Reflections From COP28: "Accountability Is Coming"
The UN climate negotiations in Dubai have wrapped up following a historic push to compel the UNFCCC Conference of the Parties to confront what is at the core of the climate crisis – to finally use the ‘F’ words in the official text. While it is significant that the outcome document recognized (after nearly 30 years) the need to transition away from fossil fuels, it is immensely far from the ambitious agreement that climate advocates called for. The question now seems to be, where do we go from here?
Some have suggested the whole process is broken, at a point of near-total takeover by the major polluters (and abetted by PR firms) and should be fixed by changing the rules of the game.
Others say we should look to mechanisms and fora outside the UNFCCC. Initiatives are underway to work towards a Fossil Fuel Nonproliferation Treaty, to criminalize ecocide, to seek climate change advisory opinions from several international courts and tribunals, and to transform anthropocentric legal systems by adopting rights of nature laws.
All of these approaches (and more) are needed to overhaul the status quo governance response to the climate emergency. What does seem clear at this point is that the law is an essential part of pursuing climate action and accountability. These two ‘A’ words go together, and, as climate journalist Amy Westervelt has said, accountability is not just another climate solution but actually has to be the first one. This is where climate accountability litigation – lawsuits generally aimed at holding governments or corporations accountable in the context of the climate crisis – comes in. A lot is happening in this space.
In just the last two weeks at COP28 there have been discussions, in side events and press conferences, touching on the increasing importance of bringing climate into the courts. I’ll get to some highlights of these discussions in a moment.
But first it is worth mentioning a couple of developments in climate litigation that arose at the same time that COP28 was underway. While world leaders and delegates assembled in Dubai, courts in Europe and the US saw climate accountability in action with a trial in Norway, a verdict in Belgium, and a new lawsuit filed in California.
Governments “Will Be Held Accountable” in Court
The trial, held in Oslo District Court from November 28 to December 6, put the Norwegian government on defense over its recent approvals of three new oil fields in the North Sea. Greenpeace Nordic and Natur og Ungdom (Young Friends of the Earth Norway) argue in their latest lawsuit against the Ministry of Petroleum and Energy that assessments of the fields’ expected contribution to global emissions were highly insufficient or (for one of the fields) not done at all. The groups base their legal challenge on a ruling from Norway’s Supreme Court determining that the government has a duty to assess the climate effects of new oil fields under consideration. By approving the new fields, the Ministry has contravened climate science and the law, the case contends, in violation of the Norwegian constitution and the UN Convention of the Rights of the Child.
A successful outcome in the case would mean “that the assessments we are disputing would have to be redone according to science, and that means a 1.5-degree [Celsius] scenario, and we know there is no room for new oil and gas in a 1.5-degree scenario,” Klimentina Radkova, climate and energy adviser and legal campaigner at Greenpeace Nordic, said during a COP28 press conference on December 6, speaking remotely from outside the courtroom in Oslo. Norway is among five wealthy countries that are responsible for 51 percent of planned oil and gas expansion through 2050, according to a September report from Oil Change International. Another recent analysis of planned fossil fuel expansion, the 2023 Production Gap Report, found that countries like Norway are set to produce more than double the amount of fossil fuels by 2030 than would be compatible with the 1.5 degree C warming limit. These production plans “are not just scientifically unsound. They are legally impermissible,” said Nikki Reisch, director of the Climate and Energy Program at CIEL. “This case in Norway is a reminder that no matter what happens in these halls at COP,” she added, speaking at the Dec. 6 COP28 press conference hosted by Greenpeace, “governments have existing legal duties outside and will be held accountable to them in court.”
A verdict from the Brussels Court of Appeal in a climate lawsuit against Belgium demonstrates that this is already starting to happen. On November 30 – the opening day of COP28 – the court upheld the lower court’s finding that Belgium’s insufficient climate ambition violates domestic and international law, and went a step further in ordering the government to take all necessary measures to reduce emissions by at least 55% by 2030. This is only the second time, following the historic Urgenda case in the Netherlands, that a court has imposed a binding emissions reduction order on a country. Lucy Maxwell, co-director of the Climate Litigation Network (a project of Urgenda), said this is a “significant ruling for the 40+ similar cases pending against high-emitting governments globally.”
In the US, the federal government is facing a new constitutional climate lawsuit brought by young people. This case, filed in federal court in California on December 10 as COP28 was in its final days, specifically targets the US Environmental Protection Agency (EPA). “EPA is the sole agency that was created to control air pollution and to protect public health,” said Andrea Rodgers, senior litigation attorney at the nonprofit law firm Our Children’s Trust. “For the last 50 years they’ve done just the opposite, by allowing amounts of climate pollution that EPA knows are life threatening to children.”
Plaintiffs are 18 children and teens from California, and they allege that EPA knowingly endangers their health and welfare in violation of the US Constitution’s rights to equal protection and due process as well as the fundamental right to life. The case also charges EPA with discriminating against youth, particularly in discounting the economic value of their lives in regulatory cost-benefit calculations that favors present values over future ones. Although children and future generations are disproportionately burdened with climate impacts that worsen over time, they “do not have the political protections that adults have,” Rodgers explained. “That’s why they’re going to the courts.”
The case is part of a burgeoning wave of rights-based climate lawsuits worldwide, many filed by youth, challenging governments’ responses to the climate emergency.
Courts are increasingly recognizing the critical role they must play in this context. Speaking at a COP28 side event on December 10 – the first time that judges have convened institutionally at a UN climate summit - Chief Justice Luis Roberto Barroso of the Federal Supreme Court of Brazil said that courts have a duty to intervene on matters of climate change given the shortsightedness of politics, and the inability of some populations – like children and future generations – to have a voice in decision-making. In constitutional democracies, he said, courts not only act as a constitutional check on the other branches of government, but also act as an “enlightening” and representative force to address social demands that other branches have disregarded and to protect fundamental human rights.
“History has shown that systemic changes almost always have been anchored in the legal system,” Christina Voigt, Chair of the IUCN World Commission on Environmental Law and a professor of law at the University of Oslo, said in her keynote address at the side event. “Courts and judges are an indispensable part of this transition. The climate challenge at its core is a justice challenge.”
“It is inconceivable that a court won’t intervene in what will be, and already is, the biggest violation of human rights in the history of mankind,” Eline Zeilmaker, a senior legal advisor at Milieudefensie, said during Greenpeace’s Dec. 6 press conference at COP28. “After all, if the law does not protect us against the destruction of our society, there is no justice.”
Corporate Climate Accountability: Potential Game Changer?
Mileudefensie won a groundbreaking judgment in 2021 in its climate accountability lawsuit against Shell. The ruling from the District Court of the Hague in the Netherlands ordered Shell to reduce GHG emissions across its entire supply chain by 45% (relative to 2019 levels) by 2030. It is the first judicial ruling to recognize that a corporation has a legal obligation to mitigate climate pollution in order to respect human rights and abide by the Paris Climate Agreement.
Shell has appealed the ruling, and according to Zeilmaker, the appeals court will hear the case in April 2024, with a decision hopefully coming by the end of next year. Although Shell appears to ignoring the trial court’s verdict as it doubles down on its core oil and gas business, Sara Shaw of Friends of the Earth International said at a December 10 COP28 press conference that the oil major is not legally permitted to disregard the ruling. “The original verdict said that Shell could not delay acting and that it must comply with the verdict regardless of when it appeals,” she said.
Regardless of the outcome, when it comes to litigation targeting powerful corporate entities, “There is going to be resistance,” human rights attorney Steven Donziger said during a December 7 panel on climate litigation, part of We Don’t Have Time’s COP28 Climate Hub at American University. He can attest to this from personal experience, having been targeted (and convicted) in a corporate-led prosecution after successfully securing a $10 billion verdict against Chevron for its pollution and poisoning of indigenous communities in Ecuador. Still, Donziger said, climate litigation “is a necessity. It’s an extremely important component of the climate justice movement.”
Prof. William Snape, assistant dean and director of the Program on Environmental and Energy Law at American University’s Washington College of Law, sitting beside Donziger on the panel, highlighted the state-law based climate accountability lawsuits brought by municipalities and states in the US against fossil fuel entities as a particularly significant strand of this litigation. If just one of these cases is successful,” he said, “that would be multiple of billions of dollars of liability. That would begin to change the game”
In September the state of California launched the latest of these cases, filing what Attorney General Rob Bonta says is a “game changing lawsuit” against five of the biggest oil and gas companies and their chief trade association. Speaking at a COP28 side event on December 3, Bonta explained the reason his office has decided to take Big Oil to court. “Big Oil has known since the ‘60s their product would cause climate change and damage the planet, and they purposely chose to deny the truth. Why? In pursuit of endless profits,” he said. “The deception from these greedy corporations needs to stop and they need to be held accountable for their misdeeds, thus our lawsuit.”
Bonta’s remarks from Dubai came as swarms of fossil fuel lobbyists and oil and gas executives – including ExxonMobil CEO Darren Woods - were roaming the COP28 halls, and in the case of ADNOC’s Sultan Ahmed Al Jaber, presiding over the entire conference.
Some campaigners have called out fossil fuel heads and lobbyists as “merchants of death.” A new report from Greenpeace Netherlands released during COP28 attempts to put some numbers behind that label, estimating that global heating driven by the emissions of nine major European oil and gas companies in 2022 alone could result in at least 360,000 premature deaths before the end of the century. A companion publication issued with the report explores potential “entry points” for criminally prosecuting fossil fuel companies for recklessly endangering human lives in five countries – the UK, Italy, France, the Netherlands, and the Czech Republic.
“We believe that it is time that prosecutors take that responsibility, take all the evidence that is already there, and make use of those entry points to hold fossil fuel companies legally to account for the deaths that they are causing with their emissions” Lisa Göldner, Fossil Free Revolution Campaigner, Greenpeace International, said during a December 5 COP28 press briefing hosted by Climate Action Network International.
“Compelling Action, Holding Polluters Accountable”
With the final text of COP28 failing to reflect the unwavering call for a full, fast, fair, and funded phase out of fossil fuels, as climate justice grounded in the science demands, the most climate-vulnerable communities will continue to turn to the courts amidst mounting loss and damage, aiming to hold the world’s biggest government and corporate climate polluters accountable.
“We are confronting the sobering reality of a planet in peril,” said Prime Minister of Antigua and Barbuda Gaston Browne, “a planet that these large polluters are literally burning to the ground.” Speaking at a COP28 High-Level Party Event hosted by the Fossil Fuel Nonproliferation Treaty Initiative on Dec. 2, he suggested that climate accountability and justice calls for legal action.
“If, as a consequence of all of our voluntary efforts, we are unable to protect that 1.5-degree threshold, if there’s going to be an overshoot, then perhaps the future discussion will be around legal action to hold large polluters accountable,” he said
Climate litigation is certainly not the only answer or avenue for accountability, and it does come with significant challenges and limitations. “There are many reasons why litigation shouldn’t be the place to address climate change,” Jennifer Rushlow, a dean and environmental law professor and faculty director of the Environmental Law Center at Vermont Law School, told me via phone. “But it feels like none of the other methods that are available to us are working, and litigation is the only strictly enforceable way of compelling action, holding polluters accountable. And so while it’s slow and expensive, the outcome is a harder, more binding outcome.”
“When politics breaks down,” CIEL’s Nikki Reisch said during Greenpeace’s December 6 COP28 press conference, “sometimes the law can break through.”
“There’s really no sign of this litigation stopping,” she added. “It’s clear the movement is growing and the ratchet of accountability is coming.”
