By Georgina Wade
Scientific advancements in extreme weather event attribution could have legal implications for decision-makers with a duty to manage foreseeable harm and plan for the future.
A report by ClientEarth warns that governments and business may be increasingly at risk of litigation for failing to prevent foreseeable climate-related harm to people and infrastructure. As cutting-edge climate science improves, event attribution studies are now able to quantify the link between human activity and extreme weather events.
For many legal systems, having this ability to foresee damage is a key requirement in establishing a duty of care. And with shifts in climate politics and the absence of enforceable commitments from government, courts are playing an increasing role in apportioning responsibility for loss and damage resulting from climate change.
Lead authors of the report Sophie Marjanac, Lindene Patton, and James Thornton believe this breakthrough will only galvanise future climate change litigation.
“We expect that evidence from attribution science will catalyse future climate change litigation,” they said. “Claims are likely to arise when actors fail to share or disclose relevant knowledge or fail to take adaptation actions that would have protected those to who they owed a duty of care.
2017 global trends point to over 1,200 climate change or climate change-relevant laws worldwide, a twentyfold increase over 20 years. Although a vast majority of these cases are within the United States, a United Nations report notes that legal action is starting to emanate from all corners of the world.
And some of these cases have been pivotal in enacting climate change mitigation and adaptation efforts, such as a 2007 case where various states and cities demanded the US Environmental Protection Agency regulate carbon dioxide and other greenhouse gas emissions. In separate cases, the Urgenda Foundation joined with several hundred Dutch citizens to sue the government over its decision to lower its greenhouse gas reduction target while a court in Pakistan ruled in favour of a farmer who sued the national government for failure to carry out the 2012 National Climate Policy and Framework.
Executive Director of the Sabin Center for Climate Change Law at Columbia Michael Burger believes legal action will prove significant in pushing the countries closer to their agreed target of avoiding global warming of 2 degrees Celsius or more.
“Legal action will be used to stave off the worst aspects of climate change,” he said. “Litigation will be absolutely essential in instigating action in the US and elsewhere, and it will continue to do so.”