Climate

Why These Tiny Island Nations Are Planning To Sue Fossil Fuel Companies

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A father and son stand among the remains of their destroyed home in Port Vila, Vanuatu in the aftermath of Cyclone Pam Monday, March 16, 2015.

On Monday, the seven of the world’s wealthiest nations met in southern Germany and pledged to decarbonize the world’s energy systems by 2100, while limiting global warming to 2°C.

Later that evening, in the South Pacific, representatives from six decidedly smaller countries also took a stand against climate change. Under the People’s Declaration for Climate Justice, citizens from the nations of Vanuatu, Kiribati, Tuvalu, Fiji, the Solomon Islands, and the Philippines announced their intent to bring legal action against fossil fuel companies for their role in contributing to climate change.

“As the people most acutely vulnerable to the impacts of climate change, we will not let the big polluters decide and assign our fate,” the declaration reads. “We refuse to accept the ‘new normal’ and demand for climate justice by holding the big polluters and their respective governments to account for their contribution to the climate crisis.”

In conjunction with the declaration, Greenpeace Southeast Asia is planning to submit a petition to the Philippines Commission on Human Rights, requesting that the commission open an investigation into the role of major polluters in human rights violations from climate change.

“The power of this declaration is that it represents what I think is a growing movement of people who are no longer patiently waiting for governments to address the challenges of climate change, and who are actually saying, ‘We are going to use the legal mechanism available to us in our courts, in your courts, and human rights bodies to hold you, the polluters, accountable for the human rights violations we are suffering,'” Carroll Muffett, president and CEO of the Center for International Environmental Law, told ThinkProgress.

In late March, Cyclone Pam ripped through the tiny island nation of Vanuatu, killing 24, displacing 3,300, and destroying 90 percent of the island’s infrastructure. A week later, three more tropical storms had circled through the South Pacific, pounding the region’s island nations with wind and rain.

The South Pacific is no stranger to extreme weather, but islands in the region have seen a marked uptick in the frequency of the most intense storms — from 1975 to 1989, and 1990 to 2004, the occurrence of Category 4 and 5 storms more than doubled in the Pacific region, according to the World Bank. And climate change is expected to continue that trend, with scientists warning of the potential for stronger and more frequent storms in the coming years.

Violent storms aren’t the only impact of climate change that the low-lying island nations of the South Pacific will have to contend with. There’s also rising sea levels, which threaten to overrun the islands, and ocean acidification, which threatens to severely impact marine life on which the island’s depend.

The declaration doesn’t directly translate into legal action — and the island nations could face several hurdles before their complaints are even heard in a court, according to David Hunter, director of the Program on International and Comparative Environmental Law at American University’s Washington College of Law.

“If you are citizens in Fiji and you want to sue Chevron, you’re going to have jurisdictional questions,” Hunter told ThinkProgress, noting that the nations could also run up against issues if they try to bring a case in the United States because of preemption from federal laws like the Clean Air Act. But, Hunter said, the nations have logic on their side.

“Generally speaking, if we look at this in the simplest form, they are people that are suffering from actions that companies and others have been involved in,” he said. “If we think about the legal system as trying to remedy an injustice or an injury, then you have injury and can probably demonstrate causation from the burning of fossil fuels to ocean acidification or sea level rise.”

Proving causation used to be a major hurdle for plaintiffs hoping to hold polluters accountable for climate change, but both Hunter and Muffett said that improved science is getting increasingly better at linking specific harm to specific actors.

In late March, a farmer in Peru filed a complaint with the German energy company RWE, demanding that the company pay for the cost of protective measures he’s been forced to install on his home. His home lies in the floodpath of the Palcacocha lake, which is threatening to overflow as the glaciers that feed it continue to melt due to climate change.

“This was not someone saying, ‘I’m generally concerned about the impacts of climate change on my country,'” Muffett said. “This was someone that could point to scientific data produced by his own government saying the water behind this specific dam is rising because of climate change.”

Another defense that defendants in climate litigation cases can use is the principle that carbon pollution is a global problem. The argument largely goes that if everyone is causing the problem, then no single actor can be held responsible. But research published in 2013 in the journal Climatic Change is making that defense more difficult for fossil fuel companies.

In that study, researcher Richard Heede, from the Climate Accountability Institute, tried to divvy up responsibility for man-made global warming emissions. What Heede found was that although there are thousands of oil and gas companies throughout the world, the majority of emissions can be traced back to a handful of participants — roughly two-thirds of industrial emissions come from just 90 entities, 50 of which were investor-owned companies.

“Courts may not be able to deal with 6 billion defendants, or 1 billion, but courts are very comfortable with 50,” Muffett said, noting that the concept of joint and several liability was, in essence, created to deal with cases where several defendants contributed to harming the plaintiff.

The South Pacific nations are just the latest in a slew of plaintiffs hoping to use litigation to spur action on climate change. In April, some 900 Dutch citizens filed a lawsuit against their government for failing to effectively curb climate change. There is a similar movement underway in Belgium, where a lawsuit against the government is in its early stages. And throughout the United States, Our Children’s Trust — an Oregon-based nonprofit — has launched several youth-led lawsuits against various state and federal entities for failing to stop climate change.

To Muffett, this growing suite of lawsuits signals a turning point in the fight against polluters.

“If you think about tobacco litigation, one case after another lost and lost and lost until the nature of the plaintiffs started changing and started growing, and suddenly the tobacco companies started losing,” Muffett said. “I think that’s the stage we’re at with climate change.”