And the Power of Testifying, Commenting, and Filing Suit
Part of the Climate Steps Politics page series.
With the climate crisis growing in severity day by day, court action and supporting court action to address the climate emergency is an emerging new strategy for many activists and climate action groups. Hundreds of cases have been filed and launched by various individuals, groups, and non-governmental organizations (NGOs) to assert and protect fundamental human rights and liberties. Two main aims of many cases include protecting communities that are suffering from the climate crisis and holding governments and corporations responsible for their role, or lack of one, in climate change. Some notable examples of climate action court cases in which individuals are involved either brought the case or made an impact through testimony (as witnesses) or commenting (see our page Testifying and Commenting for background) are given below, by reverse order of the date first filed suit.
Germany: Bundes-Klimaschutzgesetz – KSG, provisions of the Federal Climate Change Act of 12 December 2019
Several young people just won a major case! “Germany’s highest court ruled on [4/30/2021] that the country’s 2019 climate law unconstitutionally saddles young people with the burden of fighting climate change by “irreversibly offload[ing] major emission reductions burdens onto periods after 2030.”” In response, Germany’s finance minister said that they would propose new legislation to increase the effort between now and 2030 to fight climate change. One young woman, Sophie Backsen, 22, and her younger brothers, combined with other young activists from Friday’s from the Future and other organizations to file the suit.
Canada: La Rose et al. vs. Her Majesty the Queen (2019)
La Rose et al. vs. Her Majesty the Queen is a 2019 climate action litigation launched in Canada by fifteen plaintiffs ranging from 10 to 19 years old. The youth are suing the Canadian government under the claim that the government’s actions are violating Section 7 of the Canadian Charter of Rights and Freedoms, by failing to protect the liberty and security of citizens, as well as public resources. The case also alleges that Section 15 of the Charter regarding equality rights is being denied to youth in the future because of the Canadian government’s choices during the climate emergency. The lawsuit is backed by the David Suzuki Foundation and is currently ongoing.
Hermine Ricketts and Laurence Carroll vs.Village of Miami Shores, Florida, et al.,(2017) and then Florida Senate Bill 82 (2019)
In 2019, the Florida Senate passed a new bill which no longer allowed municipal governments to regulate greenery and plants, including vegetable gardens on residential properties. After a Miami Shores couple was told to remove their vegetable garden, they took the case to the Florida Supreme Court, where they lost. A few months later however, Florida state lawmakers considered the case and passed new legislation to protect those who chose to grow their own food at home. This case is an example of climate action through lower courts and, although the legal system did not uphold citizens’ rights against government legislation in this particular case, the impact of the two people taken action yielded media attention and the attention of the legislature and still resulted in change. https://www.flsenate.gov/Session/Bill/2019/00082.
United States of America: Juliana v. United States
Juliana v. United States was a climate action lawsuit launched by a group of twenty-one children under 18 within the United States. The lawsuit, backed by various non-profit organizations and entities, accused the U.S. federal government of infringing on the children’s constitutional rights to liberty and freedom by continuing to engage in or facilitate activities with greenhouse gas emissions. The case was brought before the U.S. District Court in Oregon in 2016, with the latest development being dismissal by the U.S. Supreme Court in 2020. Although dismissed, the media impact was huge globally.
United States: State of Washington v. Kenneth A. Ward (2016)
In 2016, Ken Ward, and a group known as the “Valve Turners” were charged with various crimes such as burglary and criminal sabotage, as well as shutting down the Kinder Morgan Trans Mountain tar sand pipeline. In a case against Ken Ward by the Washington State government, each of the Valve Turners presented a necessity defense in which they argued that their crimes were necessary to minimize greater harms: the climate crisis and threat of fossil fuels to the planet. The necessity defense was allowed in lower court, and when appealed by Washing Sate Court prosecution, the Washington Supreme Court denied review of the ruling, allowing Ken to present it. The ruling was a major victory for climate activists, and has potential to set a critical precedent for future climate litigation.
The Netherlands: Urgenda Foundation v. The Government of the Netherlands (2015)
An organization of over 900 Dutch citizens launched a lawsuit against the Government of the Netherlands to pressure them to do more to fight the growing climate crisis and to reduce overall greenhouse gas emissions in the country. Despite several appeals and dismissals, this climate action case was one of the very first of its kind, and it has set a precedent for many others, as mentioned earlier, introducing the legally new ideas of human rights into the climate crisis.
In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, (date filed?)
Considered to be the largest marine oil spill in history, the Deepwater Horizon spill began in April 2010 after an explosion on a Gulf of Mexico oil rig of that name. About five million barrels of oil were spilled into the Gulf, destroying marine life and coastal wildlife extensively, as well as incurring great damage to the fishing and tourism industries. The Deepwater Horizon oil spill immediately harmed millions of people in economic, environmental, and social spheres. A case against British Petroleum (BP), the owner of the well, was brought forward by the U.S. Justice Department, the states along the Gulf, individuals, and businesses (including fishermen, hotel operators, landowners, rental companies, restaurants and seafood processors) who were harmed significantly with the disaster. In 2014, a U.S. District Court judge that ruled BP was primarily responsible for the oil spill because of its gross negligence and reckless conduct, and BP paid an $20.8 billion fine in the US. While many people who were impacted testified against the negligence by BP that resulted in the disaster, one testimony that stood out was from the father of one of the 11 men who were killed, Keith Jones, and his passionate and moving testimony about how BP needs to pay more to the families than normal compensation for the lives lost; this testimony gained widespread public support.[i]
BP was required to pay $5.5 billion, plus interest, as a civil penalty under the U.S. Clean Water Act: $7.1 billion for natural resource damage; $1 billion for early restoration projects; up to $700 million for unknown injury and adaptive management; $350 million for natural resource damage assessment costs; $250 million as reimbursement for cost responding, loss of royalties, and resolving False Claims Act investigation; and up to $5.9 billion for state and local economic claims — totaling up to $20.8 billion. With the signing of the Resources and Ecosystems Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (RESTORY Act) in 2012, 80 percent of administrative and civil penalties was dedicated to ecological and economic recovery efforts in the Gulf, i.e., $5.3 billion out of the fine paid went into the Gulf Coast Ecosystem Restoration Trust Fund.
Summary of the Fine Payments
|Natural resource restoration/economic improvement efforts in five Gulf states||$1.86 billion|
|Protection and revitalization of the Gulf Coast||$1.6 billion|
|Planning and implementation of state projects and programs||$1.6 billion|
|Research to support sustainability of the Gulf ecosystem, and the fishing industry in the Gulf of Mexico||$133.3 million|
|Investment in Gulf institutions for science and technology advancements||$133.3 million|
The remaining $1.33 billion was allocated to the Oil Spill Liability Trust Fund for damage assessment and oil spill removal. These payments are scheduled over a 16-year span of time, and BP has not been allowed to take a tax deduction for any portion of the civil penalty. Further, BP paid about $6.2 billion to more than 220,000 individuals and business claimants, and by 2016 BP announced a final estimated cost for the oil spill was about $61.6 billion (pre-tax charge). [ii][iii][iv]
- [i] https://edition.cnn.com/2010/OPINION/06/16/jones.son.died.oil.rig/index.html
- [ii] https://www.noaa.gov/explainers/deepwater-horizon-oil-spill-settlements-where-money-went
- [iii] https://www.justice.gov/enrd/file/834511/download
- [iv] https://www.bp.com/content/dam/bp/business-sites/en/global/corporate/pdfs/investors/bp-second-quarter-2016-results-presentation-slides-and-script.pdf
Massachusetts v. The Environmental Protection Agency (2007)
The state of Massachusetts, along with eleven other states and several environmental advocacy organizations, petitioned the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gases like sulfur dioxide, nitrogen dioxide, methane, carbon monoxide and carbon dioxide due to the environmental damages and consequences the states were facing as a result of past failure to regulate tailpipe emissions from vehicles as an effort against climate change. The Clean Air Act (1963) states the need to regulate toxic emissions from mobile and stationary sources, as the anticipated effects of these gases endanger public health and welfare. However, the EPA argued that the Clean Air Act did not delegate the responsibility of greenhouse gas regulation upon them and hence it was neither their right nor responsibility to regulate these air pollutants; the agency further argued that they required research on the causes, effects, extents, and significance of climate change before they even consider taking on the responsibility of emission regulation. The states took the EPA to the U.S. Supreme Court, which ruled in their favor, declaring that the regulation of greenhouse gasses was a responsibility of the EPA and that the agency could remain inactive on the enforcement of the regulation only if it determines that the emissions do not contribute to climate change and endanger public health and welfare. Afterwards, the EPA did find that six greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. [i][ii][iii]
So how were public citizens involved? Joe Mendelson, an environmental lawyer working for a small public interest group, was responsible for starting this important fight in 1999 when he delivered a petition to the EPA highlighting the need of regulation of carbon dioxide as an air pollutant under the Clean Air Act. It was the public support that this case gathered that helped create a multi-state, multi-institutional form of pressure on the EPA to be more effective and accountable to the people in fighting climate change.
- [i] https://www.zpllp.com/17-top-controversial-lawsuits-brought-environmental-triumph/#point5
- [ii] https://www.1millionwomen.com.au/blog/4-kick-ass-environmental-lawsuits-changed-world/
- [iii] https://sustainablebrands.com/read/leadership/3-environmental-lawsuits-that-have-helped-society
Chevron v/s Ecuador (1993 – 2018)
In 1993, a class-action lawsuit was filed by local residents of Nueva Loja (Ecuador) against the then Lago-Agrio oil field-well operator Texaco (later acquired by Chevron Corporation in 2001) for dumping over 30 billion gallons of toxic waste and crude oil into the Amazon rainforest in the north-east region of Ecuador. Nearly 4400 square kilometers of the forest region were contaminated, and river bodies turned black, and there was a severe spike in cancer and birth defects among local residents. The lawsuit demanded the corporation clean up the area and provide for the care of the nearly 30 thousand inhabitants who were harmed by the environmental damage; thus, the plaintiffs demanded a $27 billion compensation for the inflicted harms. The 18-year legal battle within Ecuador against Chevron finally concluded in 2011 with the Ecuador court declaring that the corporation was guilty of extensive damage and pollution to the region and ordering Chevron to pay a compensation of $18 billion (although, later, the compensation was reduced to $9.5 billion).
Chevron, however, challenged the case on two grounds. First, they claimed that the case had already been settled in a 1998 legal agreement with the Ecuadorian government. Second, they claimed that the 2011 verdict was based on fraud and corruption. The Ecuadorian government had signed a settlement agreement in 1998 that released the company from further responsibility for the disaster; however, it is important to note that (1) the corporation was released only from further responsibility, and (2) the agreement clearly noted that third-party claims (like those brought up by communities harmed by the Amazon rainforest destruction) were not included in the settlement, i.e., their claims for compensation were valid in the court. It also emerged that despite said claims of environmental restoration efforts by the corporation in the Amazon, six different tests revealed that the company tried to conceal contamination by piling dirt on top of the polluted oil pits.
Chevron then hired a team comprised of former US trade representatives to lobby the U.S G.H.W. Bush and B. Obama administrations to pressure Ecuador to make a deal via a proposed threat to cancel bilateral trade benefits for Ecuador – to no avail. If Chevron had succeeded in passing the proposal to cancel benefits for Ecuador, then an estimated 350,000 jobs would have been lost.[i]
Chevron also hired several public relations firms and law firms to advocate on its behalf and to launch countersuits against the legal team of the Ecuadorian indigenous residents who were harmed. Even while the residents’ case was in court, the company sued Ecuador in 2009 in the Permanent Court of Arbitration (CPA) in The Hague claiming that the country had violated the 1993 Bilateral Investment Treaty between Ecuador and the United States. On September 7, 2018, the Permanent Court of Arbitration in The Hague unanimously declared the ruling in favor of the Chevron and Texaco Petroleum Company and concluded that the judgment given in Ecuador court was fraudulent, corrupt, and “should not be recognized or enforced by the courts of other States,” as well as that the Ecuadorian government should pay the company a multi-million dollar compensation. [ii][iii][iv][v][vi][vii] Still as of today, Chevron has neither paid compensation to the inhabitants of the region it damaged nor cleaned up the land, which has resulted in the oil wastes continuing to poison the rainforest.
Even though the final decision ended in favor of Chevron, this case shows us the power of testimonies to influence laws and regulations. The global community united to fight against Chevron and to hold them accountable for causing severe damage and personal injury to the inhabitants of the Lago Agrio area. Despite the long struggle, this case invoked in people the need to hold corporations accountable for the impact they can cause citizens worldwide.[viii]
- [i] https://chevroninecuador.org/news-and-multimedia/2009/0701-chevron-rebuffed-on-ecuador-trade-benefits-by-obama-administration
- [ii] https://www.opendemocracy.net/en/democraciaabierta/chevron-vs-ecuador-international-arbitration-and-corporate-impunity/
- [iii] https://waronwant.org/sites/default/files/ISDSFiles_Chevron_April2019.pdf
- [iv] https://www.thenation.com/article/archive/ecuadors-battle-environmental-justice-against-chevron/
- [v] https://theintercept.com/2020/01/29/chevron-ecuador-lawsuit-steven-donziger/
- [vi] https://www.nytimes.com/2009/05/15/business/global/15chevron.html?pagewanted=all
- [vii] https://www.opendemocracy.net/en/democraciaabierta/chevron-vs-ecuador-international-arbitration-and-corporate-impunity/
- [viii] https://amazonwatch.org/news/2019/0327-chevron-vs-ecuador-international-arbitration-and-corporate-impunity
Anne Anderson et al. v. W.R. Grace & Co. et al (also known as the Woburn Water Case); 1982
This lawsuit was filed in May, 1982, by Jan Richard Schlichtmann, a lawyer specialized in medical malpractice cases, on behalf of a group of eight families against W.R. Grace & Co. and Beatrice Foods Inc., charging the contamination of two municipal supply wells in Woburn, Massachusetts. It was filed after doctors and parents noticed an increase in cases of leukemia in children and alleged that the toxic chemicals found in water samples from their municipal wells were responsible for the severe health effects. They suspected that W.R. Grace & Co., a chemical business that produced specialty chemicals and materials, and Beatrice Foods, a food processing business, contaminated groundwater after the improper disposal of trichloroethylene (TCE), perchloroethylene (PCE), and other industrial solvents at their facilities; this contaminated underground aquifer supplied the drinking water to the city. After a thorough investigation, which involved about 79 days of mostly technical testimony from expert witnesses hired by the parties involved, W.R. Grace was found liable for inflicting personal injury by contaminating the water, although W.R Grace reached a settlement of $8 million before the official ruling was made. Beatrice Foods was acquitted, although later a report by the EPA found Beatrice Foods also responsible for the contamination.[i]
This case was strengthened by the testimony of expert witnesses such as John Drobinski, a geologist who conducted tests on the Beatrice property and who testified that he found several toxins in the soil and groundwater of the property; he further claimed that he believed the area become contaminated during the 1960s and 1970s due to surface dumping. A layman witness, Walter Day, testified that while growing up in the area he observed the workers at the Beatrice property dump a powder into a drainage ditch regularly, though Beatrice officials claimed it was harmless buffing dust. John Camerlingo, another witness who worked at the Whitney Barrel Company located near the Beatrice property, said that during the late 1960s he used TCE to clean the barrels; however, he also said that the chemical was always used up and never disposed of.
This case was significantly impacted by the testimonies of the witnesses, where testimonies from layman witnesses strengthened the case of the parents, while those from a particular expert witness is said to have damaged the case against Beatrice. [ii]
- [i] https://serc.carleton.edu/woburn/Case_summary.html
- [ii] https://dankennedy.net/woburn-files/death-and-justice-environmental-tragedy-and-the-limits-of-science/
For more information on how you can be involved in litigation to change things, check out the other Climate Steps Politics Pages:
This page is a compilation of work by Climate Steps 2020 interns Ms. Azka Naz and Anshika (2020). Azka is a sophomore studying Public Affairs and Policy Management at Carleton University. She is specializing in international policy studies, with a focus on international relations and conflict. She is interested in defense, development, public health, pharmaceuticals, and international law. She believes that the climate emergency is interconnected with all of these areas, and is a growing and very relevant issue to the overall global policy sphere. Anshika is also a sophomore at Carleton University….