Climate Change Litigation - Interesting and Novel Claims

Closing arguments finished Thursday in The People of New York v. ExxonMobil. ExxonMobil was brought to trial in a climate change lawsuit that focused on what it disclosed to investors about the true cost of carbon emissions and climate change to its potential oil and gas developments. It is accused of keeping two sets of numbers - one that it disclosed to investors making future developments appear more profitable while keeping a second set of numbers internally that did not paint such a rosy picture of the costs of climate change to its underlying business. A decision is expected in about a month. It is only the second climate change case to ever go to trial in the United States. What is the status of other interesting climate change cases, either past or ongoing, around the world?

An excellent place to start is the U.S. Climate Change Litigation database. The database is a joint project of the Sabin Center for Climate Change Law at Columbia Law School and Arnold & Porter. It tracks developments in litigation and administrative proceedings related to climate change in both the US and internationally. The site allows you to sort through cases according to parameters such as government, non-government, human rights cases, emissions, etc. Cases are generally grouped into cases against governments (claims are generally regarding public trust type arguments) and cases against private corporations (claims are generally based in negligence, fraud and other torts). 

Here are a few interesting and novel cases illustrating the breadth of the arguments claimants are willing to make surrounding climate change:

Grainger PLC and Others v. Nicholson [2010] ICR 360: A belief in climate change was found to be a protected ground under the Employment Equality (Religion or Belief) Regulations 2003. In this case, Nicholson filed an employment discrimination complaint on the grounds that he was fired for his belief in catastrophic climate change. This belief, he argued, was covered under the regulations because it impacted all aspects of his life including how he ate, travelled and worked. The Employment Tribunal sided with Nicholson and the employer appealed. The employer lost on appeal where it was affirmed that just because a belief is based on science or politics, does not mean it cannot be protected like a religious belief.

Mataatua District Maori Council v. New Zealand: The claimants filed a claim in the Waitangi Tribunal, the forum for treaty disputes between the Maori and the government of New Zealand, alleging New Zealand breached its obligations to the Maori by failing to adequately address climate change. The Maori allege that New Zealand failed to implement appropriate policies to address climate change and therefore breached its treaty obligations. Among various relief the Maori is seeking, is a recommendation that the government adopt policies that facilitate adaptation in ways specific to locations and resources relied on by the Maori. 

The Waitangi Treaty specifically indicates that the New Zealand government is responsible for the “active protection” of natural resources on behalf of the Maori. The case is currently undecided.

Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment, [2015] NZSC 107: A citizen from Kiribati, a sovereign state in the Pacific Ocean, argued that climate change impacts on her country of Kiribati, including rising ocean levels and environmental impacts, were forcing people from the country. As a result, the citizen claimed refugee status in New Zealand. 

The New Zealand High Court concluded that she did not qualify for refugee status. The High Court found that the impacts of climate change on Kiribati did not qualify the appellant for refugee status because she did not qualify under the 1951 United Nations Convention relating to the Status of Refugees. The Court was also concerned about the floodgate impact such a decision would have it the claim was affirmed. The citizen also lost on appeal however the Court of Appeals did not rule out climate change creating a route to refugee status in the future. 

While climate change litigation is increasingly popular in Europe, New Zealand and Australia, Canada is currently less litigious in this area. That will likely change moving forward; case in point is the recent La Rose v. Her Majesty the Queen filed this past October 2019 in Federal Court. Fifteen children and youth have filed a suit alleging violation of Charter rights for them as well as future children. They argue they will bear the brunt of climate change given their age and vulnerability. The political nature of the claims may mean they are not properly before a Court but the resolution will be anxiously awaited as a barometer for future claims (see also Environnement Jeunesse v. Government of Canada).

Climate change litigation is providing the grounds for a number of novel and unique claims. Each individual has a different interpretation on climate change impacts and are using those interpretations to fuel interesting climate change lawsuits. This also means corporations and governments need to review their risks including current disclosure of potential climate change impacts to operation. These disclosures could be used in future climate change litigation against them.

**Blackacre Law is available for future research and content development in this and all other areas of the law.