusive to Greenpeace, 53 I have
chosen to call it the Greenpeace Defence since its use in relation to environmental
issues was pioneered by Greenpeace UK in 1999 when 28 activists were acquitted of
criminal damage after destroying an experimental field of genetically modified crops in
Norfolk, England. The defendants’ obvious sincerity and desire to act in the public good
even caused the officer who arrested them to decide to join Greenpeace!54
However, the acquittals were incidental to the aims of the campaigners. They
were willing to go to jail to publicise the long-term threats to the environment created by
GM crops. Today, ten years later, despite enormous political and economic pressures
from U.S. and British governments and from agribusiness leaders, there has never yet
been a commercial planting of GM crops in the UK. The past ten years have enabled
the science on GM to develop more profoundly and the public today is generally far
better informed in terms of risk assessment and environmental impact concerns related
to GM.
On both a campaigning and a litigation strategy analysis, the Greenpeace
defence in this case represents a clear win/win result for its architects.
(ii) The Kingsnorth Acquittals.
One newspaper headline summed it up: “Cleared: Jury decides that threat of
global warming justifies breaking the law.”55 In this case, the defence strategy was to
put on trial those responsible for the GHG emissions that contribute most to global
warming.
Six Greenpeace activists admitted trying to shut down the Kingsnorth coal fired
power station in Kent, England in October 2007 by occupying its smokestack and
painting the world “Gordon” down the side of its chimney. Their “justification defence”
was based on the proposition that they were legally justified because they were trying to
prevent climate change causing infinitely greater damage to property around the world.
Professor James Hansen, director of NASA’s Goddard Institute for Space Studies
and an advisor to Al Gore, told the jury that: “We are in grave peril.” He agreed with Al
Gore's statement that more people should be chaining themselves to coal-powered
See, for example, “Applause as jury clears ‘Raytheon Six’ of charges,” Belfast Telegraph 12 June 2008, report on the unanimous acquittal of six
anti-war protestors in R v. McCann & Others, Belfast Crown Court 2008.
54
Information provided to the author in interviews with Owen Davies, QC, counsel for Lord Melchett and Sarah Burton, Greenpeace’s campaign
director at the time.
55
By Michael McCarthy, Environment Editor, The Independent, London 11 November 2008.
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stations. “Somebody needs to step forward and say there has to be a moratorium, draw
a line in the sand and say no more coal-fired power stations.”56 He said there is an
immediate need to protect property at risk from climate change. Property at risk from
rising sea levels included parts of Kent, where the power station is located; he also cited
the entire Pacific island state of Tuvalu, areas of Greenland, the Arctic ice sheet, China’s
Yellow River region, the Larsen B ice shelf in Antarctica, coastal areas of Bangladesh
and the city of New Orleans as being at serious risk.
Hansen said the 20,000 tonnes of carbon dioxide emitted daily by Kingsnorth
could be responsible for the extinction of up to 400 species. The jury heard that this one
power station emits the same amount of CO2 as the 30 least polluting countries in the
world combined and that there are advanced plans to build a new coal-fired power
station next door to the existing Kingsnorth site.57
The acquittal of the “Kingsnorth Six” is the first case where preventing property
damage from climate change has been used as a “lawful excuse” defence in court. The
defendants’ ultimate vindication came just over six months later, when the UK’s new
Department for Energy and Climate Change overturned the government’s previous
policy and ruled that it will not allow any new coal-powered plants to be built in Britain
without carbon capture and storage (CCS). Any new plants will have to guarantee 25%
CO2 capture immediately, with 100% capture by 2025. 58
(iii) The Tokyo Two
International human rights law is being cited in another important environmental
case, this time in Japan, offering a new twist to the “necessity defence.” In January
2008, Greenpeace Japan began to investigate claims by whistleblowers that
crewmembers in Japan’s whaling fleet have for years been embezzling valuable whale
meat and selling it for personal gain, apparently with official connivance. The legal
‘sword plus shield’ analysis prepared by Greenpeace’s legal team is instructive for future
climate change cases.59
In April 2008, Greenpeace investigators removed from a courier depot one of four
boxes addressed to a crewmember from the whaling fleet. The contents were listed as
56
http://www.greenpeace.org/international/press/releases/court-major-blow-to-uk-coal-10092008
“Kingsnorth Trial: Coal protestors cleared of criminal damage to chimney,” The Guardian, 10 September 2008
58
“Clean coal push marks reversal of UK climate policy,” John Vidal, environment editor, The Guardian, 23 April 2009,
http://www.guardian.co.uk/environment/2009/apr/23/clean-coal-energy-policy
59
For this analysis, I am particularly indebted to Yuichi Kaido and his partners in the Tokyo Kyodo Law Office, as well as to Daniel Simons,
Greenpeace International’s Legal Counsel, Campaigns and Actions
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‘cardboard’. In fact it contained 23.5kg of whale ‘bacon’, valued at up to US$3,000. The
whistleblowers’ claims were corroborated through further investigation and interviews.
Greenpeace Japan presented its findings at a press conference, and delivered the box
of whale meat to the Tokyo District Prosecutor as evidence of an offence.
The Prosecutor began an investigation but a month later he suddenly dropped it.
The same day he dropped it, 40 police officers raided Greenpeace Japan’s offices and
the homes of 4 staff members, in full glare of the media, who had been tipped off.
Junichi Sato and Toru Suzuki, two of the Greenpeace investigators, were arrested and
held for 26 days. They were questioned daily, strapped to a chair, for up to eight hours
and denied access to counsel. These are common practices in Japan, which have
drawn repeated criticism from the UN Human Rights Committee. Eventually, both were
charged with theft of a box of whale meat and trespass, and released subject to strict
bail conditions. Their trial will take place later in 2009.
In response to the Greenpeace allegations, Japan’s whaling fleet claimed that its
employees traditionally receive portions of whale meat as ‘souvenirs’, and that the meat
is legitimately purchased from the Institute of Cetacean Research (ICR), the
government-subsidised body which performs controversial whale research. The leading
Asahi Shimbun newspaper described this explanation as ‘contrived’ and called for a full
investigation. Greenpeace Japan made a freedom of information request for the
relevant sales contract and paperwork showing payments for meat distributed as
‘souvenirs’. When documents were disclosed, they were almost entirely blacked out
and contained no pertinent information.
The defence team has invoked international human rights law in support of the
“justification” defence, arguing that the defendants’ actions are protected under the
International Covenant on Civil and Political Rights. Their intent was to expose official
corruption and to stir debate about government-subsidised “research” whaling, whose
scientific credentials are the subject of serious international criticism. The Tokyo Two
were exercising their right to freedom of expression, including freedom to “seek, receive
and impart” information under Article 19 of the ICCPR, which Japan has ratified. Their
lawyers argue that the public interest in allowing NGOs to publicise such information is
greater than the interest in safeguarding private property.
This will be Japan’s first “necessity” defence and lawyers for the Tokyo Two plan
to bring international human rights experts to demonstrate that this concept is also
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recognised in the European Court of Human Rights, which has held that, under the
European Convention’s protection of the right to freedom of expression in Article 10, the
duty of a journalist or campaigner to gather and impart information to the public may in
certain circumstances override other duties and responsibilities, such as the duty to
obey criminal law.60
Given that Japan’s criminal courts have a conviction rate in excess of 99%,
Greenpeace may have to prepare for the possibility it may lose this battle. However,
their investigators and colleagues in Japan are very confident of winning the war.
(e) Environmental Threats to World Heritage – the UNESCO Cases
In this section, we will examine another field of creative lawyering, pioneered by
Climate Justice and a coalition of environmental NGOs which petitioned UNESCO’s
World Heritage Committee in 2004 to place a number of environmentally endangered
localities on their List of World Heritage Sites in Danger due to climate change.
(i) Waterton-Glacier International Peace Park
On the first anniversary of the entry into force of the Kyoto Protocol, twelve
conservation organizations from the United States and Canada petitioned the World
Heritage Committee to place Waterton-Glacier International Peace Park on its List of
World Heritage Sites in Danger due to impacts from climate change. The park's glaciers
are disappearing rapidly, resulting in significant damage to the park's vegetation and
wildlife.
Although the U.S. refused to sign the Kyoto Protocol, the petitioners took note of
the fact that just four months before the petition was filed, the U.S. had been elected as
one of the 21 State Members of the World Heritage Committee (WHC).61 They
reasoned that, if Waterton-Glacier were placed on the endangered list, the WHC,
including its new member state, would be required to develop a program of corrective
measures to address the effects of climate change in the park.
At the request of the U.S. and Canada, the Committee had listed WatertonGlacier Park as a World Heritage Site in 1995 because of its outstanding scenic value
and its unique glaciers, biological diversity, hydrology and climate. That listing requires
60
See, Fressoz and Roire v. France (Judgment), Grand Chamber of the European Court of Human Rights (Unanimous, violation of art. 10),
Application no. 29183/95 (21 January 1999); Dupuis, et al. v. France, Chamber of the European Court of Human Rights (Unanimous, violation of
art. 10), Application no. 1914/02 (12 November 2007); Stoll v. Switzerland (Judgment), Grand Chamber of the European Court of Human Rights
(twelve votes to five, no violation of art. 10), Application no. 69698/01 (10 December 2007).
61
http://whc.unesco.org/en/committeemembers/
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Canada and the United States to protect Waterton-Glacier for future generations and to
do all they can to conserve and protect Waterton-Glacier and other World Heritage Sites
within their territories.62 All parties to the 1972 World Heritage Convention commit
themselves to act as a global community to conserve the world's cultural and natural
heritage.63
However, as former U.S. Secretary of the Interior Bruce Babbitt said in 1998: “It’s
increasingly hard to understand why it’s called Glacier National Park, because the
glaciers are getting hard to find.”64 The petitioners asserted that climate change is
causing the rapid retreat of the park’s glaciers, adversely affecting its hydrological
systems, disturbing the balance of its ecosystem and reducing its scenic appeal and
cultural value.65 The park’s managers are powerless to address the true causes,
namely greenhouse gas emissions.66
Under the provisions of World Heritage Endangered Site listing, petitioners urged
corrective measures to focus on reductions in U.S. greenhouse gas emissions,
including:
“[A] plan to reduce reliance on coal to produce electricity through the
promotion of alternative energy sources, like wind power … regulation of
emissions from coal-fired power plants … with a cap-and-trade program for
carbon dioxide emissions … transportation sector reductions, including increases
in fuel efficiency standards, regulation of tail-pipe emissions, and increased
reliance on non-petroleum-based fuels, like ethanol and biodiesel.” 67
(ii) Mount Everest / Sagarmatha National Park, Nepal.
A similar petition was filed with UNESCO over the impact of climate change on
Sagarmatha68 National Park, Nepal, on the anniversary of Kyoto. Almost 67% of the
glaciers in the Himalayan and Tien Shan mountain ranges have retreated in the past
62
See, World Heritage Convention, Article 4.
63
See, World Heritage Convention, Article 6.
64
See Waterton-Glacier Petition, executive summary. Petition filed by the International Environmental Law Project of the Lewis & Clark Law
School, Portland, Oregon, http://www.climatelaw.org/cases/country/intl/unescoglacier/.
65
See above, Waterton-Glacier Petition, executive summary.
66
See above, Waterton-Glacier Petition, executive summary.
67
See above, Waterton-Glacier Petition, executive summary.
68
Sagarmatha, the Nepali name for Everest, translates roughly as “The Forehead of The Sky.” Sagarmatha Petition, available at:
http://www.climatelaw.org/cases/country/intl/unesconepal/
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decade.69 This increases risk of catastrophic glacier lake outburst floods (GLOFs) due
to rapid accumulation of melt-water in lakes whose natural ‘dams’ are likely to burst.70
The melting snow coincides with the summer monsoon season.
Any
intensification of the monsoon is likely to contribute to flood disasters in the Himalayan
catchments and increase the risk of flood in Nepal, Bangladesh, Pakistan and north
India during the wet season.71 In July 2003 the World Meteorological Organization
reported: “Recent scientific assessments indicate that, as the global temperatures
continue to warm due to climate change, the number and intensity of extreme events
might increase.”72 The 10 hottest years in the 143-year-old global temperature record
have now all been since 1990. Increased temperatures to date have already
endangered Sagarmatha National Park and future warming can only have disastrous
consequences. 73
According to UNEP Director Klaus Toepfer:
“The findings from our joint studies in the Himalayas, the roof of the world,
reveal the extent of a new and alarming threat. It is not just the risk to human
lives, agriculture and property that should worry us. Mountains are the water
towers feeding the rivers and lakes upon which all life depends. If the glaciers
continue to retreat at the rates being seen in places like the Himalayas, then
many rivers and freshwater systems could run dry, threatening drinking water
supplies as well as fisheries and wildlife. We now have another compelling
reason to act to reduce emissions of carbon dioxide and other greenhouse
gasses.”74
Petitioners therefore propose that major operations should be undertaken to
prevent GLOFs and other glacier-related hazards in the context of climate change.
They also stress the need for major operations to reduce the risks of GHG-induced
climate change to the Sagarmatha National Park. Nepal is not a major contributor to the
problem, the causes of which lie outside its borders.
IPCC’s Third Assessment Report ("TAR"), Glaciers in Asia, (citing Ageta and Kadota, 1992, Yamada et al., 1996, and Fushimi, 2000) , cited in
Sagarmatha Petition.
70
International Centre for Integrated Mountain Development- Newsletter # 42, Water and Mountains: International Year of Freshwater, "Glaciers
and Glacial Lakes in the HKH- a Resource and a Threat," cited in Sagarmatha Petition
71
Intergovernmental Panel, TAR, "Glaciers in Asia," citing Singh, 1998.
72
Reaping the Whirlwind of Global Warming Extreme weather prompts unprecedented global warming alert -- 03 July 2003 (Independent - UK
Daily), http://news.independent.co.uk/world/environment/story.jsp?story=421166
73
See Sagarmatha Petition generally, particularly at page 28
74
Environmental News Network (Reuters), 6/7/02, Global Warming Blamed for Melting Everest Glacier. http://www.enn.com/news/wirestories/2002/06/06072002/reu_47480.asp
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(iii) Huascaran National Park, Peru.
The petition filed with UNESCO by the Foro Ecologico del Peru and a coalition of
NGOs asserts that similar catastrophes to those threatening Sagamartha National Park
petition will result from climate change in the Huascaran National Park in Peru.75
Petitioners assert that: “Climate change is causing the melting of glaciers that
eventually leads to glacier reduction, to the formation of glacial lakes or an increase in
their size, and to changes in ecosystem composition. The glaciers of the Cordillera
Blanca range in the Huascaran National Park have retreated 25 meters in the last 50
years according to CONIDA, Peru’s aerospace agency.”76
“The Huascaran National Park (HNP) is the name of the protected area
that aims to protect the La Cordillera Blanca … the World’s largest ice-covered
tropical range and Peru’s main concentration of ice … La Cordillera Blanca has
five of the most spectacular peaks exceeding 6,000ms in the Peruvian Andes.
The highest tip, the snow-covered Huascaran rises to an elevation of 6,768 ms.
A total of 722 individual glaciers are recognized in the White Mountain range, and
these cover an area of 723.4 kilometers ... The glaciers are great water reserves,
vital in the water regime of their zone of influence and a main supply for
agriculture and energy generation.”77
Global warming is having a severe effect in Latin America, with glaciers receding
dramatically in past decades and some disappearing altogether.78 Data from ice cores
taken from the Qelccaya and Huascaran ice caps show the 20th Century to have been
the warmest century for the past 6000 years.79
Petitioners request essentially the same remedies as their Nepalese
counterparts.
(iv) Belize Barrier Reef.
The Belize Institute of Environmental Law and Policy also petitioned UNESCO
about the impact of climate change on the Belize Barrier Reef Reserve System. The
WHC describes the reef as: “an outstanding natural system consisting of the largest
barrier reef in the northern hemisphere, offshore atolls, several hundred sand cays,
75
See Peru Petition, at http://www.climatelaw.org/cases/country/intl/unescoperu/
See Peru Petition, at p.2
77
See Peru Petition, at p.10
78
See Peru Petition, at p.24
79
See Peru Petition, at p.27
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mangrove forests, coastal lagoons and estuaries. The system’s seven sites illustrate the
evolutionary history of reef development and are a significant habitat for threatened
species, including marine turtles, manatees and the American marine crocodile.”
Citing UNESCO’s Intergovernmental Oceanic Commission,80 petitioners
demonstrate the threats to the Reef from rising sea levels; changes in sea currents
resulting in interference with ecosystems and increased temperature and precipitation
levels; collapse of fishing industry; coral bleaching, which “jeopardises the life of the
entire ecosystem;”81 cholera and seafood poisoning, increasingly likely due to the
warming of the oceans; and also the impacts on marine and human life of harmful algal
blooms.
Petitioners stress that: “Major conservation operations are necessary for the
conservation of the Belize Barrier Reef both locally at the World Heritage Site to make
the reef system more resilient to global climate change and globally to reduce the
emissions of green house gases that lead to global climate change.”82
They ask that a “Coral Bleaching Response Programme” be set up, like that at
the Great Barrier Reef, to provide early warning of major bleaching events and to
monitor their spatial scope and impact and to further evaluate management policies and
strategies for dealing with mass bleaching events.83 Recognising the climate change
exerts new demands on limited resources, they say: “These changes will require new
resources for protected areas to meet their goal of conserving biodiversity and
ecosystem services.” 84
They call for a global response to the problems of this region, emphasising that:
“Any management plan designed to sustain coral reefs must therefore
include a plan designed to reduce the emissions of greenhouse gases to lessen
the future impacts of climate change. Studies suggest that ‘40% of the world’s
coral reefs will be lost by 2010, and another 20% in the 20 years following unless
urgent management action is implemented.’85 One study stresses that ‘[t]he
80
Available at http://ioc.unesco.org/iocweb/climateChange.php.
See, Belize Petition, p.13 available at http://www.climatelaw.org/cases/country/intl/unescobelize/
82
See, Belize Petition, p.26
83
See, Belize Petition, p.29
84
See, Recommendations of the of Vth IUCN World Parks Congress. “Climate Change and Protected Areas.” 2003. Available at
http://www.iucn.org/themes/wcpa/wpc2003/pdfs/outputs/wpc/recommendations.doc, cited at Petition, p.27
85
Kramer, Philip A. and Patricia Richards Kramer. Ecoregional Conservation Planning for the Mesoamerican Caribbean Reef (MACR), 15 (May
2002)
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recent history of coral reefs suggests that collapse is not impossible and indeed,
that we may be closer to worldwide collapse than we realize.’”86
In relation to Australia’s Great Barrier Reef, a similar petition was filed with
the WHC at the same time as that of Belize.87
(iv) The World Heritage Committee
At its meeting in Durban in July 2005, the WHC expressly took note of four
petitions (Sagarmatha National Park, Huascaran National Park, the Great Barrier Reef,
and the Belize Barrier Reef) for sites to be included on the List of World Heritage in
Danger.88 The Committee noted that: “the impacts of climate change are affecting many
and are likely to affect many more World Heritage properties, both natural and cultural in
the years to come,” and asked the World Heritage Centre to establish a group of experts
to review the scale and nature of the risks and to develop a strategy to help States
Parties to implement appropriate management responses.89
The Bush administration, having gained membership of the WHC, strongly
opposed any further consideration of the petitions. It continued its challenge to the
validity of climate change science and it succeeded in preventing the WHC from placing
the four sites on its endangered list. 90 When the WHC met again a year after Durban, it
heard evidence that 135 of its heritage sites are at risk from climate change. 91 To the
fury of campaigners, the WHC rejected their call for a declaration that the only way to
protect the sites was by governments acting to reduce carbon emissions. A further
proposed resolution to encourage countries to draw on projections from the
Intergovernmental Panel on Climate Change (IPCC) when assessing risks to World
Heritage Sites was also defeated.92
The WHC’s resolution at Durban did lead UNESCO to publish in 2007 its Case
Studies on Climate Change and World Heritage, which outlines 26 case studies
described as “representative of the dangers faced by the 830 sites inscribed on the
Knowlton, Nancy. “The future of coral reefs.” Proceedings of the National Academy of Sciences 98(10), 5419-5425 (May 2001).
See http://www.climatelaw.org/cases/country/intl/unescoaustralia/
88
“Decisions adopted at the 29th session of the World Heritage Committee (Durban 2005), WHC-05/29.COM/22, p. 36, available at
http://www.climatelaw.org/cases/case-documents/unesco/whc-decision-extract.pdf
89
WHC Decision, Durban 2005, supra
90
See “US Government to oppose World Heritage action on climate change,” Climate Justice Programme, 15 March 2006, at:
http://www.climatelaw.org/cases/country/intl/unescoglacier/2006Mar15/.
91
“Heritage Body ‘No’ to carbon cuts,” BBC News, 10 July 2006, http://news.bbc.co.uk/1/hi/sci/tech/5164476.stm
92
“Heritage Body ‘No’ to carbon cuts,” BBC News, supra
86
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World Heritage List.” Director-General of UNESCO, Koïchiro Matsuura, said: “The
international community now widely agrees that climate change will constitute one of the
major challenges of the 21st century,” and he called for “an integrated approach to
issues of environmental preservation and sustainable development.”93 The Case
Studies call for: “The establishment of monitoring and early warning systems and the
artificial draining of glacial lakes are recommended to help avoid disasters.” 94
In relation to marine threats, the Case Studies find that: “70% of the world’s deep
sea corals are expected to be affected by changing conditions related to rising
temperatures and increased oceans acidification by the year 2100. 58% of the world’s
coral reefs - home to hundreds of thousands of fish species - are considered to be at
risk.” The report recommends: “Reducing the effect of other stresses on the coral reefs
from pollution, development and mining.”95
(f) Friends of the Earth, Inc. v Mosbacher/Spinelli
In 2002, Friends of the Earth USA, Greenpeace USA, and the City of Boulder,
Colorado filed a lawsuit in which they were later joined by three California cities.96 The
plaintiffs alleged that Export-Import Bank of the United States and the Overseas Private
Investment Corporation (OPIC) illegally provided more than $32 billion in financing and
insurance to overseas fossil fuel projects over 10 years without assessing whether the
projects contributed to global warming or impacted the U.S. environment, as they were
required to do under the National Environmental Policy Act (NEPA).
Fossil fuel projects financed by the two agencies from 1990 to 2003 produced
cumulative emissions equivalent to nearly eight percent of the world’s annual CO 2
emissions, or nearly one third of annual U.S. emissions in 2003. In August 2005, a
federal judge found that the U.S. cities suffering economic and other damages from
climate change had standing to sue under NEPA, opening up the courthouse doors for
the first time to those injured by climate change.
In February 2009, the case was settled on terms that the Export-Import Bank
shall begin taking carbon dioxide emissions into account in evaluating fossil fuel projects
and create an organization-wide carbon policy. OPIC has set a goal of reducing
greenhouse gas emissions associated with projects by 20 percent over the next ten
93
http://whc.unesco.org/en/news/319
Id.
95
Id.
96
Friends of the Earth, Inc., et al. v. Spinelli, et al. (Civ. No. 02-4106, N.D. Cal.)
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years. Both agencies have committed to increasing financing for renewable energy. 97
In an encouraging note for other climate change litigators, the settlement awarded
$100,000 in Plaintiffs’ attorneys’ fees and costs pursuant to the Equal Access to Justice
Act, (28 U.S.C. § 2412).
Testimony from this case was later used to support the Massachusetts v EPA
decision, where the U.S. Supreme Court ruled that carbon dioxide and other
greenhouse gases are pollutants that can be regulated under the Clean Air Act and
held:98
“The harms associated with climate change are serious and well
recognized. The Government’s own objective assessment of the relevant science
and a strong consensus among qualified experts indicate that global warming
threatens, inter alia, a precipitate rise in sea levels, severe and irreversible
changes to natural ecosystems, a significant reduction in winter snowpack with
direct and important economic consequences, and increases in the spread of
disease and the ferocity of weather events.”
CONCLUDING OBSERVATIONS:
COMBATTING CLIMATE CHANGE IN THE COURTROOM
Lawyers have developed a number of creative litigation strategies in response to
the challenges of climate change. There is no single clear model for climate change
litigation, and litigation itself will not always be the best approach.
Different
circumstances dictate our tactics and strategies. The “law’s delays” – and its costs – are
among the greatest risks. The urgent importance of halting climate change is only
starting to impinge on the consciousness of the public, including the judiciary. Caution is
therefore required before turning to the courts to try to combat the problem.
It took half a century for courts to force the tobacco industry to begin paying for
the human damage caused by products, yet still today the cases continue. International
and domestic courts and tribunals must play their role in the struggle to halt global
warming and to mitigate the worst effects of climate change.
The “Greenpeace defence” offers one useful tool for campaigners and litigators.
Going down the “Tobacco Road” and taking the climate change fight into the halls of
97
98
Friends of the Earth, Inc., et al. v. Spinelli, et al. (Civ. No. 02-4106, N.D. Cal.)
See, Massachusetts v EPA, 549 U.S. ___, (2007) at http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf
VIETNAM LAWYERS ASSOCIATION
THE XVIIth IADL CONGRESS
INTERNATIONAL ASSOCIATION
OF DEMOCRATIC LAWYERS
government and boardrooms of big business can produce worthwhile negotiated
settlements, as Friends of the Earth have proved. The risks of litigation may be
worthwhile, if it can force the world’s greatest polluters to rethink their policies. Already
some oil companies are showing concern about their public image in this regard.
Indeed, BP’s new corporate logo is calculated to look as if the only oil it produces comes
from organically grown sunflowers.
The struggle continues, to get the big polluters to change their policies and not
just their PR. As jurists, we have a clear duty to heed Frederick Douglass’s call to play
our part in this life and death struggle.