Many climate liability cases rely on research called the Carbon Majors report to link carbon pollution to particular emitters. That research, spearheaded by Richard Heede of the Climate Accountability Institute, first revealed in 2013 that the majority of carbon pollution could be traced to 100 companies, the Carbon Majors. It was updated in 2017 with data that showed 71 percent of global warming gases were produced by the Carbon Majors, and pinpointed 25 of them as responsible for more than half of all greenhouse gases emitted from 1988-2015.
The possibility of holding companies legally responsible for human rights violations was the latest aspect discussed in the Philippines Commission for Human Rights’ investigation into the fossil fuel industry’s role in climate change.
At the latest evidence session at the London School of Economics this week, the commission heard more personal testimony from survivors of extreme weather disasters and experts in climate science, attribution, litigation and risk. But it also delved into whether corporations have responsibilities for upholding human rights, with several legal experts explaining how international and domestic laws may determine that they do.
The hearing in London followed previous ones in New York and Manila and, as with the earlier hearings, none of the 47 companies being investigated testified or participated. The companies that responded to the inquiry when it was launched in 2015 challenged the commission’s ability to investigate them because they don’t operate directly in the Philippines and argued that climate change isn’t a human rights issue under the law.
Environmental lawyer and academic Linda Siegele explained how the link between human rights and climate change had evolved internationally, from no mention at all in the original UN Framework Convention on Climate Change in 1992, to an explicit acknowledgment in the 2016 Paris Climate Agreement that parties should “respect, promote and consider their human rights obligations when taking action to address climate change.”
Dr. Roda Verheyen, a lawyer involved in several high-profile climate litigation suits, told the commission that human rights are normally only applicable between governments and individuals, and do not generally play a role between private entities unless courts are interpreting contracts, or nuisance or tort provisions in statutes and common law rules.
She said climate change is still largely regulated as a environmental issue but the human rights aspect is an “emerging” area. Verheyen said many of her cases involve human rights claims, including Lliuya v. RWE, in which Verheyen represents a Peruvian farmer suing a large German utility for climate impacts in his mountain village in Peru.
The Inter-American Court of Human Rights published an advisory opinion earlier this year that equates environmental protection with human rights. The UN’s special rapporteur for human rights and the environment, David Boyd, recently argued to the UN general assembly that the international body should recognize a healthy climate as a human right.
Verheyen also pointed to the People’s Climate Case, in which 10 families are challenging the European Union over its 2030 climate target, which makes human rights claims under the EU Charter of Fundamental Rights. A suit she recently helped three families bring against the German government also argues that not meeting the country’s 2020 climate target infringes on the plaintiffs’ human rights to property, work and health. “It should be pretty clear around the world that we’re dealing with a human rights issue,” she said.
Verheyen concluded the Philippines commission’s attempt to investigate the responsibility of fossil fuel companies for human rights violations resulting from the impacts of climate change “is novel and could help to shape law internationally.”
Another expert witness argued that both states and enterprises have “discernible legal obligations to reduce their emissions.” Dr. Jaap Spier, professor of law and global challenges at the University of Amsterdam, worked with colleagues to publish the Principles on Climate Obligations of Enterprises, and said many laws hold that companies have to comply with human rights law, and that these are often endorsed by companies themselves so “they can’t be surprised when people say they’re affected.”
Spier said the fossil fuel companies do not bear all the responsibility for global warming. “It would mean that all others could argue they don’t have obligations,” he said, emphasizing that governments must still lead in combating climate change.
There is also a moral case that fossil fuel companies should act on climate change, according to Dr. Henry Shue, professor emeritus of politics and international relations and senior research fellow at the University of Oxford’s Centre for International Studies. He testified that because climate stability is essential for civilized society, including productive agriculture and safe housing, it is “quite clear that the harms done by climate change violate human rights.”
He said that everyone has an ethical responsibility to change their behaviour if they are engaging in harm. “One important feature of risk assessment is communicating the risks involved so that other people can act on the information,” Shue said. “If you’re not stating the risk of your behavior you’re not taking fairly your obligation not to harm people. And if you’re not communicating those risks you’re not allowing other people the opportunity to protect themselves.”
The commissioners said they were disappointed that the 47 companies that are the subject of the inquiry declined to attend in an official capacity, but Commissioner Karen Gomez-Dumpit told Climate Liability News that “I think they’re listening.”
“We have mentioned cases that single out particular cases of harm done to a particular community,” she said. “But this inquiry echoes the message of the IPCC that there has to be collective and concerted action so that we can stop climate change. That’s the message that we can convey in our non-adversarial process of inquiry.”
As well as addressing the impact of climate change in the Philippines, Commissioner Roberto Eugenio Cadiz said he hoped the large volume of expert information and data produced by the inquiry could be used by others to bring cases around the world and to put pressure on the Carbon Majors to transition away from fossil fuels.
The final hearing was in Manila on Dec. 11-12.
Cutting-Edge CO2 Tracking Technology Could Boost Climate Liability Claims
By Marco Poggio
Artificial intelligence coupled with satellite imagery could soon deliver plaintiffs in climate litigation real-time data on carbon dioxide emissions from power plants around the world. It potentially opens a new front in holding the energy industry accountable for the impacts of those emissions on the climate.
WattTime, an Oakland-based nonprofit, developed a system that will produce actual carbon dioxide measurements by combining image feeds from satellites in low Earth orbit. The end result will be a massive trove of data, which will then be shared with the public.
Supporters of the project say the data will provide new ammunition to plaintiffs in climate liability cases by showing how much of global warming can be attributed to particular sources.
“This will have massive far-reaching implications in the evidence to back some of those claims, or back some of those potential plaintiffs in court, if it comes to that,” Chiel Borenstein, the director of operations at WattTime, told Climate Liability News.
“You’ll have a central data set that’s reliable and that’s as empirical and precise as possible, and is readily available.”
WattTime officials said some of the data may be available free of charge to the public, but it may charge for deeper access.
Shaun Goho, deputy director of the Emmett Environmental Law and Policy Clinic at Harvard Law School said the technology could make it easier for plaintiffs to establish that power plants are violating their permit limits. It would depend on whether judges accept its results as reliable, he said.
“I am sure that defendants would contest it at first, but if courts start to accept the data from this technology, then it could lighten the information-gathering burden on plaintiffs,” Goho said.
A more accurate and independent monitoring system could help develop better regulations of those emissions, as well as help enforce compliance, said
Michael Wara, a lawyer and the director of the Woods Institute for the Environment at Stanford University.
“We need to come up with new tools, new approaches on carbon,” Wara said. “An improving measurement is the beginning of progress. This is the direction we need to be taking and it’s very exciting to see it happening.”
Wara said traditional carbon emissions monitoring, such as sensors installed in smokestacks of power plants, are prone to tampering. Satellite imaging will help overcome that problem. It will also create an objective measuring system that applies uniformly across the world, transcending individual countries’ interests, and making it more difficult to cheat.
“This is a way to have data that everyone believes, no matter what country they’re from,” Wara said.
Currently, climate liability cases rely largely on research called the Carbon Majors report to link carbon pollution to particular emitters. That research, spearheaded by Richard Heede of the Climate Accountability Institute, first revealed in 2013 that the majority of carbon pollution could be traced to 100 companies, the Carbon Majors. It was updated in 2017 with data that showed 71 percent of global warming gases were produced by the Carbon Majors, and pinpointed 25 of them as responsible for more than half of all greenhouse gases emitted from 1988-2015.
With that data already in hand, Katrina Fischer Kuh, a professor of environmental law at Pace Law School, said the new technology isn’t likely to break new ground in litigation, but will allow more accurate monitoring of pollutants to help enforce environmental laws.
“We should be excited about it. I don’t think we necessarily need it for the climate nuisance litigations, but in terms of our ability to regulate and control greenhouse gas emissions and craft effective public policy to do that, it’s extraordinarily helpful,” Kuh said.
Kuh said satellite imagery will prove more helpful in legal cases centered on pollutants other than CO2—methane, for example, which is harder to detect—and could help litigants meet the burden of proof with more precise data on individual emitters. But she said the real legal challenge is the cause-effect connection between emissions and harm done, not on the amount of emissions.
“At least right now, that hasn’t been the aspect of causation that has really been troubling,” she said. “The defendants aren’t disputing that they are responsible for the emissions of a lot of the greenhouse gases.”
The new technology can also provide a boost to measuring compliance with the Paris Climate Agreement, said Sean Hecht, a professor at UCLA School of Law and the co-executive director of the Emmett Institute on Climate Change and the Environment. He said WattTime’s technological capabilities will help in countries that produce a large quantity of CO2 emissions but have weak regulations and questionable monitoring.
“The technology seems interesting. Assuming that it’s reliable, the main impact it’s going to have probably isn’t going to be in liability but on the ability to verify emissions and compliance for regulatory purposes, which is a big deal,” Hecht said.
The data collected and shared by WattTime will be particularly useful in monitoring pollutants other than greenhouse gases, he said.
“Anything that helps people to understand what the nature sources of emissions are helps us figure out better how to manage pollution,” Hecht said. “To me, that’s what the promise of that kind of technology is.”
Satellite imaging has been used in recent years to track pollutants and the field is evolving.
Just last week, NASA deployed a new instrument, the Orbiting Carbon Observatory 3, which will measure carbon dioxide in the atmosphere while orbiting the Earth connected to the International Space Station.
The European Space Agency will decide in November the timeframe for launching a CO2 monitoring satellite, according to a spokesman for Copernicus, the European Earth-observing satellite program.
The World Resources Institute (WRI), a global research nonprofit promoting sustainability initiatives including the Greenhouse Gas Protocol, relies on a vast number of satellites that currently track pollutants.
Earlier this month, WattTime received a $1.7 million grant from Google as part of the Google Artificial Intelligence Impact Challenge to work with WRI and Carbon Tracker, a London-based nonprofit, to harness existing satellite imagery and infrared technology to measure emissions from all power plants nearly in real time.
WRI already has an open-source database of nitrogen dioxide emitted by power plants around the world using satellite imagery and aims to do the same with CO2.
“We are in the process of estimating CO2 on an annual level and publishing it as part of the database,” said Johannes Friedrich, a senior associate at WRI. “This information combined with machine learning algorithms WattTime would like to use aim to fill gaps in CO2 emissions around the globe.”
In recent days, the level of CO2 in the atmosphere exceeded 415 parts per million, the highest in recorded history. Five of the warmest years on record occurred in the past six years, 20 of the warmest have happened in the past 22 and 2019 is on track to be hotter than last year, according to the World Meteorological Organization. More accurate tracking of emissions is clearly a starting point in reducing them.
WattTime will use high-resolution feeds from government-owned satellite networks—Landsat in the U.S. and Copernicus, its European Union counterpart—but also some owned by the private companies, such as DigitalGlobe, which currently sells its imaging products to various industries, including operators of oil and gas pipelines.
Michael Brauer, a professor at the School of Population and Public Health at the University of British Columbia who contributed to the creation of the State of Global Air report, said the technology WattTime is developing is promising, but noted that the software would only track pollution from power plants, which account for a fraction of global emissions.
“Pollutants emissions from power plants, we know that pretty well,” Brauer said, “I don’t think this is really our biggest need from the data side.”
While CO2 emissions from U.S. power plants are tracked by the Environmental Protection Agency, other countries have fewer regulations and transparency. WattTime will prove crucial in bridging that divide, Borenstein said.
“This has massive implications in terms of access, in terms of transparency, and accountability from the perspective of holding organizations and the biggest emitters accountable for their actions,” he said.
In the first week after its initiative was announced, WattTime said it received pledges of varying levels of support from 85 stakeholders, including non-governmental organizations, nonprofits and satellite-owning companies.
“It’s an exciting time for our organization,” Borenstein said. “It’s an exciting time for the world.”