Abstract
This chapter aims at shedding a light on the pivotal role played by climate science within the ramping climate justice debate. By examining three different cases held at different latitudes, it wishes to explain how climate science has been successfully employed in climate litigation to establish State’s responsibility for more ambitious policies; to determine bans on carbon-intensive infrastructures; to establish patterns of liability for climate-related damages. In this regard, this contribution champions climate science as a fundamental stepping-stone towards judicial law-making amidst the climate crisis.
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Notes
- 1.
Relevant, specifying the level of ‘pre-industrial emissions’ aims to provide a baseline from which anthropogenic activity began influencing greenhouse gas (GHG) concentrations in the atmosphere. How the ‘pre-industrial level’ is interpreted, however, can vary. To date, 1850–1900 has been the preferred baseline by institutions including the IPCC. However, some studies have suggested a 1720–1800 baseline would be more appropriate because GHG concentrations have been increasing since industrialisation began around 1750. Others argue that baselines should be taken from natural climate model simulations, i.e. those that exclude anthropogenic forces.
- 2.
It is also worth noting that carbon budget calculations differ in terms of scope and range. For example, IEA’s carbon budget refers to budgets for the energy sector only—the largest single source of CO2 emissions through the burning of coal, oil and gas. In contrast, the IPCC’s budgets account for all anthropogenic sources of CO2, thus including, inter alia, budgets for heavy industries and land use, land use change and forestry (LULUCF).
- 3.
In sum, the calculations draw from companies or entities net fossil fuel production data from publicly available sources, as factored with each fuel’s carbon content, deduction for non-energy uses of produced fuels, and emission factors for each fuel, for each entity, and for every year for which production data have been found.
- 4.
Urgenda Foundation v. The Netherlands [2015] HAZA C/09/00456689 (June 24, 2015).
- 5.
Notably, this GHG reduction target is more ambitious than those agreed at the EU level, as disaggregated among Member States—including The Netherlands, which indeed amounts to 16% by 2020.
- 6.
In particular, where determining the scope of the duty of care of the State, the court has taken account of:
-
(i)
the nature and extent of the damage ensuing from climate change;
-
(ii)
the knowledge and foreseeability of this damage;
-
(iii)
the chance that hazardous climate change will occur;
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(iv)
the nature of the acts (or omissions) of the State;
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(v)
the onerousness of taking precautionary measures;
-
(vi)
the discretion of the State to execute its public duties, with due regard to the latest scientific science, the available (technical) options to address necessary security measures to, and the cost-benefit ratio of the same security measures.
-
(i)
- 7.
Urgenda Foundation v. The Netherlands [2018] HAZA C/09/456689 (October 9, 2018).
- 8.
For example, in the discussion of the risk of reaching “tipping points” with a temperature rise of between 1 and 2 °C, the court cited the IPCC AR5 Working Groups I, II and III Synthesis Reports (para. 44).
- 9.
Gloucester Resources Limited v. Minister for Planning [2019] NSWLEC 7.
- 10.
GG’s arguments fundamentally relied on the expert testimony of Emeritus Professor Will Steffen, an Earth System scientist at the Australian National University, Senior Fellow of the Stockholm Resilience Centre and Member of the Climate Council of Australia. Steffen’s testimony drew on both global and Australian publications, including reports from the Intergovernmental Panel on Climate Change, the Australian Bureau of Meteorology and the Commonwealth Scientific and Industrial Research Organisation (CSIRO), Australia’s premier scientific research organisation.
- 11.
The global 2011–2050 carbon budget estimation as presented in Court equalled 300 Gt C. The presented study also showed that about 780 Gt C would be emitted as CO2 were all of the world’s existing fossil fuel reserves burned—about 2.5 times greater than the allowable budget. Importantly, GG inferred from this data that to achieve the Paris Agreement targets implies not only currently operating mines and gas wells to be closed before their economic lifetime, but also that no approved and proposed fossil fuel projects, based on existing reserves, shall be implemented.
- 12.
Relevant, CJ Preston extensively relies on the doctrine in Urgenda v. The Netherlands District Court’s decision to reject this argument (paras. 521–524).
- 13.
Furthermore, CJ Preston noted that a particular fossil fuel development may itself be a sufficiently large source of GHG emissions such that refusal of the development “could be seen to make a meaningful contribution to remaining within the carbon budget and achieving the long term temperature goal” (para. 554).
- 14.
In particular, the claimant refers to the Inventario de Glaciares del Perú, Ministerio de Agricultura y Riego Autoridad Nacional del Agua, Unidad de Glaciología y Recursos Hídricos, Huaraz, July 2014, p. 23, point 7.1.3.1, according to which “Comparing the glacier surface area measured in the national inventory of the decade of the 1970s and the results of the current inventory, the Cordillera Blanca has lost approximately 27% (195,75 km2) of its total glacier area.”
- 15.
District Court Essen, Case No. 2 O 285/15 (December 16, 2016).
- 16.
Regional Court of Hamm, Case No. 2 O 285/15 (November 30, 2017).
- 17.
As no agreement could be reached between the parties as to the nominee joint experts, the Court appointed its own experts on September 2018, who will inspect the premises in Peru subject to the lawsuit. In particular, the claimants contended that the RWE’s suggested experts views were largely not based on IPCC findings.
- 18.
The relevance of the precautionary principle in climate change law is beyond debate (De Sadeleer 2016). The UNFCCC requires States to promote scientific research and requires the COP to periodically examine, inter alia, the scientific and technological knowledge. The Paris Agreement requires Parties to undertake rapid reductions in accordance with best available science (Hanekamp and Bergkamp 2016). The Treaty on the Functioning of the EU requires the EU to take the available scientific data into account when preparing environmental policy (art. 191).
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Fermeglia, M. (2020). Climate Science Before the Courts: Turning the Tide in Climate Change Litigation. In: Westra, L., Bosselmann, K., Fermeglia, M. (eds) Ecological Integrity in Science and Law. Springer, Cham. https://doi.org/10.1007/978-3-030-46259-8_3
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