10/04/2021 - Expert Witnesses In More Cases Fighting Global Warming

A growing generation of new environmental activists are pursuing governments and big businesses in the US and abroad in the pursuit of a cleaner environment and to combat global warming. In the last five years there has been a marked increase in the number of lawsuits in the US and abroad.

A succession of wins in the last few years years is raising hopes that the legal scales are tilting in favour of positive climate action. In May, a good example was when the District Court of The Hague ruled that the energy company Royal Dutch Shell must reduce its carbon emissions by 45% compared with 2019 levels over the next 9 years. Imminent environmental harm to Dutch citizens was the reason behind the ruling.

For all that, courts still tend to rely most on the scientific conclusions of the IPCC,
said James Hansen, a climate scientist at Columbia University in New York who has advised or served as an expert witness in dozens of climate lawsuits since 2005.

Hansen is currently both a plaintiff and a witness in the case of Juliana v. United States,
which 21 young people brought forward in 2015 against the US federal government, asking for stronger emission cuts to help the world stay below 1.5 °C global warming.

“As an expert witness I found the case to be frustrating,” Hansen says. “I spent months
at a time preparing an expert report on climate change only to see all that work buried in court proceedings and hardly considered by the judges.”

A US court dismissed the original claim in January 2020, but the plaintiffs filed a motion this March to amend their suit and a judge ordered the United States and the plaintiffs to explore a settlement. Talks are continuing and Hansen hopes that a settlement will include support from the Biden administration for a US carbon fee or tax.

Legal experts predict a range of other climate-related lawsuits coming up. One genre could target financial entities that contribute to future climate change, such as companies trading in goods that can be linked to deforestation. These cases will rely on analyses of global trade and financial flows. Palm oil companies watch out. Other types of lawsuit could involve ‘greenwashing’ which are dubious claims that consumer products are environmentally friendly. There could be light shed on companies’ fiduciary duty to act in the best interests of business partners.

Experts say research on whether countries meet their national contributions to the Paris agreement, and analysis of the costs of inaction, will also become increasingly relevant for future climate lawsuits.

ClientEarth, a group of environment lawyers is also training lawyers and public prosecutors in China with a view to bringing companies to court for polluting the air. If successful, such efforts would help to limit climate change because air pollutants which are massed produced in China such as CFCs in air con units contribute to global warming. But experts claim it is unlikely in China’s autocratic political system that a court would challenge the government for its climate policies.