Companies taking notice of climate suits
International environmental lawyer Christina Voigt is a professor at the Department of Public and International Law at the University of Oslo, a legal advisor to the Norwegian Ministry of Climate and Environment and a negotiator in UN climate negotiations. She’s also advised oil giant Equinor.
Voigt got set on her career in climate law after doing her Masters at the University of Auckland. She was back in New Zealand last month to speak at a conference to mark Dame Sian Elias’ retirement.
Eloise Gibson asked her about the hurdles facing people suing governments and companies over climate change, and whether the law suits will change anything.
[The interview has been edited for length and clarity].
Newsroom: What are you speaking about in Auckland?
Christina Voigt: I’ll look at the international aspects of how the Paris Agreement can influence and guide climate cases that are being dealt with in domestic, national courts.
N: There seem to be a lot of cases going on internationally. There’s the group of American crab fishermen suing oil and gas companies for reduced catches, we’re seeing young people trying to sue their governments. Is this a big trend around the world?
CV: It’s a rising tide, a lot of attempts everywhere in the hope that one of them will finally succeed. And if that happens I think there’s going to be a watershed. But we haven’t seen this yet. We’ve had the Urgenda case in the Netherlands, which was a significant step forward, but in terms of liability there is still no authoritative statement anywhere.
But if it happens I’m convinced that courts across different jurisdictions and countries will refer to each other and to other courts that have found causal linkages.
N: You’ve mentioned causation – is proving causation the biggest legal hurdle? Because even climate scientists sometimes struggle with making a direct link between a particular event and climate change.
CV: I’m not sure I would say the biggest. There are a lot of big legal hurdles. But it is the one that is the most closely linked with non-legal, scientific issues because you have to look at the accumulation of greenhouse gases and what effect that causes and what kind of consequences it has. We have a landslide causing people to lose their lives and their property but was that caused by climate change, caused by greenhouse gases? And if so, whose greenhouse gases?
But the law has different tools. For example, you can have a due diligence requirement where you can say parties just haven’t done everything they could to avoid these consequences.
It will probably take an open-minded judge and a very good litigant to make that statement, but I have a feeling it is probably going to happen.
N: Are any of these cases particularly strong?
CV: I’m not sure we’ve seen the strongest case now. The Urgenda case was based on a duty of care to increase (the Dutch government's) domestic emissions target. But what we haven’t seen yet is a case that was argued on the basis of a duty of care to avoid the impacts of climate change, and that might actually be quite a strong case. That countries or companies simply haven’t done everything they could to avoid the damages, given that they knew what was happening.
N: There seems to be two types of cases. There are the ones pressuring governments to be more ambitious, and ones claiming damages from companies for compensation for harm arising from their lack of action.
CV: These are the main two angles we see, but there are others as well. Dealing with the impact of climate measures, for example impacts on biodiversity from wind farms, that sort of thing, or access to carbon trading.
N: What’s driving this? Is it desperation, that people can’t see another way to get action?
CV: It’s a mixed bag. Yes, it’s dissatisfaction with governments, and I guess rightly so. We know the ambition collectively worldwide is not enough and will not prevent warming anywhere close to 2C let alone 1.5C. People are trying to push governments and they should – democratic lawmaking doesn’t always go to the highest level of ambition.
But it’s also a genuine wish to bring the courts into this picture. Apply the law. See how much the law can contribute, because it is an ‘all hands on deck’ issue. It’s a wicked problem, as we know. Using the third pillar of state power, the judiciary, is a very legitimate way of taking action.
N: I was at an insurance conference in Auckland last year and one of the speakers was talking about climate litigation. She was saying, basically, that most of these cases will not win because it is a very high bar, legally. But she believes corporations and governments will change their behaviour merely because of the possibility of litigation. Do you think this will happen?
CV: I don’t know. But I do know that energy and oil companies are getting incredibly worried about possible cases.
I do work partly for [oil company] Equinor here in Norway and it’s a very difficult situation because you have an oil giant the whole country relies on for income and yet they need to do something about climate change. They are worried about litigation and they are following very closely what's happening all around the world.
And they are willing to turn the tide. I’m not saying they are going to abandon ship but they are looking at how they can invest in renewable energy. And how they can diverge their investment into different energy sources. So the possibility of litigation alone has an effect on companies but [change] may not go on without litigation, and we have seen changes to society throughout the centuries because of litigation, for example tobacco and slavery.
You may also have heard of the major emitter initiative. (N: this is a process whereby major investor press the biggest emitters for climate action).
But it's only one way of going forward. I think it's more important to get governments to regulate companies’ behaviour, in terms of internalising what would otherwise be external climate costs. Because we need a global level playing field, we need to avoid pollution havens and carbon leakage to other parts of the world. And that can only happen if governments co-operate.
N: What advice do you give when you’re advising people on either side of climate litigation? What's important?
CV: You have to have really well-founded legal arguments on both sides. Pure activism will fail in the end if it was (legally) unfounded. So having really good lawyers on the climate activist side is really important. And we’ve seen a significant increase in competence on that side. I also think avoiding litigation is sometimes better. If a case failed it would have a very negative message. So trying to avoid outright failures is good. When I advise clients I always advise them to look at alternatives, I’m not really advising towards litigation. We have litigation because bodies can’t agree and we never know what a judge will decide, so there’s a degree of unpredictability.
N: It sounds as though you are hoping for change, but, for your clients’ sakes, you're hoping they don’t go through the courts?
CV: It’s two different questions. I just try to stay with a degree of integrity. But trying to bring actors together is very important, because there have been quite separate camps, you have government official, you have corporate actors, but not a lot of exchanges. And that is about to happen, because this transition is imminent and important and if we don’t manage to transition to a carbon neutral society in the next decade or so everybody will (suffer) including corporations and including governments because it will affect every kind of system that we have, and any kind of order will be under threat. It is just starting to sink in that it will affect companies and everything that is quite well-ordered these days and there is an increasing willingness that I can sense to do something about it.