Climate Change Liability Research Articles

Processes and principles for producing credible climate change attribution messages: lessons from Australia and New Zealand

Extreme event attribution (EEA) information is increasingly in demand from climate services. EEA messages can: raise awareness about the effect climate change has already imposed, inform climate change liability conversations, and be combined with climate projections to inform adaptation. However, due to limitations in observations, models and methods, there are barriers towards operationalising EEA in practice. Operational services will need EEA to be done transparently and using preset formats. Here we review recent experience and practice in EEA in Australia and New Zealand with a view to inform the design of an EEA component of climate services. We present a flow chart of the processes involved, noting particular care is needed on the trigger, event definition, and climate model evaluation, with effective stage gates. We also promote the use of tailored causal network diagrams as a standard tool to inform an EEA study and communicate results, with particular care needed for messages on events with lower confidence or complex sets of influences, including tropical cyclones and extratropical cyclones. We suggest that extending EEA to impact attribution is essential for making EEA messages salient but requires an uplift in forming interdisciplinary teams and in granular exposure and vulnerability datasets and is likely to raise new interdisciplinary methodological questions. Finally, we suggest communication of EEA messages can learn more from its origins in medical epidemiology.

Civil liability for climate change? The proposed tort in Smith v Fonterra with reference to France and the Netherlands

AbstractAs we enter into a period of unprecedented climate instability, litigation is becoming an attractive way to hold private entities accountable for their contribution to global warming. In Smith v Fonterra, New Zealand's Supreme Court is considering whether a common law duty to limit emissions should form part of New Zealand's environmental protection framework. This follows the development of several civil liability mechanisms for environmental damage in overseas jurisdictions. This article examines the implementation of civil liability for climate damage in France and the Netherlands, illustrating the difficulties of effectively dealing with climate change, and its destabilising effect on the law. France implements civil liability mostly on the basis of traditional tort rules, which function to severely restrict its scope. Conversely, the Dutch judiciary introduced a due diligence obligation that requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for private entities to be held civilly liable for their contribution to climate change, there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence.

Climate Change Liability, Negative Emissions and Biodiversity Restoration

Abstract This article is about climate liability and the stimulation of negative emissions through nature restoration. Such a measure can contribute to the reduction of greenhouse gas emissions, but can also lead to a restoration of biodiversity and of ecosystem services. In order to finance measures aimed at achieving natural negative emissions, the European Commission is considering introducing a system of carbon credits as part of the ‘Fit for 55’ program. This contribution investigates the advantages and disadvantages thereof and wonders about the nature and extent of the liability risks if, for example, nature is destroyed that is financed with carbon credits and which results in the release of stored co2. In that respect, attention is given to the Environmental Liability Directive. If the stimulation of natural negative emissions is also aimed at restoring biodiversity, in the event of a loss of nature, merely recouping the market price of a ‘carbon credit’ is insufficient to compensate the public for the damage done.

Energy consumption of hybrid smart water-filled glass (SWFG) building envelope

Thermal properties have significant impact on ecological footprint and life-cycle assessment of buildings. This is even more crucial aspect for glass buildings, which have been criticised as major factors in climate change around the world. Recent debates on glass facades, which culminated in plans for a “glass building ban” in New York City highlighted the importance of innovation in glass construction.The current solutions for mitigating energy consumption for glass facades are improving insulation (U-value) and solar heat gain coefficient (SHGC) with advanced glazing or using shading devices. A fourth approach is the recent technology of water-filled glass (WFG), which utilizes water layer to improve thermal comfort and energy performance of the façade.This paper introduces Smart Water-filled Glass (SWFG) control method, which enables the change of the opacity of the façade element by colouring the fluid over a year regarding seasonal changes. The impact of changing transparency of water layer on cooling and heating energy demand is evaluated by simulating and analysing the energy performance of a reference office room with large glazing facade in different climates.The significance of this energy evaluation is that a water-filled glass with switchable transparency is simulated and assessed here for the first time. The paper analyses the performance in seven cities from all relevant major climatic regions using LBNL WINDOW and TRNSYS (v.18) As a novel approach, the simulation study makes it possible to evaluate the overall performance of two proposed operational methods (insolation-based & storage-based) for adjusting water layer settings depending on climate conditions and reusability of the captured heat in water layer. Moreover, seven different base cases are presented in this study to compare the performance of proposed system, including conventional solutions (e.g. double or triple glazing with/without shading) and a state-of-the-art switchable technology (e.g. electrochromic glazing or EC).The results verify the hypothesis that the impact of SWFG compared to WFG varies depending on the climate with 0%-5.28% for hot climates and 0.25–3.39% for climates with heating demand. The discussion includes comparison with standard glass facades, where SWFG shows 47.41%-78.01% energy savings depending on climate. The climate-based approach of SWFG and WFG offers a significant shift in façade design that sees glass buildings as an opportunity for sustainability rather than liability for climate change.

Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law

Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted to climate-change-related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors’ duties: are directors expected to consider climate-change-related risks in their decision making? If yes, to what extent? The issue has received considerable attention from commentators in relation to common law jurisdictions, but so far it has been less discussed in relation to civil law countries. This article attempts to contribute to filling this gap by presenting a comparative analysis, with a main focus on claims based on corporate and securities law.

Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice afterVedantav.Lungowe

AbstractOn 10 April 2019 the Supreme Court of the United Kingdom delivered judgment in the case ofVedantav.Lungowe, which concerned the liability of an English company for environmental damage caused by its subsidiary in Zambia. The decision confirms that English parent companies can owe a duty of care to foreign claimants affected by operations of their subsidiaries abroad and that the English courts may have jurisdiction to hear such cases, even when a foreign court is a more appropriate place for the trial. It establishes an important precedent for providing access to justice for foreign claimants in transnational corporate liability litigation. Given the global presence of English companies and the fact that their foreign subsidiaries have been involved in multiple cases of environmental damage in the host states, the decision could give an impetus to future claims being brought in the English courts. Also, the decision opens some interesting possibilities for climate change liability litigation against English parent companies and their foreign subsidiaries, as their cumulative greenhouse gas emissions are likely to be considerably higher than when taken separately, arguably making prospective claims against them more viable.

Climate Change Liability – Increasing Risks for Directors? Perspectives From Common and Civil Law Jurisdictions

Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted specifically to climate change related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors' duties: are directors exposed to risks of personal liability in the climate change context, and if so, to which extent? The issue has received considerable attention from common law commentators, but is so far less discussed in civil law countries. This article seeks to help bridge this gap by presenting a comparative analysis with a main focus on corporate law.

Too big to trial? Lessons from the Urgenda case

Is climate change too big to trial? Is tort law adjudication capable of dealing with a huge public interest like climate change? The answer to these questions is dependent on at least three different issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law, (ii) the possible legitimations of tort law liability, and (iii) the public law questions involved (the constitutional position of the court included). Using the Dutch landmark case of Urgenda Foundation v State of the Netherlands, the author researches the issues involved. The conclusion is that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change.

The Civil Judge As Risk Regulator

Taking the Urgenda-case on climate change liability as an example, this article researches the more general question into the legitimacy of risk regulation by civil courts. Which principles determine the legitimacy of a civil court’s participation, especially in the domain of societal risk regulation? The central claim is that these principles concern (amongst many other things) the position of the court, the tools of the court, and the attitude of the court. In other words, they have their source in constitutional law, civil (procedural) law, and professional ethics respectively. This claim is substantiated by an analysis of these principles, their interpretation, and the way they contribute to a normative/theoretical framework for the assessment of the legitimacy of judicial rulings.

The Civil Court as Risk Regulator: The Issue of its Legitimacy

AbstractTaking the Urgenda case on climate change liability as an example, this article researches the more general question into the legitimacy of risk regulation by civil courts. Which principles determine the legitimacy of a civil court’s participation, especially in the domain of societal risk regulation? The central claim is that these principles concern (amongst many other things) the position of the court, the tools of the court, and the attitude of the court. In other words, they have their source in constitutional law, civil (procedural) law, and professional ethics respectively. This claim is substantiated by an analysis of these principles, their interpretation, and the way they contribute to a normative/theoretical framework for the assessment of the legitimacy of judicial rulings.

Too Big to Trial? Lessons from the Urgenda Case

Is climate change too big to trial? Is tort law adjudication capable of dealing with a huge public interest like climate change? The answer to these questions is dependent on at least three different issues, namely (i) the possible interpretations of the relevant rules and concepts of tort law, (ii) the possible legitimations of tort law liability, and (iii) the public law questions involved (the constitutional position of the court included). Using the Dutch landmark case of Urgenda Foundation v State of the Netherlands, the author researches the issues involved. The conclusion is that climate change liability stretches the possibilities of tort law adjudication to the max and even beyond, depending on one’s readiness to adjust it to societal problems like climate change.

Liability for Climate Change: Cases, Challenges and Concepts

AbstractThe authors examine the intricate questions of liability for climate change-related damage. They take a comparative approach and after informing about the developments in the mother country of climate change litigation – the United States of America – turn to an in-depth analysis of liability for tort.

A Duty to Care? Prospects for Climate Change Liability in the English Courts

‘…the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the state must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.’ Hague District Court, June 23rd, 2015. In light of the above landmark ruling - which found the Dutch government owed a duty of care to its citizens over action to mitigate climate change - critically evaluate the chances and possible outcomes of bringing a similar action in the English courts, with particular reference to locus standi under tort, public and international law.

Causes and Impacts of Deficient Liability for Climate Change Damage, and an Economic Conception for Climate Change Liability That Supports Appropriate Action: DRaCULA

To gain an understanding of the issues with environmental liability attribution, both international law and the implicit liability under the UNFCCC are reviewed, and found to be ineffective. This stems from a neoliberal marginalisation of international law and tendency to externalise liability resulting in accountability gaps, which pose major challenges for the climate regime. A socially efficient economic reframing of liability into a Dynamically Relative, and Comparatively Universal Liability Attribution (DRaCULA) framework is proposed. The attribution of liability for climate change damages under DRaCULA is algebraically developed into a conceptual model, the operation of the conceptual model is discussed and together with the framework found to be robust. Through its embodiment of the dynamic challenges inherent in climate change, DRaCULA strategically facilitates the climate negotiations and provides credible solutions to stumbling blocks, including the N-S divide.

Climate Change Liability After All: A Dutch Landmark Case

In spring of 2015, the District Court of The Hague issued an injunction in a class-action suit against the Dutch State to reduce the emission of greenhouse gases (GHG) before 2020 by 25 percent compared to 1990. The case was initiated by the foundation, Urgenda, and 886 individual plaintiffs against the State of the Netherlands. This is the first time a government has been held liable for a climate policy that is substandard according to international norms. Since the ruling is well reasoned—addressing the issues of the standing of Urgenda, the State’s duty of care towards its citizens, the problem of the ‘many hands’, and many other fundamental questions—it deserves close attention. It will most probably become a landmark case with international precedential value.

Applying the Precautionary Principle to Address the “Proof Problem” in Climate Change Litigation

One of the challenges of climate change litigation is the difficulty of linking particular climate change impacts to emissions from a specific source, referred to as the proof problem. The difficulty is mainly caused by scientific uncertainties and gaps in evidence, which has been exploited by defendants seeking to deny that their emissions can be linked to specific impacts. The paper argues that application of precautionary principle, which requires decision-maker to take measures to prevent harm even where there is no conclusive scientific evidence, could be used to respond to the proof problem. It discusses how the principle can be used to hold entities and public authorities liable in climate change litigation. It provides a background of the principle, how it has been applied in litigation and how the application can be extended to climate change liability. It includes a discussion of climate related cases which have applied this principle to provide insights on how courts have applied the principle.

Establishing a Governmental Duty of Care for Climate Change Mitigation: WillUrgendaTurn the Tide?

AbstractLiability for causing or failing to mitigate climate change has long been proposed as an alternative, or backstop, to lagging international cooperation. Thus far, there has been very limited success in holding governments or individuals responsible for the emission of greenhouse gases (GHGs) that are considered the primary cause of anthropogenic climate change. The recent landmark decision inUrgenda Foundationv.Government of the Netherlands (Ministry of Infrastructure and the Environment)breaks with this tradition. In June 2015, the Dutch District Court (The Hague) held that the current climate policies of the government are not sufficiently ambitious for it to fulfil its duty of care towards Dutch society. The judgment, and the accompanying order for the government to adopt stricter GHG reduction policies, raises important questions about the future of climate change liability litigation, the separation of powers between the judiciary and the legislature, and the effect of litigation on international climate change negotiation and cooperation.

A Review of Greenhouse Gas Emission Liabilities as the Value of Renewable Energy for Mitigating Lawsuits for Climate Change Related Damages

Abstract Anthropogenic global climate change has large and mounting negative economic impacts. Companies and nations responsible for greenhouse gas (GHG) emissions are thus acquiring considerable potential liabilities. If litigation becomes widespread, renewable energy technologies (RETs) potentially offer emitters reduced liability for climate change. This benefit has been ignored because of the lack of knowledge of potential liabilities. To overcome this information deficit, this paper reviews recent literature on the potential for climate change litigation and methods to quantify liability for climate change. Next, the top 10 emitters in the U.S. are identified and their potential liability is quantified using standard GHG emission costs. Potential liabilities are explored in depth with a single case study company comparing the results of the fractional liability from only natural disasters within the U.S. for a single year to a sensitivity of the future costs of carbon emissions from other sources of emission-related liability. Then classes of potential climate change litigants are identified and their capacity to bring such lawsuits is evaluated. The results show that the net income available to shareholders of large companies could see a significant reduction from the emissions liability related to only natural disasters in the U.S. from a single coal-fired power plant. Finally, a rough estimate of the economic risk associated with future scenarios and existing organized international potential litigants is quantified. The results show that potential liability for climate change for the Alliance of Small Island States is over $570 trillion. It is concluded that as emitters begin to be held liable for damages resulting from GHG emissions resulting in climate change, a high value for liability mitigation would provide additional powerful incentives for deployment of renewable energy technologies.

Loss & Damage in the UN Climate Regime: A Way to Bridge the Ambition Gap?

This article explores the potential role of loss and damage liability in bridging the ambition gap in the current climate regime and in the negotiations on the post 2020 climate regime. The basic concept explored is the impact an allocation of liability for unmitigated climate change would have on the motivation of individual parties to mitigate and adapt, and to support efforts in other countries.

Climate Change Liability: Transnational Law and Practice. Edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunnee

Climate Change Liability: Transnational Law and Practice. Edited by Richard Lord, Silke Goldberg, Lavanya Rajamani and Jutta Brunnee