A CRITICAL SURVEY OF CLIMATE CHANGE LITIGATIONS IN EUROPE AND AMERICA

A CRITICAL SURVEY OF CLIMATE CHANGE LITIGATIONS IN EUROPE AND AMERICA 1- The US Scenario; 2- The EU Scenario; 3- A different approach: linking climate change claims to theprotection of human rights; 4- Conclusions;

0.1 CLIMATE CHANGE LAW SUITS • The definition “climate change litigations” may hardly identify a well defined cathegory of claims; • Since 2006, climate change related law suits have experienced a consistent increase in quantity and level of sofistication, as they are now becoming the most trusted alternative to international regulations; • The contexts witnessing the most relevant increases in the number of climate change related claims are North America and Europe; • It should be mentioned thought that actions related to climate change have been brought also in other jurisdictions, for example in Australia and New Zealand;

1.1 THE US SCENARIO • Extremely homogenous context, characterized though by a scarce attention to the topic of climate change; • Climate change related claims may fall under three different categories: • “REGULATORY” CLAIMS; • “MONITORING” CLAIMS; • TORT CLAIMS; • The absolutely predominant majority of claims falls under the first two categories, whereas just a few tort claims have been brought in this context;

1.2 REGULATORY CLAIMS THE MASSACHUSSETS VS. EPA CASE, 2007; SECTION 202(A)(1) OF THE CLEAN AIR ACT, requires the EPA to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." Twelve states and several cities of the United States brought suit against the EPA to force that federal agency to regulate carbon dioxide and other greenhouse gases as pollutants. ISSUES AT STAKE IN THE CASE: 1) Whether the petitioners had standing to sue; 2) Whether CO2 may be considered an "air pollutant" under the dispositions of the Clean Air Act; 3) Whether the EPA Administrator may decline to issue emission standards for motor vehicles on the basis of policy considerations not enumerated in section 202(a)(1);

Once considered the policy failures in regulating the topic of climate change, a number of subjects have been turning to judiciaries in order to urge public interventions; • A “gap filling” role: existing law is used to force or block regulatory behaviours; • Public and private actors, thanks to this instrument, are believed to have incentivated important reforms: for example partial reforms of the Clean Air Act (2000) or the National Environmental Policy Act (1969); • There has always been a common perception that global warming and related issues would have been ultimately decided by courts; • Interestingly, there are signs that such a common conception is recently beginning to “fade away”, as the “separation of competence theory” is progressively gaining ground. According to such a conception, regulation is not deemed, not anymore, as an appropriate task for the judges to carry out. • Some object though that common law judges are already accustomed to similar duties, and that in carrying them out they are often backed up by Governments. • Nevertheless, the so called “political question doctrine” has been recently –apparently- recalled also by the Obama administration;

1.3 MONITORING CLAIMS • These claims are indeed not particularly different from those falling under the regulatory claims category. The main distinction between them is the different way in which they try to obtain a similar scope; • Through these claims, it is made an attempt to impose new or more stringent obligations with respect of monitornig, assessing or disclosing the environmental impact of an activity; • The 2002 complaint for declaratory and injunctive relief; (NGOs and several cities brought suits against one US private investment company and a bank, which were conducting an environmentally dangerous activity without having prepared an EIA) • Numerically, the majority of climate change related claims fall under this category;

1.4 TORT CLAIMS • They represent a very small minority of the legal arguments brought before US judges; • The main reason of this shortage has to be found in the number of legal hurdles hindering similar processes. With these regards some scholars have used the definition of “liability wall”; • In order for the defendant to be held liable the actor should prove various elements. Among them we remember: • The existence of a damage; • A clear causal link between an activity conducted by the defendant and the damage; • The actor’s substantial interest for standing; • In the context of climate change all of these elements are lacking: • It is complex to clearly identify a damage, as climate change does not affect directly a specific inanimate object, which is about to be despoiled or damaged; • Extreme difficulty, given the actual scientifical knowledge, in proving a clear causal link between an activity and the damage itself; • Lack of locus standi or standing to sue;

From time to time new audacious doctrines have been advanced, aiming to get round the aforementioned stumbling blocks: • A stricter application of the precautionary principle; • Linking local causations to local consequences; • None of these theories have ever proved to be particularly convincing; • Since 2010 there have been some evolutions: despite being originally derided as “frivolous long shots that would be shot down quickly”, similar claims are actually increasing in number. • There is an increasing fear that they could ultimately develop as the asbestos related claims did in the recent past, leading dozen of companies to file for bankruptcy; • The Connecticut vs. American Electric Power Company case, 2005. The “political question doctrine”; • Carol Browner, President Obama’s senior adviser for energy and climate change warned that “courts are starting to take control of this issue”, and argued that setting environmental standards “is best done through legislation.”

1.4.1 THE KIVALINA VS. EXXON MOBILCASE • “The most dangerous litigation in America” (American Justice Partnerships); • Allegedly due to global warming, the icebergs which during the winter were used to protect the island from tides are now gone; • The district court dimissed the case in 2009, on the ground of a lack of locus standi, also labelling the question a “non justiciable political question”; • The case has been appealed in 2009 and it is now pending;

1.4.2 STATE RESPONSIBILITY FOR ENVIRONMENTAL HARM • An effective state responsibility scheme would greatly simplify matters, at least with regard to the identification of the subject liable; • The responsibility scheme of the European Union: the Francovich case 1991; • So far though, there have been almost no examples of effective scheme of state responsibility for environmental harm, on the national as well as on the international level. The few exceptions have been limited to extremely narrow contexts (bilateral treaties, specific activities); • The most hindering obstacle is proving the causal link between the damage and the activity, a problem which significantly increase as dealing with climate change consequences;

2.1 THE EU SCENARIO • Differently from the US one, this context is characterized by the heterogenous nature of the European Community, where each State tends to tackle domestic issues; • In terms of climate change, the most important regulation is the Directive 2003/87/EC; • It establishes a greenhouse gas emission allowance trading system, commonly known as ETS (Emission Trading Scheme); • Climate change claims may thus be included in the relevant number of proceedings brought before the Luxembourg Court with regard to the enforcement of such a system;

2.2 THE EU ETS SCHEME • The EU Emission Trading Scheme represents approximately 70% of global traded volumes in carbon products and 62% in physical volume; • In its basic structure it is a conventional cap-and-trade scheme. A fixed number of allowances are issued which are divided into a quantity of pollutant, which is emitted over commitment periods or phases; • Allowances are allocated to operators who are then obligated to monitor and report their emissions, and to surrender at the end each period an equal number of allowances to the units of pollution emitted. Penalties are attached to non compliance. The scheme also provides for the buying and selling of allowances between parties; • This system will soon enter its third phase, which will run for 8 years commencing 1 January 2013. the goal will be the ultimate reduction of carbon emission by 21% from the 1990 baseline;

2.3 EU CLIMATE CHANGE CLAIMS • We can approximately distinguish three categories of claims: • Challenges to the validity of the Directive: These actions are brought on the ground that the Directive is discriminatory in its scope (being thus not compatible with art. 234 EC, the “principle of equal treatment”), as it disciplinates only particular sectors. In the Societe Arcelor Atlantique case (2007), for example, the claim arose from the fact that installation producing alluminium and plastics are excluded from the scope of the Directive, while the steel sector, despite being in direct competition with them, is included; • Challenges to European Commission’s decision on the National Allocation Plans (designed by Member States in order to reallocate the allowances of national installations) annullment actions which form the largest part of the Courts’EU ETS docket. An example is the EnBW vs. Commission (2007), in which was highly stressed the concept of “direct concern”. This is now considered to represent the “orthodox position” of the Court: • Infringement proceedings: actions brought seeking declaration that Member States have failed to fulfill their obligations under the Directive. The Court made such declarations against Finland and Italy;

Quite clearly, all of the aforementioned may still fall under the regulatory claims category; • The number of climate change litigation is actually increasing, in the supranational as well as in the national level; • So far the EU ETS Directive has resulted in almost 40 proceedings before the Courts, the vast majority of them falling under the second category of claims; • The Court developed a very restrictive approach to standing in judicial actions, thanks to the afoermentioned “direct concern” doctrine. • Weirdly enough, the challenges are still increasing in number, despite their near-zero prospects of success; • Different theories have been puth forth to explain such an apparently contradictory phenomenon, none of them particularly convincing;

2.4 MAIN LIMITS OF THE EUROPEAN APPROACH • EU ETS litigations are not concerned with the impacts of climate change, but rather with the finessing of a market mechanism from the perspective of key market actors within the established confines of EU law; • Environmental issues represent a complex problem. The EU community though has recently appeared unwilling to discuss it further, as it seems to consider the ETS Directive a sufficient means to regulate this topic; • As noted by many scholars (Philippe Cullet among others) “it cannot be expected tat the Climate Change Convention, the Kyoto Protoco, or any other protocol … would be sufficient to effectively mitigate global warming so as to avert the need for adaptation”; • Particularly, there is a consistent resistance to the development of stricter liability regimes (not only in Europe though);

3.1 A DIFFERENT APPROACH: LINKING CLIMATE CHANGE TO HUMAN RIGHTS PRINCIPLE • Shortage of international instruments dealing with environmental liability; • Linking climate change claims to the defence of human rights principle may help in finally obtaining a forum to protect environmental related rights; • Regional human rights systems may offer the best forum for individuals to confront states which fail to take steps to combat climate change; • Three courts of preminent importance: • The African Commission on Human and Peoples Rights; • The Inter American Commission on Human Rights; • The European Court of Human Rights; • Each of the three established systems has its own strenght, though none of them has obtained significant results in linking climate change claims to the protectionof human rights:

3.2. THE AFRICAN COMMISSION ON HUMAN RIGHTS AND PEOPLES’ RIGHTS • The African Charter on Human and Peoples’ Rights, the fundational documet of this system, is the only one that actually recognizes a right to the environment, at Article 24: “All peoples shall have the right to a general satisfactory environment favorable to their development.” • Moreover, the Court has entertained petitions based on violations of this right and found states in violation of their associated obligations; • The only indication of the ACHPR’s inclination to hold states accountable for climate change, however, was in nothing that “climate change is principally the result of greenhouse gases, which remain relatively high in developed countries”;

3.3.THE INTER AMERICAN COMMISSION ON HUMAN RIGHTSTHE INUIT CIRCUMPOLAR PETITION, 2005; It is the only regional body that has faced a petition based on the human rights consequences of climate change; The petition was ultimately dismissed because of the lack of jurisdiction. The IACHR invited then the petitioners and representatives from two international NGOs to a thematic hearing on the issue of Global Warming And Human Rights In The Americas, held in 2007; 4 questions addressed by the commissioners: • 1) How to attribute or divide responsibility among states in the region or even states that are not members of the OAS? • 2) How the rights violations suffered by the Inuit could be tied more closely to concrete acts or omissions of specific states? • 3) Whether the petitioners had exhausted domestic remedies; • 4) What examples of good practice could guide the commission in making recommendations?

3.4. THE EUROPEAN COURT OF HUMAN RIGHTS • Although the European Convention on Human Rights does not affirmatively guarantee a right to the environment, the ECtHR has held states accountable for human rights violations resulting from environmental damage in a number of cases; • These cases hold the state accountable for failure to protect individuals from actions of third parties, and tie the environmental damage to violations of Art. 8 (right to family and private life), art. 2 (right to life), art. 1(right to property); • These cases demonstrates a state’s positive obligation where inaction would exacerbate a threat to human rights, of which the state is aware;

4.1 CONCLUSIONS • What perspectives for climate change related claims (other than the so called regulatory claims)? • On one hand, there are no reason to expect a reduction in the amount of so called regulatory claims; • On the other, the increasing difficulty in developing international environmental liability schemes casts enormous doubts on the possibility, in the future, of bringing tort actions; • Peculiar nature of the harm related to climate change;

A CRITICAL SURVEY OF CLIMATE CHANGE LITIGATIONS IN EUROPE AND AMERICA