Consultant Dan
20 April 2010
Climate litigation is on the agenda in 2010
Last year I provoked some ‘spririted’ comments on The Punch with an article where I proposed that the coal industry will one day face court to answer the case for crimes against the climate. (That original article is included below.)
Over the past year there has been increased interest in climate law internationally. This has been generally focused on legislation.
For example, a global public-benefit legal outfit called ClientEarth started to work in Australia in August 2009 in order to advise Senators during the negotiations over Prime Minister Kevin Rudd’s climate laws.
ClientEarth’s David Holyoake wrote a two part advice (Part 1 Part 2 ) ‘Australian Carbon Pollution Reduction Scheme Legislation – International Comparative Analysis’. Holyoake has worked from ClientEarth’s office in Brussels, which lobbies the EU on climate law.
The mainstream climate law conversation is now broadening to include litigation alongside legislation.
In February 2010 I attended the launch of the Climate Change & Environmental Law Panel of the Victorian Bar.
The Panel was launched by the Hon. Justice Kevin Bell, of the Supreme Court of Victoria (Victorian Civil and Administrative Tribunal section). There were several Senior Counsel and Judges present, along with more than thirty junior counsel and solicitors. You can listen to the Panel’s Jane Treleaven and Adrian Finanzio discussing it on ABC’s AM. You can read the Panel’s guidlines.
I believe that the case for the importance of climate law is simple. Global warming changes everything and so the law has to catch up.
New principles, norms and precedents are needed to regulate both greenhouse emissions (or other actions that change the climate) and the justice impacts of cutting emissions and the impacts which are already set in train.
Put coal kings in the dock for their crimes
Have you ever wondered why it is that nobody is going to jail for causing climate change?
You or I can fined $375 for “aggravated littering” (such as dropping a cigarette butt near a petrol station), but you can get away with sea level rise, drought, bushfires and global havoc without so much as losing a demerit point on your driver’s licence.
Like these mob bosses, coal kings could be led away in unflattering pants.Like these mob bosses, coal kings could be led away in unflattering pants.
Australians have felt this frustration, as we watched our legal system powerless to stop the expansion of Japan’s so-called “scientific” whaling programme. It is not as if there is no precedent for punishing big polluters. Early this year BP was forced to pay almost US$180 million for pollution violations at its Texas City Refinery. Exxon was forced to cough up US$1 billion over the 1989 Valdez oil spill.
Australia’s coal industry has had to concede that coal causes climate change and that climate change causes economic damage. I predict that it will not be much longer before it is in the dock for crimes against our collective climate.
The coal kings will initially refuse to be dragged into court at all. They will mount the ‘blame game’ defence; we all use fossil fuels, so we are all responsible and if we are all responsible, then nobody is guilty.
The industry will give itself a positive character reference, by referring to the billions of dollars they promise to invest in so-called “clean coal”.
But if indications in the UK are anything to go by, these rhetorical strategies will only last for a few short years. Last month Stephen Hockman QC, former Chairman of the Bar Association, held the first public meeting of a new campaign, The Coalition for an International Court for the Environment.
Hockman makes the case that the international community has the duty to prosecute crimes that damage the environment, just as it prosecutes acts of war and ethnic cleansing.
The best known precedent of international legal action are the war crimes trials held after World War Two, in Nuremberg and Tokyo.
The Nuremberg and Tokyo trials found military leaders from Germany and Japan guilty of crimes, even though they were technically innocent within the laws of both those countries at the time they were committed.
This is the power of an international court, it is able to take a properly global, humanistic perspective.
According to Hockman’s Coalition, the ICE requires far-reaching powers. For example, in order to be unhampered by national political interests, it would needs its own independent staff, who would be able to initiate investigations.
According to the initial proposal documents for an ICE, the Court would be able to take action in respect of damage, even if occurring in a non-signatory nation.
To understand the implications of these two powers – independence and extra-territoriality – imagine a hypothetical “Tuvalu Trial”.
It is 2012. The international community is not resigned to waiting around, as the saying goes, until the seas rise and the shooting starts.
Australia’s Labor Government ratifies the ICE along with most countries in the world. China does not ratify the ICE.
An Australian coal company, “Convenient Coal” continues supply coal to China, safe in the assumption that it has a social licence to do so.
Meanwhile, the ICE Prosecutor decides enough is enough and brings Convenient Coal to court, over the damage that rising sea levels will do to Tuvalu.
The Australian Coal Association and Resources Minister Martin Ferguson mount a spirited defence along with Convenient Coal. They resort to a variant of the “Dealer’s Defence”; that the act of causing climate chaos is committed by the Chinese, who burn the coal, not the Australian who sell it to them.
The ICE hears the case but finds that since Friendly Coal is based in Australia, which is a party to the Court, it can be the subject of action in respect of acts in China that cause damage in Tuvalu. Friendly Coal sees where this is heading and settles out of court for $50 billion dollars.
Cynics will of course say that this scenario is purely speculative. They can point out that the nations of the world have still not agreed to an effective treaty to stop climate change, so an international climate court is a fantasy.
I believe that climate change has installed a new dynamic into world history and the past is little predictor of even the short term future. Recall that Sir Nicholas Stern turned the economic argument about climate change around almost overnight. Likewise Al Gore’s documentary An Inconvenient Truth generated a tipping point in public awareness.
When the international community agrees to act quickly, it does. In 1995, lawyers created an organization to campaign for the formation of the International Criminal Court (ICC). It was only 3 years later, in July 1998, that nations gathered in Rome to adopt the law forming the Court itself.
Just recently I have heard the issue being discussed by leading legal academics and environmental philanthropists, so there are some influential Australian supporters for an ICE.
The Australian Coal Association might want to buy some Cruel Sea and listen to the lyrics, “Better get a lawyer son, Better get a real good one”?
Thanks DZC.
Would love to see it happen. There'd be a decent list of defendants... on the note of Australian Coal Association, did you know that the current Executive Director of ACA, Ralph Hillman (of CPRS scare campaign fame http://www.youtube.com/watch?v=UFJ125KQfyM), was previously Australia's Chief Negotiator to the Kyoto Protocol from 1998-2002? And our 'Ambassador for the Environment', whatever that is...
I agree and the sooner the better for all, including the Coal Kings and particularly their children.
It's a great cause to persist with. Can there be a link with cases against tobacco companies?
If the government fails to make legislation, there is always the judicial system. Isn't that the safety net of a democracy?
Here's hoping our court system is somewhat saner than our government. It is insane sociopathic behaviour we are witnessing here. The coal kings are perpetrators of genocide. ICC should put out a warrant for their immediate arrests. That is sanity
Patrick - isn't that ridiculous about Ralph Hillman? The current Queensland Governor, Ms Penelope "Penny" Wensley AO was a good Ambassador for the Environment, 1992-1996.
Thanks M.
Kevin I think there must be a few avenues worth exploring, after the example of Tobacco.
Marcella you put it uncompromisingly, as always. The Courts should make saner findings, because the judges are less carbon captured.
RSS
Great stuff.