Climate change litigation in Philippines a game-changer?
Human rights agency's petition targets 50 'Carbon Majors' and tries to draw a link to greenhouse gas emissions and disasters like Typhoon Haiyan
A human rights agency in the Philippines has held its first public hearings in a test case of corporate responsibility for climate change that could open the door to a flood of litigation in Asia — or become a damp squib.
Greenpeace Southeast Asia, Philippine Rural Reconstruction Movement and a coalition of other interest groups are targeting 50 “Carbon Majors” that they say may have contributed to global emissions of greenhouse gases. The plaintiffs are trying to draw a link with natural disasters like Typhoon Haiyan in 2013, which killed 6,300 in the Philippines alone.
Named in the petition are companies like Chevron of the US, British Petroleum (UK), BHP-Billiton (Australia) and Royal Dutch Shell (the Netherlands), as well as Asian and Middle East firms Saudi Aramco, Coal India, National Iranian Oil Company, PetroChina and Kuwait Petroleum.
After causing a stir in December by agreeing to investigate the petition, the Philippines Commission on Human Rights will conduct a series of fact-finding missions this year in New York, London and the Philippines to determine whether multinational companies were responsible for contributing to global emissions that amount to human rights violations.
It has attracted supporting submissions from influential institutions like the Sabin Center for Climate Change Law at Columbia Law School and the Climate Accountability Institute, as well as the Union of Concerned Scientists. The commission aims to release its resolution by the first quarter of 2019.
Big Tobacco case
Some are drawing a parallel between the petition and similar attempts in the 1990s to hold tobacco companies responsible for healthcare costs due to smoking: in one settlement Big Tobacco agreed to pay a minimum of $206 billion over 25 years to 52 states and other jurisdictions in the US.
But while tobacco mostly harms individuals, climate change affects entire communities and its impacts are random, making it harder to prove causal links with those who are supposedly responsible. Vic Sher, a partner at law firm Sher Edling LLP, said plaintiffs now had science on their side.
“All of these earlier cases didn’t have the benefit of current attribution science, in terms of drawing the link between emissions and impacts, and emissions during a particular period, and attribution to particular corporations,” Sher said. “We have all that information now.”
Much of this evidence comes from an eight-year study by researcher Richard Heede that found 90 entities producing crude oil, natural gas, coal and cement were responsible for 63% of carbon dioxide and methane emitted between 1751 and 2010. Of these, 56 produced gas and 37 coal.
In 2015 the Union of Concerned Scientists released a dossier that suggests fossil fuel producers knew decades ago that their products were “harmful to people and the planet but still chose to actively deceive the public.” Far from altering their actions, the corporations “developed or participated in campaigns to deliberately sow confusion and block [mitigation] policies.”
Exxon tried to shut down debate
A separate investigation by InsideClimate News revealed that Exxon was researching the effects of emissions on climate change as early as 1977.
“In the first place, there is general scientific agreement that the most likely manner in which mankind is influencing the global climate is through carbon dioxide release from the burning of fossil fuels,” senior scientist James Black told Exxon management committee in that year.
Exxon’s efforts to shut down any debate on the issue reportedly included successfully lobbying against the US signing the 1998 Kyoto Treaty on gas emissions. It also convinced China and India to stay outside the accord.
The Philippines case will not seek to establish direct blame, but whether the actions of Carbon Majors breached Filipinos’ human rights for “life, health, food, water, sanitation, adequate housing and self-determination.”
Most of the companies are likely to boycott the hearings; they argue that the commission, whose mandate is limited to civil and political rights of the “marginalized and vulnerable,” has no jurisdiction to hear the petition.
At the very least, the inquiry should raise awareness of the legal perils of governments failing to enact safeguards against climate change impacts, as the issue is not going to go away. So far there have been more than 100 climate change lawsuits in the Asia-Pacific region, according to United Nations data.
Australia has accounted for 80 of the actions – it is second only to the US (654 cases) on a global basis – and New Zealand 16. The Philippines, India and Pakistan have each had two cases and there was one in Micronesia.
Most haven’t succeeded due to gaps in domestic laws, but some, such as unlikely environmental champion Ashgar Leghari, have left their mark.
Leghari, a farmer in Pakistan, sued the national and regional governments in 2015, saying their failures in implementing the nation’s two key climate change frameworks “offend the fundamental rights of the citizens.” He sought remedial measures to cope with “disruptive climatic patterns.”
The court agreed and directed the government to get its act together. In response, 734 “action points” were identified, with 232 deserving priority.