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Adaptation



24/01/2018

Suing Oil Companies for Climate Change Adaptation Costs

By Jonathan Verschuuren (TLS)

In the Netherlands, no cases have been lodged against emitters of GHGs yet. This is somewhat surprising, given that one of the world’s leading oil companies, Royal Dutch Shell (RDS), has its headquarters in the Netherlands and given the fact that around 60% of Dutch land is prone to flooding, either by rivers or by the sea. An extensive regulatory and administrative system is in place to plan for and execute measures to protect the land against sea level rise and increased water run-off in rivers under climate change.[1] It is estimated that the Dutch government needs to spend 26 billion euros for coastal and river adaptation measures alone.[2]

(Photo: Flickr user Shell)

(Photo: Flickr user Shell)

Dutch tort law would allow tort cases against polluters to be lodged, as long as complainants can show that they suffer damage caused, at least to some extent, by this and other GHG emitters. Between 1988 and 2015, Shell ranked as the 9th biggest emitter or GHGs, being responsible for 1.7% of all global GHG emissions.[3] There is some experience with tort cases against RDS in the Netherlands for its actions abroad. In 2013, several cases were lodged before the District Court of The Hague both against RDS and its Nigerian subsidiary for causing extensive damage by oil spills in Nigeria. These cases were lodged by individual Nigerian farmers and a Dutch environmental NGO, and were successful, be it only against the Nigerian subsidiary, not against the parent company.[4] The court determined that the Nigerian subsidiary of RDS violated a duty of care and was liable for negligence for not having taken measures to prevent sabotage to its wells, which caused the spills. The court ordered the subsidiary to pay damages to the Nigerian farmers.[5] Given their high public profile as one the biggest Dutch multinational corporations and given this successful case in the past, it is not unlikely that climate change related cases will emerge sooner rather than later.

The flood of cases against RDS and several other major oil companies in the United States may well be the trigger for such future cases in other countries, including the Netherlands. In 2017, seven Californian municipal and country governments filed cases against RDS and others (“big oil”), in an attempt to claim damages from sea level rise, altered water cycles, increased wild fires etc.[6] In January 2018, New York City filed another lawsuit in a federal court, again against RDS as well as BP, Chevron, ConocoPhillips and Exxon Mobil, to recover adaptation costs to protect the city against sea level rise and increased storm intensity.[7]

The complaint in the latter case is a very interesting document that in very strong and persuasive words argues that these companies’ actions constitute an unlawful public and private nuisance and an illegal trespass upon New York City property because they produced, marketed, and sold fossil fuels ‘for decades and at ever more dangerous levels while knowing of the harm that was substantially certain’ and that lead to ‘damage from climate change, including inundation, erosion, and regular tidal flooding’ of the city’s property and to ‘imminent threats to its property, its infrastructure, and the health and safety of its residents’.

As stated above, the case is entirely focused on adaptation costs. The complaint refers to a number of actions already taken on which billions of dollars have been spent:

-        Protect vulnerable residents during increasingly severe heat waves (which already kill more New Yorkers each year than all other natural disasters combined)

-        Reinforce NYC coastline and elevate its infrastructure within the floodplain.

In addition, it looks ahead to future adaptation measures that need to be taken:

‘the City must build sea walls, levees, dunes, and other coastal armament, and elevate and harden a vast array of City-owned structures, properties, and parks along its coastline (…) [such as] enlarge existing storm and wastewater storage facilities and install additional facilities and associated pumping facilities and infrastructure to prevent flooding in low-lying areas that are vulnerable to rising seas and increasingly severe downpours.’ According to the complaint, ‘these are long-term design and construction projects that must be built to last for decades, often up to fifty years or more. The City must take these actions as soon as possible in order to protect public health and safety and City property and infrastructure. The costs of these largely unfunded projects run to many billions of dollars and far exceed the City’s resources.’

What is particularly interesting in this case, is the emphasis that is placed on the special position that these big oil companies have, not just because of their large share in global fossil fuel production, but also because of their role in misinforming the public. The complaint devotes several pages of text to the campaign orchestrated by the oil companies to cast doubt on climate science and gives detailed examples of covert attempts to mislead the public. The complaint concludes:

‘Defendants are not only quantitatively different from other contributors to climate change given their massive and dangerous levels of fossil fuel production over many years—they are also qualitatively different from other contributors to climate change because of their in-house scientific resources, early knowledge of climate change impacts, commercial promotions of fossil fuels as beneficial despite their knowledge to the contrary, efforts to protect their fossil fuel market by downplaying the risks of climate change, and leadership roles in the API and other organizations that undertook a communications strategy for the fossil fuel industry. In this coordinated effort to discredit the science, which began in earnest during the 1990s and has continued in a subtler form even in recent years, Defendants and their agents and advocates have made the alleged “uncertainty” of climate science their constantly-repeated mantra. The purpose of this campaign of deception and denial was to increase sales and protect market share.’

In my view, these cases against ‘big oil’ in the US may very well pave the way for a global flood of litigation against oil companies. The recent adoption of the Principles on Climate Obligations of Enterprises by a group of former judges and law professors from around the world will help push this movement.[8]

Another interesting recent development is the growing pressure on investment banks and pension funds to divest in fossil fuel related projects.

In the Netherlands, in 2017 a first step towards challenging investment portfolios of banks and pension funds in case of climate unfriendly investment was taken by the submission of a complaint under the OECD Guidelines for Multinational Enterprises. Several environmental and development NGOs submitted a complaint against the Dutch multinational ING Bank, which is heavily involved in funding fossil industries, including funding new coal fired power plants in developing countries. According to the NGOs, ING is violating several provisions of the OECD guidelines, such as the duty to adopt ‘measurable objectives’ and ‘targets for improved environmental performance’ and to disclose greenhouse gas emissions, both ‘direct and indirect, current and future, corporate and product emissions.’[9] The NGOs request ING to start reporting on its indirect greenhouse gas emissions and to establish and pursue goals which will bring the bank’s indirect greenhouse gas emissions in line with the goals of the Paris Agreement. In November 2017, the National Contact Point of the Netherlands declared the complaint admissible. This seems to be the first time a climate change related complaint is found to be admissible by any National Contact Point for the OECD Guidelines.[10] Although this is not a procedure before a court of law, this case may provide a precedent for future cases before domestic civil courts.

 

[1] Jonathan Verschuuren, Jan McDonald, ‘Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia’ (2012) 1:2 Transnational Environmental Law 355-379.

[2] https://deltaprogramma2016.deltacommissaris.nl/viewer/paragraph/1/deltaprogramma-/chapter/het-deltafonds-financieel-fundament-onder-het-deltaprogramma/paragraph/de-financiele-opgaven-van-het-deltaprogramma

[3] Paul Griffin, The Carbon Majors Database. CDP Carbon Majors Report 2017 (CDP 2017), 14.

[4] On January 30, 2013, the District Court of The Hague rendered separate judgments in five cases brought by four Nigerian farmers and fishermen, supported by the Dutch branch of Friends of the Earth (Milieudefensie), against the Nigerian subsidiary of Shell and its former and current parent companies in the United Kingdom and the Netherlands. The most important judgement is Akpan v. Royal Dutch Shell PLC, Arrondissementsrechtbank Den Haag [District Court of The Hague], Jan. 30, 2013, Case No. C/09/337050/HA ZA 09-1580 (ECLI:NL:RBDHA:2013:BY9854). An (unofficial) English translation of this and the other four judgments is available from Milieudefensie’s website.

[5] See in more detail, Nicola Jägers, Katinka Jesse, Jonathan Verschuuren, The Future of Corporate Liability for Extraterritorial Human Rights Abuses: The Dutch Case against Shell, (2014) American Journal of International Law Unbound “Agora: Reflections on Kiobel”, e-36/e-41.

[6] Michael Burger, Local Governments in California File Common Law Claims Against Largest Fossil Fuel Companies, blogpost Sabin Center for Climate Law, 18 July 2017, http://blogs.law.columbia.edu/climatechange/2017/07/18/local-governments-in-california-file-common-law-claims-against-largest-fossil-fuel-companies/, and Jessica Wentz, Santa Cruz Joins Other Municipalities Suing Fossil Fuel Companies for Damages Caused by Climate Change, blogpost Sabin Center for Climate Law, 8 January 2018, http://blogs.law.columbia.edu/climatechange/2018/01/08/santa-cruz-joins-other-municipalities-suing-fossil-fuel-companies-for-damages-caused-by-climate-change/.

[7] Nicholas Kusnetz, New York City Sues Oil Companies Over Climate Change, Says It Plans to Divest, Inside Climate News 11 January 2018, https://insideclimatenews.org/news/10012018/new-york-city-divest-sued-big-oil-climate-change-costs-exxon-chevron-bp-shell-mayor-deblasio . The full text of the complaint is available through this blogpost.

[8] Expert Group on Global Climate Change, Principles on Climate Obligations of Enterprises (Eleven International Publishing 2017).

[9] The full text of the complaint (in English) is available online through https://www.oxfamnovib.nl/persberichten/klacht-tegen-ing-vanwege-schending-oeso-richtlijnen.

[10] According to one of the NGOs involved, see: https://www.oxfamnovib.nl/nieuws/klimaat-klacht-tegen-ing-in-behandeling-genomen.

 

 

 

 

 

Category: Adaptation, Climate

07/08/2013

Research Handbook on Climate Change Adaptation Law

By Jonathan Verschuuren (TLS)
book-cover

This is the cover of the Research Handbook on Climate Change Adaptation Law, that was just published by Edward Elgar Publishers. So far, legal research has mostly focused on mitigation. Some adaptation topics are well covered through individual papers and law journal articles. This is especially true for adaptation in the fields of water management and biodiversity conservation, coastal adaptation, and climate induced displacement. Other topics are not, or hardly, covered, if so only in scattered papers. With this book I want to provide a full overview of current adaptation law scholarship on all topics, in all relevant sectors. To date there is one other book that also addresses the whole emerging field of adaptation law: ‘The Law of Adaptation to Climate Change: United States and International Aspects’, edited by Michael Gerrard and Katrina Fischer Kuh, published by the American Bar Association. As the title indicates, this book as a primary focus on the US. My book takes a transnational perspective, i.e., an approach which is detached from a specific domestic legal system, but instead focuses on generic issues, using examples from across the world. In the introduction, adaptation and its various forms are explained, as well as the relationship between adaptation and mitigation, and the main questions that are addressed in the book: What are the legal challenges and barriers to climate change adaptation and how can they be overcome? What can be done within existing legal frameworks, and where are new or adapted frameworks needed? The second chapter gives an overview of the role of adaptation in current international and regional climate law and policy. The third chapter, by Rosemary Lyster (University of Sydney), can also be seen as an introductory chapter as it deals with justice issues. Then, we the book dives into a series of more specific topics: climate change induced displacement (Mariya Gromilova & Nicola Jägers, Tilburg Law School), adaptation and compensation (Michael Faure, Maastricht University), adaptation and disaster law (Dewald van Niekerk, North West University), adaptation and public health law (Lindsay F. Wiley, Washington College of Law), adaptation and agricultural and forestry law (Robert W. Adler, University of Utah), adaptation and water law (by me), adaptation and marine and coastal law (Tim Stephens, University of Sydney), adaptation and biodiversity law (Arie Trouwborst, Tilburg Law School), adaptation and land use planning law (Keith H. Hirokawa, Albany Law School, and Jonathan Rosenbloom, Drake Law School), adaptation and green building (Keith H. Hirokawa and Aurelia Marina Pohrib, Albany Law School), adaptation and environmental and pollution control law (me again), adaptation and electricity infrastructure (Rosemary Lyster and Rebekah Byrne, University of Sydney). The contributions to this book show that, although adaptation receives a growing amount of attention, both in practice and in academia, adaptation law is only just starting to emerge. In most instances, there are some plans or policies aimed at adaptation in various fields, usually those fields that already have to deal with increasing problems, such as storm water management and flood management. An adaptation of the laws still has to start. It is obvious that existing laws have to be assessed on their ability to facilitate adaptation. This is a huge undertaking because there is hardly any field that is not affected by climate change. All laws and regulations that in any possible way organize society have to be ‘climate proofed’, laws regarding agriculture, forestry, fisheries, energy and telecommunications infrastructure, water management, air quality, industrial installations, nature conservation, buildings, transport infrastructure, public health, migration, disaster management, coastal defenses, etc. Although research on adaptation law, so far, has mainly concentrated on specific sectors, some overarching conclusions can be drawn: every field faces specific climate change impacts and needs specific adaptations, adaptations that also need to vary according to local circumstances. In various chapters, examples are presented of how existing laws are effectively applied to create resilience or to otherwise prepare for extreme weather events or other climate change impacts. Often, though, existing legislation needs to be adapted so that the competent authorities are obliged to plan for and take adaptation measures. The EU, for example, has just embarked on an ambitious programme to climate proof all existing Directives and Regulations. In 2013, the first climate proofed piece of EU legislation is expected to be adopted (a revised Directive on environmental impact assessment). It will probably take at least ten years before the entire body of EU law has been climate proofed. Similar programmes will have to be set up on all levels of government: international, regional, national/federal, provincial/regional and local. Since many impacts of climate change will be local impacts, and since these impacts can greatly vary from one location to another, it is important that at the local level the authorities take the lead in local adaptation programmes. At that level, planning law probably is the most important instrument in the authorities’ adaptation toolkit. Higher levels of government have to ensure that the authorities at the local level have sufficient room for manoeuvre. For adaptation issues at the higher levels, i.e., at the level of transboundary river basins, national or transboundary coastal areas, international marine areas, regional or international migration and others, international institutions will have to take the lead and coordinate international adaptation efforts. At all levels, issues of equity and justice arise and need to be incorporated into the law-making process. And yes… this blog will become more active as of now!!!


02/06/2011

Coastal adaptation

By Jonathan Verschuuren (TLS)

Around the world, coastal defenses are an integral part of climate policy. The risk of flooding is increasing due to a number of factors – the rising sea level (which in the Netherlands is being exacerbated by subsidence), the increasing intensity of storms and rising water levels in rivers. The Dutch parliament is currently looking at proposals for a new Delta Law, which is designed to address these increasing dangers. This law, as well as the legislation that already exists, is among the most advanced in the world. But of course, that is because half of our country is susceptible to flooding, either from the sea or from rivers.

Unlike in the Netherlands, most of the coastal areas around the cities of southern and eastern Australia are in the hands of private landowners. These ‘ocean view properties’ are spectacular, and extremely expensive. That makes it difficult for the government to build coastal defenses. Many interesting legal cases are already underway in this area which will clarify how this aspect of climate law will be put into force in the future. Essentially, the law states that the authorities must create a coastal protection area where they can make provisions for the effects of climate change. This policy will determine whether projects in coastal areas are allowed to go ahead. But what should be done in cases where houses are under threat from the sea?

One of the most famous cases is that of a rich landowner in Byron Bay to the south of Brisbane. The government had decided not to defend a section of the coastal area against the increased risk of erosion, but rather to let nature take its course as a part of a wider plan that involved protecting other, more important areas. The owner of the land decided to take measures to protect the land from erosion himself by renewing the old coastal defenses. The government denied him permission to do this, for the same reason as it had decided not to do so itself. When it looked as if the dispute would be settled in favor of the landowner, the government decided to renew the coastal defenses after all. However, it is clear that this is only a temporary measure until the next storm comes along. There is no prospect of a definitive solution, not least because land owners are opposing the construction of new coastal defenses for the future. After all, this would mean their land would no longer be located directly on the coast, and so it would be worth considerably less…

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