Climate

How International Lawsuits Could Punish Carbon Emitters Even If Governments Don’t

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Courtrooms could be the next battlefield in the fight against climate change, according to a new report out of Canada.

The paper, put out Thursday by the Canadian Centre for Policy Alternatives and West Coast Environmental Law, argues that climate science has advanced enough that current and future damages from climate change could start being divvied up amongst various polluters and companies in fossil fuels. When combined with the workings of international litigation, it opens up the possibility of legal liability for those entities — and not just in their home countries, but in any country where damages from climate change are felt.

In short, the scientific and legal groundwork is in place to start suing carbon emitters, and quite possibly suing them for a lot. Someone just has to try.

“What we’re doing as environmental lawyers is simply saying to companies and investors, you might not have considered the possibility of foreign judgments and what that might mean,” Michael Byers, the report’s co-author and professor of international law at the University of British Columbia, told Canada’s CBC News.

“It’s very clear scientifically there is a cause of climate change and there is damage,” Byers elaborated. “Once you have those two elements and you have two separate parties, you have the basis for a civil action.”

While the report’s theory has global implications, Byers and his co-authors chose to focus on a handful of Canadian companies as concrete examples: EnCana, Suncor, Canadian Natural Resources, Talisman and Husky. They drew on previous research that estimates the costs of climate change so far and attempts to trace contributions to greenhouse gas emissions back to individual companies. From there, they were able to roughly calculate those five companies’ share of the liability for damage already done by climate change (estimated at around $591 billion total), and for increasing future damage.

climate-liability-chart

CREDIT: Canadian Centre for Policy Alternatives / West Coast Environmental Law

The researchers were also able to apply this same methodology to figure out the companies’ potential liability for damages in developing countries. In India, for example, it ranged between $37.8 million and $90.8 million per company in 2010, and rose to between $297.9 million and $714.9 million in 2030.

The report also looked at the laws and constitutions in various countries, and noted the nations where a lawsuit against companies for contributing to climate change could most likely go forward. While the way the court systems of various countries interact is complicated, courts in one country can and sometimes do enforce damages found by courts in other countries, depending on the relevant law and jurisprudence. And because climate change is a global problem, that opens up the possibility that claims could be brought in countries where the damage from climate change occurs, even if the companies being sued did their emitting in another country.

climate-liability-map

CREDIT: Canadian Centre for Policy Alternatives / West Coast Environmental Law

“The standard rule is that if there is a debt, that is enforceable in another country provided that the enforcing court finds that there is legal compatibility between the two legal systems,” Byers explained.

Within the United States, several lawsuits seeking compensation for damages from climate change are already in the works, according to the report, and courts have signaled an openness to the possibility. But they’ve also signaled a preference for the issue to be handled by the other two branches of government, and so far no climate damages case has yet been argued in the U.S. on the merits.

The report also points to previous precedents — involving pollution, negative side effects from prescription drugs, and faulty consumer products — where individual companies could not escape liability just because no single company alone caused the problem, and lays out how the logic of those cases could also be used to tease out the liability for climate change.

As CBC News noted, this latest report is only one in a number of research efforts that have laid out how international lawsuits could be used to recoup the costs of climate change from the companies whose actions contribute to it. “That gives us some assurance that we’re onto something,” Byers continued. “It’s one of many reports in many different countries which collectively indicate that this is an issue that should be of concern.”