Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation by Elena Kosolapova Centre for Environmental Law University of Amsterdam

Outline: Introduction Summary of claims Analysis of legal challenges Conclusion

Introduction UNFCCC liability mechanism  NO Claims in international courts  NO Claims in domestic courts  YES

Climate Change Litigation: 1.Claims related to procedural injury 2.Claims for injunctive and/or declaratory relief 3.Claims for compensation

Claims summarised California v GMC California v General Motors Corporation, et al., Case No. C MJJ, Order Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007) Comer v Murphy Oil Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL (C.A.5 (Miss.)) Kivalina Native Village of Kivalina v ExxonMobil Corp., et al.,2009 WL (N.D. Cal.)

California v GMC Public nuisance global warming lawsuit for damages Dismissed under political question doctrine Appeal filed with Ninth Circuit 10/2007, Briefing completed 8/2008, Oral argument in 2009

Comer v Murphy Oil Public nuisance class action suit for damages Dismissed due to lack of standing & under political question doctrine Plaintiffs appealed

Comer v Murphy Oil (cont’d) 16 October 2009: district court’s judgement reversed by Fifth Circuit Plaintiffs-appellants have Article III standing Claims do not present non-justiciable political questions

Kivalina Public nuisance global warming action for damages 30 September 2009: claim dismissed by district court due to lack of standing & under political question doctrine

Legal Challenges: Non-justiciability of political questions Standing Causation Attribution (please see paper) Retroactivity (please see paper)

Non-justiciability of Political Questions Separation of powers Political questions to be decided by the elected branches

Standing [T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.[1][1] [1] Friends of the Earth, Inc. v Laidlaw Environmental Services, Inc., 120 S.Ct. 693 (2000), p. 704, citing Lujan v Defenders of Wildlife, footnote omitted.

Causation 1.Causation as an element of standing (“fairly traceable”) 2.Causation on the merits Complex causal chain: GHG emissions from a given source  global warming (  ) climate change  extreme weather events  injury suffered by plaintiffs

Conclusion Challenges at the interstate level: Attribution, causation, retroactivity & standing PLUS Breach of an international obligation Competent courts Compensation amounts DECLARATORY RELIEF?

Questions? Comments?