Liability for Greenhouse Gas Emissions – Litigation Challenges Zen A. Makuch IC Legal/Centre for Environmental Policy Imperial College, London, UK

What to Target?  Priority 1 – Sea Level Rise – Due to sound science  Priority 2 – Natural Systems Damage + / or rights impacts (coral; Arctic; permafrost; tundra; native peoples – Kivalina)  Priority 3 – Damage from Rainfall Patterns and Extreme Weather Events

Interesting Case Law  Whitman (2003) – CO2 a pollutant  Massachusetts v EPA (2005) – GHGs as injury in fact; EPA duty to enforce GHGs  US Federal Court (2009) – GHGs actionable vs. Power companies  Ecojustice (2009) Cdn Fed Court of Appeal – Kyoto – compliant plan = law not policy  UK World Dev’t Movement (2009) – RBS – lending and environment standards

Interesting Case Law  Kivalina v Exxon (2008) – melting Arctic sea ice – destruction of village of Kivalina  Evidence of coastal erosion and global warming link  Relief sought from oil and gas and coal companies  Village relocation damages $ million  Remedies in common law and “civil conspiracy” = joint and several liability

Litigation Strategy - Plaintiffs  Plaintiff 1 - Those that suffer harm from climate change (farmers, fishermen, native peoples, small island states)  Plaintiff 2 – ENGOs (perhaps with a “sufficient interest” in some jurisdictions)  Plaintiff 3 – Governments acting in the public interest or with enforcement duties (consider fiduciary duty breaches too)

Litigation Strategy - Defendants  Energy Suppliers that use fossil fuels  Fossil Fuel Companies  Product Users of Oil and Gas (car company)  Financiers of anti-climate investment  Governments that fail to meet legal goals or otherwise fail to address climate change damage

Barriers to Litigation and Drivers  Causation (sea level rise is easiest) –IPCC reports getting more certain (90% of climate change is anthropogenic) –Do not make a Comer (2006) Calif GM (2007) mistake re full damages from partial emitters  Non-justiciable policy questions - Use haz waste, asbestos, tobacco, toxic tort analogies (failure to warn, misrepr’tation, civil conspiracy, DES, tools)

Damages Calculation – Exxon / USA  Exxon Mobil - Foreseeability defence – use emissions as proportion of all emissions since 1750 and examine increase in concentrations. Also examine Exxon’s share and note that Gt C was 3.77% of overall CO2 emissions when 76.19% of all CO2 produced = 2.87% of emissions (IPCC and Mauna Loa records used) (7.57 Gt C – )($227 Billion)  USA – – 24.8 Gt C ($744 Billion)

Weather Events Climate Change Impacts Defendant Liabilities (Million US Dollars) LocationEvent/sImpact Cost (Billon US Dollars) Exxon Mobil Liability range U.S. Liability range BangladeshSidr Cyclone Damage to property and loss of life ( ) Cyclones, storms, flooding, drought Damage to property and loss of life ( ) MyanmarNargis Cyclone Damage to property ( ) EuropeHeat wave (2003)Livestock and crop losses 15.00( ) *

Apportionment Principles – Transport Sector  Polluter Pays principle  Ability to pay - 6 (us); 3 (Gov); 2 (Oil); 1 (Car) – measured in $ trillions  Economic gains  Mens rea  Capacity to innovate  Responsibility for civil society

Results of Apportionment Survey  Defendants – Government / Oil and Gas / Auto Sector / Consumers  Results – 50 % Government / Roughly 25 each for Oil and Gas and 0 for consumers  Emphasis on - responsibility to civil society polluter pays – mens rea – economic gains

Other Considerations  Target imminently non-compliant CCC states  Determine their world emissions contribution by sector (e.g., US transport = 7%)  Use anticipatory and preventative damage claims based upon reasonable probability (abate, mitigate and prevent tort-type bases)  Apportion damages accordingly  Note the “no-harm” rule in international law as well (fault- based state harm and risk prevention rule)(this plus a Treaty remedy re climate change)(requires proportionality)  Apply same principle to e.g. Fund/Compensation concepts (e.g. EU Fund €650 million) (economic rights and DCs/LDCs)