Filling the evidentiary gap in climate litigation by Rupert F. Stuart-Smith, Friederike E. L. Otto, Aisha I. Saad, Gaia Lisi, Petra Minnerop, Kristian Cedervall Lauta, Kristin van Zwieten & Thom Wetzer June 28, 2021, Nature Climate Change (2021)
Lawsuits concerning the impacts of climate change make causal claims about the effect of defendants’ greenhouse gas (GHG) emissions on plaintiffs and have proliferated around the world. Plaintiffs have sought, inter alia, compensation for climate-related losses and to compel governments to reduce their GHG emissions. So far, most of these claims have been unsuccessful. Here we assess the scientific and legal bases for establishing causation and evaluate judicial treatment of scientific evidence in 73 lawsuits. We find that the evidence submitted and referenced in these cases lags considerably behind the state of the art in climate science, impeding causation claims. We conclude that greater appreciation and exploitation of existing methodologies in attribution science could address obstacles to causation and improve the prospects of litigation as a route to compensation for losses, regulatory action and emission reductions by defendants seeking to limit legal liability.
Study: Climate lawsuits aren’t relying on the latest science by Andrew Freedman, June 28, 2021, Axios
Lawsuits filed against fossil fuel companies and governments for causing global warming have met a decidedly mixed fate, with most getting dismissed for failing to prove a causal link between emitters’ actions and harm done to the plaintiffs. However, that could soon change, a new study finds.
Why it matters: Courts are an important venue for cities, states and citizens’ groups seeking carbon-cutting mandates — especially as governments fail to slash greenhouse gases fast enough to avoid potentially devastating effects.
Driving the news: There have been a few recent successes in court cases, such as the move by a court in the Netherlands to require Royal Dutch Shell to make deeper cuts to its emissions.
Now a new study published Monday in Nature Climate Change that examined 73 court cases examined in 14 jurisdictions finds that plaintiffs aren’t using the latest and most compelling scientific evidence in court. **Are their lawyers doing that intentionally? Working for big oil and frac on the sly?**
- Such evidence, researchers argue in the study, could help plaintiffs prove that a particular fossil fuel company or government has caused them harm via global warming.
What they found: The study finds that ongoing improvements in climate “attribution” science could help plaintiffs meet evidentiary tests for showing causation. That’s the research field that explores the extent to which human-caused climate change is altering the likelihood and severity of extreme weather events, such as heat waves and floods.
- The researchers, from European institutions and Harvard Law School, found that limitations in the scientific evidence presented to courtrooms may have contributed to their failure to prove a causal link between an entity’s emissions and harm suffered.
- The researchers found that those arguing climate cases are simply not taking advantage of the latest climate science findings. For example, the study says it’s now possible to break down the attribution of climate impacts to individual greenhouse gas emitters, such as a single oil and gas company.
- “Attribution science is a fundamental source of evidence for informing and substantiating causal claims about climate change impacts,” the study states.
- The study concludes that courts have wrongly found that it is too difficult to determine how an individual emitter has caused particular climate impacts.
Intentionally, to serve polluters, via the bench? That reminds me of my ex lead lawyer, Murray Klippenstein, advising me in 2007 that science will lose my case, the law will win it. I thought the opposite, which is why I presented more in my public talks on the damning regulator and industry data I had uncovered than on legal matters.
If citizens with direct experiences of being harmed by judges lying in rulings and or enabling oil, gas and frac industry crimes don’t talk about the bad judges, who will? Lawyers likely won’t – their asses and careers would go up in smoke. Obedient silence by lawyers keeps the mostly white male judicial industry abusing the public interest and polluters polluting. My ex lawyers would not even let me copy them on my letter to the Canadian Judicial Council about Supreme Court of Canada Rosalie Abella lying in her ruling in Ernst vs AER (the four dissenting judges clearly and carefully pointed her lie out).
Telling the truth is vital, especially about bad judges! They need to be exposed and the citizenry needs to face the galling truth that ordinary families harmed by frac’ing do not have access to “justice,” we just get our savings wiped out by expensive law (and court costs ordered against us as well even when it’s clear our cases are in the public interest) and lying quitting lawyers breaking the rules with their “regulator” – the Law Society of Ontario – enabling them.
What they’re saying: “There seems to be a considerable lag between scientific understanding and that filtering through into society. A much larger lag than I had expected,” Friederike Otto, a climate scientist who researchers extreme event attribution at the University of Oxford and study co-author, told Axios.
- “For me, as scientists, that means we really need to explain more what we do, how we do it, and what that means in terms of what we know and what we don’t know for losses from climate change,” she said.
- “In fact, recent months have shown that the courts can really catalyze some change. This will only be possible though if the evidence presented is as strong as it can be.”
What’s we’re watching: Whether this study results in any shifts in litigation strategies in the U.S. or abroad, which could raise the level of risk for business as usual at oil and gas firms and national governments alike.
New climate science could cause wave of litigation against businesses – study, Experts say scientific advances are making it easier to attribute the damages of climate breakdown to companies’ activities by Fiona Harvey, 28 Jun 2021, The Guardian
Businesses could soon be facing a fresh wave of legal action holding them to account for their greenhouse gas emissions, owing to advances in climate science, experts have warned.
More than 1,500 legal actions have already been brought against fossil fuel companies whose emissions over decades have played a major role in building up carbon in the atmosphere.
Last month, in a shock ruling, the multinational oil and gas company Shell was ordered by a court in the Netherlands to cut its emissions by 45% in the next decade. Shell has said it will appeal against the decision. Earlier this month, a Belgian court ruled that the government’s failure to tackle the climate emergency was an infringement of human rights.
Rupert Stuart-Smith, researcher at the Oxford University sustainable law programme, and lead author of a new study, said more such cases were likely to be successful, as new science was making it possible to attribute the damages of climate breakdown more directly to companies’ activities.
“It’s no longer far-fetched to think that these companies can be taken to court successfully,” he said. “The strength of evidence is bolstering these claims, and giving a firm evidentiary basis for these court cases.”
That success could in turn unleash a further new wave of litigation, he said. “It’s possible that we will see precedents made that will make it easier to file future lawsuits on climate impacts.”
The impact was also likely to be felt in the form of less investment in companies with higher emissions, he said. “If more of these cases are successful, then corporate emissions could be seen as liabilities,” he told the Guardian. “There is concern in investor circles about the legal risk. This could have substantial consequences for investors.”
Previous attempts to take companies to court for their carbon output have often run into trouble, as courts have rejected links between companies’ activities and specific damage to the climate, or extreme weather events. However, using more up-to-date science can overcome some of these difficulties, according to Stuart-Smith and colleagues, in a paper entitled Filling the Evidentiary Gap in Climate Ligitation, published in the peer-review journal Nature Climate Change on Monday.
The paper cited the case against oil giant ExxonMobil brought by the village of Kivalina in 2008 which was thrown out because judges found a lack of evidence linking the company to climate change and to specific harms suffered by the village. If there had been access to more recent scientific techniques, the report’s authors believe, the outcome might have been different.
The researchers examined 73 lawsuits around the world, and found that many failed to use the latest science in their evidence. They concluded that the chances of success of such litigants could have been improved if they had used the latest science, which is increasingly able to show clear links between companies’ activities giving rise to carbon emissions, and the damages caused by extreme weather.
“Limitations in scientific evidence in the past played a role in cases,” said Stuart-Smith. He called on lawyers to work more closely with scientists to ensure that the best evidence was being used.
The branch of climate study known as attribution science has moved on considerably in the last 15 years. It used to be possible only to say that increasing greenhouse gas emissions were very likely to have led to an increase in extreme weather around the world. Today, scientists can say with great accuracy that specific events were caused or made much more likely by the climate crisis, and can attribute specific damages to the human actions involved in changing the climate. Scientists can also estimate how much certain companies, which are very large emitters, have contributed to make such events more likely.
For instance, research published last month found that the damages from Hurricane Sandy in 2012 were increased by at least $8bn from the impact of human actions on the climate, and another study found climate change responsible for $67bn of damage from Hurricane Harvey in 2017.
Refer also to:
2021 07 01: Lytton BC, photos by Fire Dept, after three days in a row of breaking temperature records, before and after burning down:
At that intersection was a home, the Canada Post office, the BC Ambulance Service, and a hotel.
The MP for the area says 90% of Lytton has burned.
The search for loved ones who haven’t registered at emergency centres is ongoing.
BC Tap Water Alliance Press Release: Attribution Science Proves Now is the Time for Canadians to Step Up and Sue the Canadian Association of Petroleum Producers and the Alberta Energy Regulator for Cumulative Fraud If you are able to find lawyers that won’t break the rules, quit on you, refuse to return your property to you, and misrespresent you, blaming you in sworn Affidavit filed in court for their tardy cruel behaviours.
Lawsuits in USA testing “attribution science.” Researchers can link weather events to emissions and companies responsible. “This body of literature…tells us that dangerous climate change is upon us, and people are suffering and dying…and it’s going to get worse.” For any potential uncertainty about climate attribution, there’s at least one truth that should override the rest: Fossil fuel companies “were aware decades ago what trouble climate change would be.”
“Affair of the century!” Paris court convicts French gov’t of failing to address climate crisis and not keeping its promises. Fossil fuel pollution quote of the century by Jean-François Julliard: “No more blah blah.”
Judicial Hanky Panky Supreme: “these robed sages are in fact mere grubby politicians….” Amy Coney Barrett’s dad was lawyer at Shell (for decades) that has massive climate case before US supreme court. “And just like Republican politicians, the conservative judges are dedicated to preserving the right’s minority rule.”
Kids tried to sue Canada over climate inaction. They lost, Not for the courts to decide, Harper Gov’t appointed judge says. Kids plan to appeal. Bravo kids! I am grateful and in awe of you, but don’t expect “justice” to be served by our oil-soaked Supreme Court of Canada, or your Charter rights respected.
The biggest con ever? Millions of abandoned wells enabled by politicians, regulators & courts. Oil, gas ‘n frac industry rapes, profits ‘n runs, hangs the public with clean up, a climate menace & endless health harms & cruelty
Another cowardly North American judicial pass the buck? Federal appeals court throws out Juliana v. United States climate lawsuit in 2 to 1 ruling. In her blistering dissent: Judge Josephine Staton criticized the notion that courts have no role to play, saying govt itself acknowledged “the United States has reached a tipping point crying out for a concerted response – yet presses ahead toward calamity.”
Judicial Tragedy: U.S. District Judge William Alsup wanted to “stick to the science” and avoid politics, presided over standing room only tutorial on climate change, but let big oil off using politics. Science is on humanity’s side, the law is not.
New study says shale gas not worth it, not even for the jobs: “Air pollution from shale gas development activities in Pennsylvania, Ohio and West Virginia from 2004 to 2016 resulted in 1,200 to 4,600 premature deaths in the region” costing $23 billion. “Climate impacts produced mid-range costs of an additional $34 billion” while cumulative impacts on water and air quality, ecosystem, climate, labor markets and public health “are still largely unexplored and unaccounted for.”
Encana, one of the world’s 47 most polluting companies, named “morally responsible” for death & destruction; First time a human rights body stated fossil fuel companies can be found legally and morally liable for harms linked to climate change.
Encana named in 3 lawsuits by 2 California counties and 1 city claiming damages, that Encana and other companies deliberately presented misinformation about climate change and hindered action to address it
Rhode Island vs 21 Oil & Gas Companies: Judge William Smith characterized operations “leading to all kinds of displacement, death (extinctions, even), and destruction….Defendants understood the consequences of their activity decades ago…. But instead of sounding the alarm, Defendants went out of their way to becloud the emerging scientific consensus and further delay changes – however existentially necessary – that would in any way interfere with their multi-billion-dollar profits.”