Generation game warms legal climate

There are times when writing articles about climate change brings a distinct feeling of deja vu.
There was a time five or six years ago when litigation over climate impacts featured regularly on this website.

Scientists were working up methods of attribution - methods that would allow you to say, for example, "60% of the risk of that particular impact happening was due to climate change" - and allow plaintiffs to sue on that basis.

So we saw an Inuit group filing a legal petition to the Inter-American Commission on Human Rights, on the basis that US emissions were melting away their way of life.

We saw legal cases brought against Shell over gas-flaring in Nigeria - thought to be Africa's biggest point source of greenhouse gases, and a waste of valuable fuel that could be used to improve lives locally.

We saw legal petitions go into the World Heritage Committee on the basis that climate change was melting Himalayan glaciers, putting lives at risk through increasing the chances of glacial lake outburst floods - and curbing emissions was the only way to protect these sites, as government are legally obliged to do.

US organisations argued that protecting some endangered species, such as corals, must mean curbing climate change, and lodged actions accordingly under the Endangered Species Act.

More directly, actions were brought against power companies and the state authorities that license them, notably in the US and Australia.

There was even talk of nation suing nation, with The Maldives at one point leading the charge of small island developing states to wring compensation from the high-emitting West.

In Europe, there was talk in legal circles about a suit based on additional deaths caused by the heatwave of 2003, although nothing came to court.

And so it's been intriguing this week to see the idea raising its head in a somewhat novel way, with a group of young people lodging a number of legal cases across the US, possibly amounting eventually to one in every state.

Among the leading lights is Alec Loorz, the 16-year-old founder of Kids vs Global Warming, who says he is suing the US...

"...for handing over our future to unjust fossil fuel industries, and ignoring the right of our children to inherit the planet that has sustained all of civilization.

"Even though scientists overwhelmingly agree that CO2 emissions are totally messing up the balance of our atmosphere, our leaders continue to turn their backs on this crisis.

"The time has come for the youngest generation to hold our leaders accountable for their actions."

The concept of "inter-generational equity" is something that campaigners have urged for some years without necessarily managing to turn into a major support winner.

It's not just a climate issue, they say.
Every barrel of oil used unnecessarily now is one barrel fewer remaining for the next generation.

As far as I'm aware, the Kids vs Global Warming lawsuit [pdf link] is the first to stem from the idea.

So how will they get on?

In a strictly legal sense, the portents are not good.

The majority of the cases mentioned above (and there are others) did not result in sanctions that materially altered emissions, or that paid compensation.
Peter Roderick, a London-based adviser to the Climate Justice Programme who was involved in several of these cases, said."I think if as a lawyer people came to you saying 'I've suffered this loss, can we sue?', most lawyers would be very reluctant to take that on because no court has ruled on whether compensation can be given, and it would probably take years.
"But I can see how it could be done.
"So most of the actions so far aren't arguing for that, for compensation - they're trying to get curbs on emissions, and to get public bodies to act."

Even that, though, has proven hard.

Is the science of attribution up to it?

Even if it is, how do you assign degrees of responsibility to different countries, especially bearing in mind the international acceptance that developing countries have a right to increase emissions in order to promote development?

And how do you put a monetary value on a melting glacier?

On the other hand, some of the actions have been brought against states for apparently ignoring, in this special case of climate change, pledges they have made.

One that hasn't yet been tested, as far as I'm aware, is the EU commitment to the precautionary principle in environmental matters.

If there's a reasonable chance that rising temperatures will impact biodiversity or fish stocks, for example, doesn't that suggest the EU is obliged to take every action it can to reduce emissions?

Some clarity may emerge next month, when the US Supreme Court is due to rule on a set of cases known as the AEP cases that's been rumbling on since 2004.

A group of US states is asking power companies that they describe as "the five largest emitters of greenhouse gases in the United States" to cut back on those emissions.

It's said to be an important case in the sense of setting a legal precedent for others - at least, in the US.

Meanwhile, Mr Loorz and his group will presumably press on with their actions.

Whether they succeed or not in a legal sense, they have found a way of getting the issue of inter-generational equity on the news agenda.

In his words:

"If we continue to hide in denial and avoid taking action, my generation will be forced to grow up in a world where hurricanes as big as Katrina are normal, people die every year because of heat waves, droughts, and floods, and entire species of animals we've come to know disappear right before our eyes.

"This is not the future I want."