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1 March 2022
By Louise Fournier, Legal Counsel Climate Justice and Liability, Greenpeace International
Community- and activist-led litigation against the ‘Carbon Majors’ reinforces rule of law in at least two ways: it shows that nobody is above the law; and it emphasises the right to equal dignity.
Evidence gathered by journalists, campaigners and academics suggests that for nearly half a century, the fossil fuel industry has known that unrestricted production, extraction and consumption of their fossil fuel products creates greenhouse gas (GHG) emissions that change our climate and pollute the planet. Nonetheless, Unearthed has documented coordinated efforts to conceal and deny their own industry knowledge and to discredit the growing scientific evidence showing the consequences of fossil fuel pollution, thereby confusing public understanding – and other research suggests that they continued to do so after the signing of the Paris Agreement. For instance, Dr Supran and Professor Oreskes demonstrate that ExxonMobil has shifted the blame to individual consumers, contending that they are the ones to blame, while benefiting and promoting from a fossil fuel economy. This argument is increasingly difficult to sustain, with science showing that 90 fossil fuel and cement producers, including 47 investor-owned companies (the Carbon Majors) contributed an estimated 66% of all anthropogenic CO2 from 1751 to 2016, and that the top 20 of these companies have collectively produced 35% of all fossil fuel emissions worldwide from 1965 to 2018.
Despite the clear evidence showing the impact of the Carbon Major’s activities, as well as the large body of evidence showing the fossil fuel industry’s history of concealment and denial of the risks, international climate politics have largely focused on the roles of nation states. Yet, the notion that political power resides exclusively with governments is fundamentally flawed. In an international system where rules and laws are designed to govern inter-state relations, the Carbon Majors have benefited from the argument that since they do not have legal personality under international law, they do not hold any obligations. However, to accept this is to go against the fundamental tenet of the rule of law that “no one is above the law”. An essential part of the rule of law is accountability. Non-state entities have power that eclipses that of many nation states, and, in the climate context, a much larger share of the responsibility.
Community members, civil society and local governments are ensuring accountability of climate polluters under the law. As shown by the landmark decision of Milieudefensie et v Royal Dutch Shell Plc (see Setzer and Highman’s blog), companies and other entities in the value chain have obligations independent of governments to prevent and redress human rights harms in the context of climate change. Specifically, the Dutch first instance court, in responding to Shell’s arguments that government policy is needed to change the energy market and tackle climate change, held that the “uncertainty whether states and society as a whole will manage to achieve the goals of the Paris Agreement, do not absolve Shell of its individual responsibility regarding the significant emissions over which it has control and influence”.
With this clear pronouncement on the obligations of corporations to act on climate change, we can expect more cases to be brought against polluting corporations. The Shell decision was based in tort law but interpreted through international law such as the UN Guiding Principles on Business and Human Rights. The decision, paired with proposals for legislation like the EU Due Diligence law, will likely inspire other lawsuits to hold high-emitters (and their financial backers) accountable, as we have seen with the immediate launch of a lawsuit against Volkswagen for fueling the climate crisis.
The contribution of climate litigation to strengthening the rule of law goes beyond accountability. By launching movement-led climate cases against major corporate polluters, communities seeking climate justice also contribute to the principles of equal dignity of all under the law. As affirmed by the Universal Declaration of Human Rights, the “inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and as such “human rights must be protected by the rule of law.”
Climate justice and the rule of law: asserting the equal dignity of all
Through the sheer act of taking back power and going to court against Carbon Majors, climate-impacted communities and activists exercise their right to equal dignity in the face of the climate crisis. Indeed, the rule of law can be seen as a social practice by which “the people (…) choose the terms of collective life and implement those decisions through law”, while also “affirm(ing) the equal dignity of all persons”. This theory of the rule of law is particularly relevant for climate justice, as central to the various demands and understandings of climate justice is the belief that people have an equal right to live in dignity in the face of the climate crisis.
In 2015 after super-Typhoon Haiyan claimed thousands of lives and affected millions of others in the Philippines, a group of typhoon survivors, individuals, local groups, and NGOs brought a petition in front of the Commission on Human Rights of the Philippines. The community leaders requested investigation into the responsibility of the Carbon Majors for human rights impacts resulting from climate impacts, such as Typhoon Haiyan, which was made worse by warming temperatures. This Commission launched a national inquiry, which is significant because it is the first time that a human rights body has asserted its authority to investigate multinational fossil fuel companies for their climate-related human rights harms. While waiting for the upcoming final decision, the Commission has already granted two of the petitioners’ demands by establishing the Climate Change Observatory, which acts as a public repository of evidence and a mechanism for monitoring of climate-impacted areas in the Philippines, making it a useful resource for litigants in fortifying or building their climate case in the Philippines or worldwide.
The petition in the Philippines is also significant in showing how through the rule law, a group of people can be on equal footing with the worlds’ largest corporate powers and hold them accountable for their decades of climate destruction. The fact that this began as people in the Philippines asserting their basic needs and equal dignity and that it has become the leading inquiry in the matter shows what happens when you pair the power of movements and the rule of law to tackle unchecked corporate power.
Finally, a recent injunction granted in Argentina by the Federal Court of Mar del Plata against offshore exploratory drilling, which directly affected the interests of Carbon Majors, was hailed as a victory for civil society as it followed weeks of mass mobilization and protests by the local communities. The Federal Judge had cited as the basis for his decision the great public interest and concerns for a "dignified life” for present and future generations.
By holding the Carbon Majors accountable through people-powered litigation, communities are reinforcing the rule of law as an instrument to seek climate justice and the equal dignity of all.
Image: Candlelight Commemoration 3 Years after Typhoon Haiyan in the Philippines, 2016 Roy Lagarde for Greenpeace. On the eve of Typhoon Haiyan 3rd year anniversary, people from Tacloban light candles that spell out "Climate Justice”, to commemorate the devastating landfall. The fossil fuel companies are being investigated in the Philippines for allegations of human rights abuses resulting from climate change.