Can we litigate to net zero?
Newsletter #29
Plaintiff Dennis Tipakalippa who successfully challenged Australia’s Santos in its quest to get permission to drill off the Tiwi Islands for the Barossa Gas Project. Credit: Rebecca Parker
This month’s newsletter focuses on a series of successful climate law suits in the past month, with a strong emphasis on connecting human rights and environmental concerns, and asks whether this fast-growing space holds promise as a driver of faster climate action.
Please take a moment to share this newsletter with a friend or colleague, it’s the best way to show your support for the work that goes into it.
Highlights from the Sustainability Agenda
Research suggests that these cases, while making eye-popping media headlines, are not (yet) driving reductions in global emissions.
A report on global climate litigation trends published last year by the Centre for Climate Change Economics and Policy (CCCEP) (LSE and the University of Leeds) documents the vibrancy and diversity of the space.
Trends to watch for in the future are:
increasing range of claims and defendants
more litigation will be brought against financial market actors
continued increase of litigation against governments and major emitters that fail to adopt serious long-term strategies underpinned by concrete plans and short-term emissions reductions targets
entities that act inconsistently with committments and targets, or that mislead the public about their products and actions will face increased volumes of litigation
Last month saw the successful challenge to Australian oil and gas company Santos which was seeking a permit to drill in the seas north of the Tiwi Islands for the Barossa gas project. Tiwi traditional owner Dennis Tipakalippa challenged the permit, given the huge risk it poses to sea life and Sea Country that holds spiritual significance for his people and the failure to consult them.
Lawyers for Mr Tipakalippa said Santos had not consulted with the Munupi clan and gave the Tiwi Land Council (TLC) insufficient information about the project. Santos has suspended drilling activities, and will appeal the decision next month.
👉 This case sets a new standard on the depth of consultation that companies are required to conduct with Indigenous Traditional Owners before they gain approval for offshore drilling.
Also in September, the UN ruled that the Australian government violated the human rights of people living on 4 islands in the Torres Strait, and ordered it to pay for harm caused. The UN Human Rights Committee ruled that the government did violate islanders’ rights in failing to implement adaptation measures to protect their homes, private lives and families, as well as their ability to maintain their traditional way of life. For example, their land is under threat from rising sea levels, and their culture is at risk because salt water is killing traditional food sources such as coconuts, and storm surges have washed away culturally significant sites including graveyards.
A new report called "Law in the Emerging Bio Age" from the Law Society in the U.K. makes the case that granting legal rights and protections to non-human entities such as animals, trees and rivers is essential if countries are to tackle climate change and biodiversity loss.
Co-author Dr Trish O’Flynn told the Guardian
An example of a right might be evolutionary development, where a species and individual … is allowed to reach its full cognitive, emotional, social potential.
Lawyers and NGOs join forces ahead of COP27
Because climate litigation is a relatively new field, that does not repose on a substantive body of legal authority, one of its strengths is the ability to leverage new connections and associations. Here, lawyers + NGOs advocating together ahead of COP27 is a potent new example of such upside.
Pressure mounts on France’s oil and gas giant Total
Energy sector workers in France have been on strike for the past 2 weeks over wages and the rising cost of living, with the unions at Total calling for a 10 % pay rise on the back of a windfall from rising commodities prices. One in three petrol stations in the country is struggling with supplies, and unions have called for a strike among all train and Paris public transport services on Tuesday.
Total is also facing challenges over its plan to build a pipeline linking Uganda to the Indian Ocean port of Tanga in Tanzania. The EU parliament wants to delay the $5 billion project by one year to address environmental and human rights concerns.
Part of the case against Total (and its Uganda subsidiary) concerns the non-respect of the so-called “devoir de vigilance”, threats to human rights, health, the environment and land rights. Devoir de vigiliance dates from 2017, and it emphasizes the respect of human rights and the environment by making multinational corporations responsible for the practices of their subcontractors and suppliers.
A Paris court was supposed to hold a hearing on the case brought in 2019 by six NGOs this week, but it was postponed until December. Because this is a very new type of case, it has taken three years to decide which court has the jurisdiction to hold the hearing.
Comment: As we enter the cycle of important environmental conferences - there are 4 COPs happening in November and December on climate, biodiversity, wetlands and endangered species - watch for how these legally-driven narratives of empowerment and agency can propel new storylines that go beyond the classic North-South confrontations dominated by media reporting at COPs.
From and Beyond the podcast
More and more scientists, despairing of the slow pace of climate action, are turning to civil disobedience. Most recently, our guest from Episode 20, Julia Steinberger, IPCC author and degrowth expert at the University of Lausanne, was arrested after gluing herself along with other protestors to a motorway near Bern to protest the federal government’s inaction on thermic renovation.
🎙️ In case you missed this episode, you can tune in here to learn all about the debate on Degrowth vs Green Growth.
Next month’s newsletter will go out a bit later than usual, after the conclusion of COP27 on November 18. That meeting will be a staging ground for contestation around adaptation, reparations and loss and damage and provides a timely opportunity to make an ask I’ve been thinking about for a while. I’d like to devote a section in the November newsletter to sources of information “beyond the Western media bubble”.
So please drop me an email with your favourite “Beyond the West” sources - podcasts, newsletters and so on, or put them in the comments below! I will include the suggestions in the next edition, and I intend this to be an ongoing effort.
Thank you for reading, and see you in November.