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Climate law’s tipping point
Net Zero Sensemaker

Climate law’s tipping point

Tuesday 9 November 2021

The law is becoming an increasingly powerful tool in holding companies and countries to account on their emissions – but some cases fail to bring the latest science into the courtroom.


Forget, for a moment, about disintegrating ice sheets and rainforest dieback. There’s another tipping point polluters should be paying attention to: fast and potentially irreversible changes are taking place in the world of climate law. 

The number of climate litigation cases has doubled since 2015 and a few high-profile cases could open the floodgates (see below). 

Yesterday was “loss and damage” day at Cop, and loss and damage is one broad heading under which the cases are being filed. Others include

  • human rights, especially those of future generations
  • crimes against nature, which could gain legal status thanks to efforts to make “ecocide” a crime under international law
  • non-compliance with national laws, such as those that now define the UK’s net zero targets

Three of the estimated 1,800 climate-related cases currently going on across the world show the main legal trends in action:

Luciano Lliuya vs RWE AG

In 2015, Saúl Luciano Lliuya, a farmer from Huaraz, Peru, began the arduous process of suing the German coal company RWE for its contribution to global temperature rise. He claims the company is partly to blame for glacier melt that threatens to burst a nearby dam and inundate his home. RWE’s emissions account for 0.5 per cent of the global total; so Luciano Lliuya is demanding the coal company pay 0.5 per cent towards the cost of a new dam. He’s represented by Roda Verheyen, the German environmental lawyer who’s also taking on Volkswagen, and funded by the Bonn-based Foundation for Sustainability. 

The case, if won, would be the first to compensate the plaintiff for loss and damage related to climate change. 

Neubauer et. al vs Germany

In April this year, Germany’s constitutional court ruled that the emissions reduction target laid out in the government’s climate protection act was insufficient and must be updated by 2023. Young activists backed by Fridays for Future and Greenpeace alleged that by only requiring a 55 per cent reduction in greenhouse gases by 2030, their human rights had been violated under Germany’s Basic Law. 

The case built on precedent from similar cases fought in Ireland and by the Urgenda Foundation in the Netherlands, but it was unique in forcing the government to bring forward its deadline for emissions reductions. Luisa Neubauer, the lead complainant, said in Glasgow yesterday: “This opens the doors wide for other states and companies to be sued under this decision. This will change the game.” She could be right. Most targets announced at Cop have a horizon of 30 plus years, and the argument goes that this leaves a disproportionate burden on younger generations. Suing for shorter timeframes offers a solution.

Milieudefensie vs Shell 

In May, Royal Dutch Shell was ordered to cut its carbon emissions by 45 per cent by 2030 after a court in The Hague upheld a claim by Friends of the Earth and 17,000 other plaintiffs that it wasn’t cutting fast enough. Shell said it would appeal but is already changing its behaviour, not least by pulling out of Nigeria

“This is the first time a company has been told by a court to reduce emissions,” says Joana Setzer, Assistant Professor at the Grantham Institute on Climate Change. “But the Shell case is also different because it concerns the company’s future operations and demands that they will have to look very different.” 

Scientists on the stand. A big obstacle to effective climate litigation is out-of-date science. Friederike Otto, a climate modeller and co-author of the latest IPCC report on climate change, has done research on 80 cases in which plaintiffs were failing to use the latest evidence.

This is an own-goal that the IPCC report could prevent. It’s now seen as a solid basis for attribution including for the causal linking of extreme weather events to climate change. “There’s a huge opportunity to advance cases of this type,” Otto says, “but it needs the law and science to work together.” 

A watershed? Since the case of the Urgenda Foundation vs the Dutch government in 2019 forced the country to curtail its carbon emissions, around 50 similar cases have been brought against other governments. With each ruling, precedent accumulates. Even cases that fail can prove useful in the long run. “We’re already seeing an avalanche of climate litigation, especially over the past three years,” Setzer says. “If a court decides in favour of one of these liability cases, it could really accelerate.” 


The Readout

At yesterday’s ThinkIn in partnership with Ericsson, we heard from Baroness Martha Lane Fox, Ericsson’s Climate Change Action Program Manager Emelie Öhlander and CEO of the Climate Group Helen Clarkson on how far can we go with the technology we already have.

Key points:

  • The tech sector is lagging behind the rest of business in funding climate focused solutions.
  • The technology we need already exists, there isn’t an innovation problem, only a scale problem.
  • Greater diversity in decision making is essential to maximising the chances of success.   

If you missed the ThinkIn, you can read our summary and watch it back in our app and online


watch now

Catch up on our series of ThinkIns at The New York Times Climate Hub in Glasgow


eco-nomics

Slippery bankers
It’s been all of five days since Mark Carney and Rishi Sunak blew their trumpets for a $130 trillion net zero financial alliance, and already it turns out a subset of signatories has been asking for more time. The Bureau of Investigative Journalism has seen an email sent in March from the head of HSBC to the Net Zero Banking Alliance asking for three years rather than 18 months to produce plans for removing carbon-intensive investments from their portfolios. HSBC says the email doesn’t represent its position now – merely that of a sub-subset of banks including Bank of America, JP Morgan and Barclays of which it held a rotating presidency in the spring. There are two ways of looking at this. One is as evidence that banks actually take these deadlines seriously. The other is dismay. A smaller asset manager’s head of ethics called the email “incredibly discouraging”. Banks shouldn’t be left to set their own deadlines if they matter, and they do.


science and tech

Lying trees
There’s been a lot of self-congratulation at Cop about reduced emissions and renewed pledges. Unfortunately, the numbers don’t add up. Using new satellite data, the Washington Post has identified a gap of 8.5 to 13.3 billion tonnes between actual emissions and those reported to the UN. At the high end, that’s close to China’s total emissions, and enough to nudge the needle away from “keeping 1.5 alive”. The main reason for the gap is misrepresentation of how much carbon is absorbed by land, notably in less developed countries. Malaysia, for example, claims an annual forest carbon sink of 243 million tons for about 68,000 square miles. That’s not far from Indonesia’s claim for five times as much forest. And the Central African Republic’s UN data claimed 1.8 billion tonnes absorbed, which would have offset the annual emissions of Russia. The UNFCCC – the UN department responsible for Cop – admitted to the Post “more needs to be done” to address the inconsistencies. Indeed. 


engagement and activism

Topping’s turtleneck
Every day of Cop, Nigel Topping, the UN’s high level climate champion, has shared photos of himself on Twitter wearing sustainable clothing to “highlight the devastating impact the fashion industry has on our environment”. The UN says fashion is responsible for 2 to 8 eight per cent of global GHG, largely due to intensive and wasteful manufacturing processes. It was only in 2018 that the industry produced a “charter” for reducing emissions. That charter was quietly renewed yesterday at Cop with upgraded targets for 171 companies and supporting organisations and an overall goal of cutting emissions by half by 2030, instead of by 30 percent. Why is it that fashion seems to operate without the scrutiny faced by other major carbon contributors? Perhaps a lack of leadership. The designer Stella McCartney told an event at the NYT’s climate hub yesterday that her industry has managed to sneak under the climate radar. It’s not hard to see why. She dodged questions from the audience about her role in the sector and scalable solutions for the impact fast fashion has. But something’s changing. After the session she said: “I was definitely seen as an eco-weirdo, but now us environmentalists are seen as the most fashionable people on the planet” At least Stella’s happy.


policy

Obama’s what ifs
Barack Obama came to Glasgow with three counterfactuals and a warning. What if Trump hadn’t pulled the US out of Paris for four years? What if Xi had come to Glasgow? What if Putin had come too? Those were the (implied) counterfactuals. He didn’t name Trump and he left the questions about Xi and Putin hanging by criticising them for not showing up. But they reminded Copsters they’ve got a hand tied behind their backs, which was a downer in a speech intended as an upper. To be honest it was low-energy, short on detail and long on cliché. It was aimed at a young audience but not compelling enough to keep them off their phones. The warning was about the importance of listening and changing minds. “We have to persuade people who either currently don’t agree or are indifferent to the issue,” he said. “We can’t just yell at them or tweet at them.” He’s right. This is too big and urgent for just tweeting. But the big tent could have used a bit more of the old yes we can.

Notable number: 100 million – margin by which Obama’s Twitter following exceeds Biden’s.

Do share this around, and let us know what you think of it.

Thanks for reading.

Barney Macintyre
@barneymac

Additional reporting by Phoebe Davis and Giles Whittell.



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