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Rising climate change litigation puts State, oil companies on edge

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A local fisherman fishes near submerged buildings of the Soi Lodge on the shores of Lake Baringo on October 6, 2020, where floods have displaced entire villages and submerged farms. FILE PHOTO | NMG

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Summary

  • Unless your area has ever been hard hit by heavy floods or a biting drought, you might think some disasters were designed only for certain regions.
  • Well, climate change is around, and besides the fact that it is exacerbating weather calamities, it is also sending more people to court as they challenge governments and corporate firms for inaction or for contributing to the crisis.
  • In a new report released a week ago by UN Environment Programme (UNEP), data shows that climate litigations have nearly doubled over the last three years.

Unless your area has ever been hard hit by heavy floods or a biting drought, you might think some disasters were designed only for certain regions.

Well, climate change is around, and besides the fact that it is exacerbating weather calamities, it is also sending more people to court as they challenge governments and corporate firms for inaction or for contributing to the crisis.

In a new report released a week ago by UN Environment Programme (UNEP), data shows that climate litigations have nearly doubled over the last three years and are increasingly compelling governments and corporate actors to pursue more ambitious climate change mitigation and adaptation goals.

The Global Climate Litigation Report: 2020 Status says 2019 saw a strong rise in climate related litigation globally. The total number of climate change cases filed between now and January last year, according to the report, reached 1,444, up from 1,302 in 2019.

Experts attribute the avalanche of litigations to rising climate emergencies such as heavy floods, storms and fires.

Mr Mark Odaga, an advocate of the High Court and a senior programme officer and with Natural Justice – a legal advocacy group working on environmental issues and human rights – observes that even Kenyan communities that find themselves on the edge of climate change can find comfort in the fact that Kenya is among few African countries with a climate change law.

And as climate change drives extreme weather events, legal actions against those that cause the crisis could be the key to forcing solutions, experts point out.

In 2019, the National Environment Tribunal revoked the Environmental Impact Assessment License issued to Amu Power Limited to develop Kenya’s first coal-fired power plant in Lamu County in a landmark ruling that caught the world’s attention. The decision followed an appeal filed in 2016 by Save Lamu, a community-based organisation, and five Lamu residents.

Two years earlier, the Ogiek – a forest dwelling community – won a litigation against the Kenyan government at the African Court on Human and Peoples’ Rights as they stood against forced eviction from the Mau Forest Complex, their homeland.

“Citizens are increasingly turning to courts to access justice and exercise their right to a healthy environment,” says Mr Arnold Kreilhuber, Acting Director of UNEP’s Law Division. “Judges and courts have an essential role to play in addressing the climate crisis”.

Ms Lydia Omuko-Jung, a climate change lawyer, notes that climate litigation stems from growing frustrations of the slow pace with which governments are confronting the crisis of our lifetime.

The researcher who is based at the University of Graz in Austria tells the Business Daily that communities are turning to courts to fill in the regulatory gaps and address failures in climate governance, hold companies liable for their emissions and to maintain pressure on both governments and corporations for climate action.

In 2017, the report says, 884 cases were brought in 24 countries. By the end of 2020, cases had nearly doubled, with at least 1,550 climate change cases filed in 38 countries (39 including the European Union courts).

The surge in litigation, according to environmental crusaders is a positive move as it means more pressure on governments and corporations to tackle the climate change problem.

While climate litigation continues to be concentrated in high-income countries, the report’s authors expect the trend to further grow in Africa and Asia.

Climate sensitive sectors

It is worth noting that Kenya and her African counterparts are amongst the worst affected by climate change and as such should have more climate lawsuits.

However, this is not the case due to low awareness, especially among the vulnerable groups such as those who depend on climate sensitive economic sectors such as agriculture for a livelihood.

A survey conducted in Kenya in 2012 during the preparation of the national climate change action plan showed that whereas the population was aware of changes such as increased temperatures and frequent droughts, they could not connect the occurrences to the concept of greenhouse gases (GHG) emissions.

Lack of awareness has led to little demand for ambitious actions from governments or even the private sector, experts says.

Mr Odanga notes that there is an urgent need to see how development decision making accounts for climate impacts through the formulation of clear guidelines on climate vulnerability and impact assessments.

“There is also a budgetary component to addressing these issues and one hopes that this year’s budget will adequately provide for climate mitigation and adaptation,” he adds.

UN Environment says it expects climate litigation to increase in national and international bodies in coming years, especially with respect to companies misreporting climate risks, governments failing to adapt to extreme weather events, and cases brought to enforce previous court decisions.

A rise is also expected in cases concerning persons displaced by climate change impacts, UNEP says.

The revelation by the environmental body could work as an eye opener to hundreds of Kenyans in Baringo, Nyando (Kisumu County) and Kobala (Homa Bay County) who have been homeless for the last one year after being displaced by floods and the backflow of Lake Victoria.

There are different types of climate related issues that can be filed in court. For example, a government entity can be sued for approving projects without considering the climate change impacts.

Governments can also be sued for failure to put in place sufficient mitigation and adaptation measures in policies, explains Omuko-Jung.

Public discussions

Furthermore, cases can be filed by victims of climate change impacts against oil companies for their contribution to the climate change problem.

“There are already existing cases in the US filed against oil companies like Chevron and BP by cities and communities at risk of flooding. Another example is in Germany where a Peruvian farmer has filed a case against a German energy company, RWE, claiming that the company is liable for the increased flood risk in his hometown in Peru because of its contribution to GHG emissions.

The farmer is seeking compensation for costs of adequate adaptation measures to protect his property against the flooding,” the environmental lawyer noted.

According to her such types of cases have so far not been successful because of complexity of climate science and the difficulty of proving a link between extreme events such as flooding and the companies’ emissions.

“This may however soon change,” Ms Omuko-Jung says, “as there have been recent developments in climate science that have made it possible to not only link certain weather events to human-caused climate change, but also quantify contribution of major GHG emitters.”

The expert add whether some of the cases succeed or not, the move still brings climate change into the broader public and political discussions, which then influences corporate behaviour and governments attitude towards climate action.