Category: Law & Justice

Developments in attribution science may lead to more climate change litigation

Developments in attribution science may lead to more climate change litigation

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.”

Cover photo by Waugsberg/Wikimedia Commons (CC BY-SA 3.0): Group of statues by Balthasar Schmitt (1858–1942) comprising Justitia flanked by Innocence (left) and Vice (right) on top of the southern gable of the Palace of Justice, Munich, Germany.
The Great Flood of Baton Rouge: One year later

The Great Flood of Baton Rouge: One year later

By Gracie Pearsall

In August of 2016, the worst rainstorm in state history hit Louisiana and devastated Baton Rouge. The locals have since dubbed the event the “Great Flood” – an apt name as the rainstorm caused flooding of almost biblical proportions. Inadequate support from the Federal Government exacerbated the immense destruction. The American Red Cross declared this rainstorm the worst natural disaster since Sandy. Yet, while the government and fellow Americans gave the victims of Sandy an outpouring of support, the victims of the Great Flood experienced mostly neglect and abandonment.

Now, one year has passed and the victims of the Great Flood are still trying to rebuild their homes and regain a sense of normalcy, all while the federal government continues to ignore the victims’ needs. This negligence disproportionally affects Baton Rouge’s most disadvantaged, who rely on relief to rebuild. In the face of a changing climate, in which such extreme events become more frequent, negligence will disproportionally the most disadvantaged.

The Aftermath

From August 11th through August 14th of 2016 an unnamed storm dumped 7.1 trillion gallons of water onto the greater Baton Rouge area. The subsequent flooding killed 13 people, damaged 100,000 homes, and displaced thousands of people. In a span of three days, Baton Rouge received two feet of rain, which pushed river levels to record highs. The rainfall alone would have been enough to inundate the area, but once the rivers overflowed, flash floods tore through the region.

The Federal Government administers disaster relief on an ad hoc basis, and provides funds to states and localities after disaster strikes. The victims use the money to rebuild homes, business, and infrastructure. The damages from the Great Flood tallied up to $10.3 billion dollars, and the state needed $3.7 billion of federal funding to administer relief. However, congress only provided Louisiana with $1.7 billion – only 13 cents per every dollar of damage.

Vulnerable populations

Low-income households often lack the resources to quickly rebound from natural disasters. Yet, vulnerable populations find themselves concentrated in undesirable areas with high natural disaster risks because the cost of living is low. Such is the case in north Baton Rouge, the area that the Great Flood affected the most, and where one in four households lives in poverty. Institutionalised neglect has plagued North Baton Rouge. Abandoned properties and streets lined with ditches instead of sidewalks expose rampant urban decay in this area, due to lack of investment, maintenance and resources. Recent closures of stores and two hospitals further exemplify the persistent decline of resources in north Baton Rouge.

When the flood hit, neither the infrastructure nor residents of north Baton Rouge were prepared. Many residents were dependent on the assistance from FEMA (Federal Emergency Management Agency), non-profits, and other agencies. The area was already severely lacking resources, and the inadequate relief punctuated the hardships. However, even when support fell short, the majority of survivors were determined to remain in the area and rebuild.

A year later, despite this community’s resilient spirit, north Baton Rouge still displays signs of neglect. Thousands of people are still displaced from their homes. Many are still living with their relatives or staying in FEMA trailers in front of their gutted homes. Repairs have been slow and many homes still have not even begun the rebuilding process

But in the wake of the flood, the most devastating impact has been the emotional and psychological toll on the survivors. The emotional and mental health consequences are not as visible as physical destruction, but nonetheless have devastated Baton Rouge. The victims not only had to deal with losing everything, but also the feeling of being abandoned in a time of need. A state mental health support agency has reported that feelings of hopelessness, despair, cases of depression, and problems eating and sleeping have significantly increased post-flood. Many survivors report feelings of anxiety and fear every time it rains because they are reminded of the flood. Police report that since the flood, incidents of domestic violence and alcohol abuse have increased as well.

Emotional distress is virtually universal after a natural disaster, and mental health support is a crucial aspect of rehabilitation. Louisiana Spirit is a state agency that provides counselling and helps people recover in the wake of natural disasters. However, the Trump administration recently denied a state request that would have authorised much-needed funding for Louisiana Spirit beyond August.

Links to Climate Change

By any measure, this storm was extreme. While it is difficult to attribute a single event to climate change, research has shown that the Great Flood is linked to the changing climate. Climate change did not cause the Great Flood, but it altered background climatic conditions to be more favourable to extreme precipitation events. The current strategy for handling natural disasters is recovery-focused. However, as extreme events become more frequent and affects more people, response plans should be focused more on preparedness and resiliency.

Nevertheless, in spite of the insufficient governmental response to this catastrophe, the people of Baton Rouge are determined to rebuild their lives and ensure that their community is prepared for the next flood. Hundreds of north Baton Rouge Citizens filed a class action lawsuit against the city, claiming flooding was amplified due to drainage valves that were closed for maintenance and were never re-opened. The citizens recognise the value that preparedness has in the face on the coming storms. Their resiliency should be mimicked by resilient policy, such as elevation standards in flood-prone areas and early flood warning systems. The situation in Baton Rouge exposes how the current disaster relief administration falls short, thus leaving vulnerable populations to endure the changing climate’s furore alone.

Cover photo via Wikimedia Commons (CC BY-SA 3.0): The Horace Wilkinson Bridge in Baton Rouge.
Deploying the science of extreme weather attribution in the courts

Deploying the science of extreme weather attribution in the courts

By Sophie Marjanac and Lindene Patton, lawyers at ClientEarth in the UK and Earth & Water Law in the US, respectively.

For decades, proving the link between human greenhouse gas emissions and their impact on extreme weather events was thought to be near impossible. Now, scientific advancements in extreme weather event attribution are turning this assumption on its head.

At the same time, courts around the world are increasingly being asked to consider questions of liability arising from a relationship between the loss and damage caused by an extreme weather event and climate change.

From a legal view, the information that attribution studies provide about the increased characteristics of extreme weather events – such as heatwaves, droughts or storms – is crucial. Having the ability to foresee damage is a key requirement in establishing a duty of care in many legal systems.

This breakthrough will galvanise future climate change litigation. Cases are likely to involve local government agencies, professionals or companies that own or manage public and private infrastructure and have a duty of care to manage climate-related risks.

And this fusion of science and the law could spur action from governments and businesses to mitigate greenhouse gas emissions, helping to limit the extent of climate change in future.

Rapidly evolving scientific field

The science of determining the extent to which human-caused climate change has affected the characteristics of an extreme weather event is known as “event attribution”.

Scientists use a methodology to compare observations and records from the “real world” with the “counterfactual world” – a modelled simulation with human-caused forcings, such as  greenhouse gases and aerosols, removed.

Since the first attribution study on the 2003 European heatwave, scientists have published more than 140 studies looking at weather events around the world.

The strength of attribution science is based on three “pillars”: the quality of observed records; the ability of models to simulate climate events; and the understanding of physical processes that drive climate events and how these are being affected by climate change.

To date, confidence in studies of extreme heat and cold episodes has been the strongest – though scientists are increasingly able to differentiate between natural and human-caused influences on rainfall extremes and storms as well.

Significant uncertainties do remain, however, and in an inherently chaotic weather system it is technically impossible to state that a specific extreme event would “never” have occurred without human influence. Therefore, scientists reject simplistic statements such as “this event was caused by climate change” and instead express findings in terms of changing risk.

For example, a recent study in Australia found that “in the past, a summer as hot as 2016–17 was a roughly 1-in-500-year event”. It continued: “Today, climate change has increased the odds to roughly 1-in-50 years – a tenfold increase in frequency. In the future, a summer as hot as this past summer in New South Wales is likely to happen roughly once every five years”.

Implications for the law  

The fact that the findings of event attribution studies are expressed probabilistically does not diminish the usefulness of this evidence for the law or liability. The law has shown flexibility in assessing harm resulting from “negligence” (a type of legal wrong) where harm can only be proven using probabilistic methods.

For example, courts in the UK have accepted causation for civil cases relating to occupational exposure to toxic chemicals when the science has shown the risk of an event occurring has been increased by a 2:1 chance. This is known as the “doubling of the risk” test. Similar tests have been adopted as part of litigation in the US.

Attribution science is not only beginning to link emissions from human activities to specific physical events happening today, it is also producing clear warnings and evidence about the risks of extreme climate events in the future.

What does this mean for governments and business?

With these scientific breakthroughs, governments and businesses may find that the bar is raised with respect to the expectations of the public and the law.

Some nation states have legal duties to protect the rights of citizens. As our understanding of the future risk from climate change becomes more certain, governments may have corresponding legal duties to adapt physical infrastructure and disaster management plans to protect people and the environment.

Specifically, government or private bodies that own and manage critical public infrastructure – such as ports, roads, airports or even public housing – should be aware of, and adapt to, the expected exposures projected by the best available event attribution science. This is necessary to continue to achieve necessary protective and reliability standards – and maintain related economic stability. Infrastructure may need to be re-designed to ensure it can withstand future climate-related risks, such as heatwaves and floods.

In the US, claims against governments for failing to adapt to climate change could be brought under existing statutory obligations, however, the process is complex. Just as litigation arose after Hurricane Katrina, questions will be asked in the wake of Hurricane Harvey regarding appropriate planning, management and responses to flood risk in Houston.

Interestingly, the UK Climate Change Act allows the Secretary of State to request adaptation plans from public authorities that show their preparation and planning for the impacts of climate change.

The same liability risk applies to companies, too. A business that designs, constructs or manages public assets also faces future climate-related risk. If architects, engineers or builders use outdated building standards, or if codes are not updated to take into account exposures projected by advances in climate science, these companies and professionals may expose themselves to negligence claims. As has been seen time and again in the US in all manner of litigation, mere compliance with a statute or procurement rule or requirement does not necessarily satisfy professional duty obligations.

More frequent and severe weather events also physically threaten private assets and business revenue and related tax revenues, whether that includes a loss of productivity due to periods of closure, or higher energy costs. Businesses, just like governments, must assess and manage foreseeable climate-related risks.

We expect that attribution science will provide crucial evidence that will help courts determine liability for climate change related harm. But that liability may emerge first from traditional common law negligence causes of action, applied to professionals and parties with unique knowledge and/or duties, rather than from regulatory compliance actions.

Governments and businesses can no longer ignore the risk of extreme events or write them off as “Acts of God”. Instead, quantifying the impact that humans have on climate events could help us mitigate climate risk and adapt for a stable future.

This article originally appeared on Carbon Brief and is shared under a Creative Commons license.
Cover photo by Edward Lich/Pixabay (public domain).