Abstract
This chapter aims at shedding a light on the pivotal role played by climate science within the ramping climate justice debate. By examining three different cases held at different latitudes, it wishes to explain how climate science has been successfully employed in climate litigation to establish State’s responsibility for more ambitious policies; to determine bans on carbon-intensive infrastructures; to establish patterns of liability for climate-related damages. In this regard, this contribution champions climate science as a fundamental stepping-stone towards judicial law-making amidst the climate crisis.
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Notes
- 1.
Relevant, specifying the level of ‘pre-industrial emissions’ aims to provide a baseline from which anthropogenic activity began influencing greenhouse gas (GHG) concentrations in the atmosphere. How the ‘pre-industrial level’ is interpreted, however, can vary. To date, 1850–1900 has been the preferred baseline by institutions including the IPCC. However, some studies have suggested a 1720–1800 baseline would be more appropriate because GHG concentrations have been increasing since industrialisation began around 1750. Others argue that baselines should be taken from natural climate model simulations, i.e. those that exclude anthropogenic forces.
- 2.
It is also worth noting that carbon budget calculations differ in terms of scope and range. For example, IEA’s carbon budget refers to budgets for the energy sector only—the largest single source of CO2 emissions through the burning of coal, oil and gas. In contrast, the IPCC’s budgets account for all anthropogenic sources of CO2, thus including, inter alia, budgets for heavy industries and land use, land use change and forestry (LULUCF).
- 3.
In sum, the calculations draw from companies or entities net fossil fuel production data from publicly available sources, as factored with each fuel’s carbon content, deduction for non-energy uses of produced fuels, and emission factors for each fuel, for each entity, and for every year for which production data have been found.
- 4.
Urgenda Foundation v. The Netherlands [2015] HAZA C/09/00456689 (June 24, 2015).
- 5.
Notably, this GHG reduction target is more ambitious than those agreed at the EU level, as disaggregated among Member States—including The Netherlands, which indeed amounts to 16% by 2020.
- 6.
In particular, where determining the scope of the duty of care of the State, the court has taken account of:
-
(i)
the nature and extent of the damage ensuing from climate change;
-
(ii)
the knowledge and foreseeability of this damage;
-
(iii)
the chance that hazardous climate change will occur;
-
(iv)
the nature of the acts (or omissions) of the State;
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(v)
the onerousness of taking precautionary measures;
-
(vi)
the discretion of the State to execute its public duties, with due regard to the latest scientific science, the available (technical) options to address necessary security measures to, and the cost-benefit ratio of the same security measures.
-
(i)
- 7.
Urgenda Foundation v. The Netherlands [2018] HAZA C/09/456689 (October 9, 2018).
- 8.
For example, in the discussion of the risk of reaching “tipping points” with a temperature rise of between 1 and 2 °C, the court cited the IPCC AR5 Working Groups I, II and III Synthesis Reports (para. 44).
- 9.
Gloucester Resources Limited v. Minister for Planning [2019] NSWLEC 7.
- 10.
GG’s arguments fundamentally relied on the expert testimony of Emeritus Professor Will Steffen, an Earth System scientist at the Australian National University, Senior Fellow of the Stockholm Resilience Centre and Member of the Climate Council of Australia. Steffen’s testimony drew on both global and Australian publications, including reports from the Intergovernmental Panel on Climate Change, the Australian Bureau of Meteorology and the Commonwealth Scientific and Industrial Research Organisation (CSIRO), Australia’s premier scientific research organisation.
- 11.
The global 2011–2050 carbon budget estimation as presented in Court equalled 300 Gt C. The presented study also showed that about 780 Gt C would be emitted as CO2 were all of the world’s existing fossil fuel reserves burned—about 2.5 times greater than the allowable budget. Importantly, GG inferred from this data that to achieve the Paris Agreement targets implies not only currently operating mines and gas wells to be closed before their economic lifetime, but also that no approved and proposed fossil fuel projects, based on existing reserves, shall be implemented.
- 12.
Relevant, CJ Preston extensively relies on the doctrine in Urgenda v. The Netherlands District Court’s decision to reject this argument (paras. 521–524).
- 13.
Furthermore, CJ Preston noted that a particular fossil fuel development may itself be a sufficiently large source of GHG emissions such that refusal of the development “could be seen to make a meaningful contribution to remaining within the carbon budget and achieving the long term temperature goal” (para. 554).
- 14.
In particular, the claimant refers to the Inventario de Glaciares del Perú, Ministerio de Agricultura y Riego Autoridad Nacional del Agua, Unidad de Glaciología y Recursos Hídricos, Huaraz, July 2014, p. 23, point 7.1.3.1, according to which “Comparing the glacier surface area measured in the national inventory of the decade of the 1970s and the results of the current inventory, the Cordillera Blanca has lost approximately 27% (195,75 km2) of its total glacier area.”
- 15.
District Court Essen, Case No. 2 O 285/15 (December 16, 2016).
- 16.
Regional Court of Hamm, Case No. 2 O 285/15 (November 30, 2017).
- 17.
As no agreement could be reached between the parties as to the nominee joint experts, the Court appointed its own experts on September 2018, who will inspect the premises in Peru subject to the lawsuit. In particular, the claimants contended that the RWE’s suggested experts views were largely not based on IPCC findings.
- 18.
The relevance of the precautionary principle in climate change law is beyond debate (De Sadeleer 2016). The UNFCCC requires States to promote scientific research and requires the COP to periodically examine, inter alia, the scientific and technological knowledge. The Paris Agreement requires Parties to undertake rapid reductions in accordance with best available science (Hanekamp and Bergkamp 2016). The Treaty on the Functioning of the EU requires the EU to take the available scientific data into account when preparing environmental policy (art. 191).
References
Allen M (2011) The scientific basis for climate change liability. In: Lord R et al (eds) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge, pp 8–22
Butt D (2017) Historical emissions: does ignorance matter? In: Meyer LH, Sanklecha P (eds) Climate justice and historical emissions. Cambridge University Press, Cambridge, pp 61–79
Carbon Tracker Initiative (2018) Mind the gap: the 1.6 trillion energy transition risk
Collins M et al (2013) Long-term climate change: projections, commitments and irreversibility. In: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, pp 1029–1136
De Sadeleer N (2016) The precautionary principle and climate change. In: Farber D, Peeters M (eds) Climate change law. Edward Elgar, Cheltenham, pp 21–31
Duffy M (2009) Climate change causation: harmonizing tort law and scientific probability. Temple J Sci Technol Environ Law 28(2):185–240
French D, Pontin B (2016) The science of climate change: a legal perspective on the IPCC. In: Farber D, Peeters M (eds) Climate change law. Edward Elgar, Cheltenham, pp 9–20
Ghaleigh NS (2016) Science and climate change law – the role of IPCC in international decision making. In: Carlarne CP, Gray KR, Tarasofsky R (eds) The Oxford handbook of international climate change law. Oxford University Press, New York, pp 56–71
Hanekamp JC, Bergkamp L (2016) The “Best Available Science” and the Paris agreement on climate change. Eur J Risk Regul 7(1):42–48
Heede R (2013) Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Clim Change 122(1–2):229–241
Heede R et al (2014) Carbon Majors: Accounting for carbon and methane emissions 1854–2010 – Methods and Results Report
Hoegh-Guldberg O et al (2018) Impacts of 1.5°C global warming on natural and human systems. In: IPCC global warming of 1.5°C. World Meteorological Organization, Geneva
Hughes L (2019) The Rocky Hill decision: a watershed for climate change action? J Energy Nat Resour Law 37(3):341–351
Kahl W, Daebel MC (2019) Climate change litigation in Germany: an overview of politics, legislation and especially jurisdiction regarding climate protection and climate damages. Eur Energy Environ Law Rev 28(2):67–76
Koch HJ, Lührs M, Verheyen R (2011) Germany. In: Lord R et al (eds) Climate change liability: transnational law and practice. Cambridge University Press, Cambridge, pp 376–416
Le Queré C et al (2018) Global carbon budget 2018. Earth Syst Sci Data 10:2141–2194. https://doi.org/10.5194/essd-10-2141-2018
Markell D, Ruhl JB (2012) An empirical assessment of climate change in the courts: a new jurisprudence or business as usual? Florida Law Rev 64(1):17–86
Mastrandrea M, Schneider SH (2014) Climate change science overview. In Schneider SH et al (eds) Climate change science and policy. Island Press, pp 14–27
McAllister LK (2008) Litigating climate change at the coal mine. In: Burns W, Osofsky HM (eds) Adjudicating climate change: sub-national, national, and supra-national approaches. Cambridge University Press, Cambridge, pp 48–71
McGlade C, Ekins P (2015) The geographical distribution of fossil fuels unused when limiting global warming to 2°C. Nature 517:187–190
McKormick S et al (2018) Strategies in and outcomes of climate change litigation in the United States. Nat Clim Change 8:829–833
Nachmany M, Setzer J (2018) Global trends in climate change legislation and litigation: 2018 snapshot, Grantham Research Institute Policy brief – May 2018.
Peel J, Osofsky HM (2015) Climate change litigation: regulatory pathways to cleaner energy. Cambridge University Press, Cambridge
Peel J, Osofsky HM (2018) A rights turn in climate change litigation? Transnl Environ Law 7(1):37–67
Rogelj J et al (2018) Mitigation pathways compatible with 1.5°C in the context of sustainable development. In: IPCC global warming of 1.5°C. World Meteorological Organization, Geneva
Setzer J, Vanhala L (2019) Climate change litigation: a review of research on courts and litigants in climate governance. WIREs Clim Change 10:1–19
UNEP (2017) The status of climate change litigation – a global review
UNEP (2018) The Emissions Gap Report 2018. United Nations Environment Programme, Nairobi
Victor DG et al (2014) Introductory chapter. In: Climate change 2014: mitigation of climate change. In: Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA
Wegener BW (2019) Urgenda – world rescue by court order? The “Climate justice” movement tests the limit of legal protection. J Eur Environ Plann Law 16(2):125–147
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Fermeglia, M. (2020). Climate Science Before the Courts: Turning the Tide in Climate Change Litigation. In: Westra, L., Bosselmann, K., Fermeglia, M. (eds) Ecological Integrity in Science and Law. Springer, Cham. https://doi.org/10.1007/978-3-030-46259-8_3
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