By Amar C. Bakshi, CNN website, January 11, 2011
Editor's Note: This is an edited version of an article from the ‘Oxford Analytica Daily Brief’. Oxford Analytica is a global analysis and advisory firm that draws on a worldwide network of experts to advise its clients on their strategy and performance.
A community of about 400 Inuit people living on a narrow, low-lying strip in north-west Alaska has reopened its lawsuit against over 20 of the world's largest oil and gas companies, including ExxonMobil, BP and Shell. Kivalina villagers are seeking damages for property loss, which they say were caused by the companies' contributions to global warming. This case has again raised the potential for climate change liability in private and public law.
Lawyers representing the community have filed an appeal in San Francisco to to reverse a 2009 court decision to dismiss their original suit. Much of the opening legal debate centered on whether a link could be established between greenhouse gas emissions caused by companies anywhere in the world and the impact on one part of the world. The judges asked if an individual driving a car (and thus contributing to emissions) could also be a defendant, and if so, how a court could determine who was liable.
Plaintiffs argued that there was legal precedent that companies, or polluters, did not have to be responsible for all pollution contributing to a problem to be found liable. They just needed to be held responsible for a major part of it, so it was not necessary to trace emission molecules to show which company caused what damage. They also say that the harm emissions created had to be severe, not trivial, to prevent the possibility that anyone could establish a claim against an oil company.
A general legal obstacle for plaintiffs in such cases is establishing causation between man-made global warming and extreme weather events. A defendant can argue that a given event might have happened anyway. However, lawyers specializing in climate change litigation point out that (among other things) there is a difference between progressive 'slow onset' damage caused by sea level rise, and extreme weather events such as storms, droughts or heat waves.
In this context, recent work from climate modellers on working out the probability of global warming making an extreme weather event more likely could help litigants in future. In general, the smaller the scale of weather event being considered, the less predictable the relationship between global greenhouse gas emissions and local temperatures. However, a study of the European heat wave of 2003, which resulted in several thousand heat-related deaths, found that human influence had very likely (i.e. only a 10% chance of being wrong) doubled the probability of European summer temperatures as hot as that year.
The private law liability of companies is distinct from that of states under public international law. The possibility exists that countries vulnerable to climate change impacts like low-lying islands could decide to bring cases against large emitting countries such as the United States. However, one of the many obstacles is that the United States, unlike theUnited Kingdom and Germany, does not accept the jurisdiction of available legal forums such as the International Court of Justice or International Tribunal for the Law of the Sea.
Judges in the Kivalina case could take several weeks to reach a decision, not least because proving direct responsibility for climate impacts, or a causative link between global warming and a weather event is very difficult. It could be as much as another decade before this type of litigation is successful. However, as attribution science develops and large-scale emitters pursue 'business as usual', it will be harder to avoid legal liability.
Isn't it interesting that once again native people are cutting through the political bafflegab on global warming and climate change by initiating a suit against these big oil companies. And, isn't it also interesting that the U.S. continues to hide behind a firewall of disengagement from the jurisdiction of both the International Court of Justice and the International Tribunal for the Law of the Sea. How long can an ostrich survive with its head in the sand anyway?
While it may be a decade before this type of litigation is successful, at least there are first attempts at the process, establishing many of the definitions, precedents and processes for what could become a legal tsunami of cases, similar to those currently being successfully prosecuted against the tobacco companies for their complicity in creating, generating and promoting human cancers, through their carcinogenic products.
And for how long with the rest of the world accept the United States' position of isolationism from the world's legal proceedings and judgements?
Not only are the corporations, under the well-established umbrella of impunity of the virulently capitalistic, free-market society of the gun-boat diplomats, protected, but the U.S. itself deceives itself by thinking the world is not noticing its outlier status among the community of nations. This case brings up so many unresolved issues, not the least of which is corporate liability for global warming and climate change.
And once again, the rest of the world has the native people to thank for their vision, their courage and their perspective on time, viewed as a long-term concept, as compared to the anal and dysfunctional perspective of Wall Street and much of the corporate world, in their compulsive attempt at complete control.