Climate-related loss and damage: liability, compensation, and responsibility

Even though it does not feature prominently in public discourse, climate-related loss and damage has become an increasingly important topic at global climate negotiations. The simple fact is that people around the world face loss and damage from climate impacts, both now and in the future. Questions of liability and compensation for climate-related loss and damage are highly sensitive topics at international climate conferences. However, recent progress in a number of areas indicates that the legal landscape might be changing.

Past emissions of greenhouse gases means that, whatever action is taken now to reduce carbon output, some level of climate change is inevitable. At the same time, there are also limits to adaptation and while some of them can be overcome, others cannot. Loss and damage occurs at the point at which the severity of climate impacts exceeds the limits of the adaptation measures that have been taken to protect against them. But, loss and damage can also occur when possible adaptation measures are not implemented due to political, economical, or even cultural reasons.

Loss and damage in international policy

The issue of loss and damage has been especially divisive at international climate negotiations, causing many disputes. For vulnerable developing countries, such as small island developing states (SIDS), it has become a matter of climate justice. Sea level rise, for example, threatens their lands, their economies and their way of life. At the same time these nations, are some of the least responsible for historic greenhouse gas emissions.

Rich countries, including some of the world’s biggest greenhouse gas emitters, are reluctant to admit liability for current climate impacts; fearful of being liable for compensation claims that could run into eye-watering figures. Such is the resistance to the loss and damage agenda, that it was only as recently as 2014, that the issue began to get more significant traction when the Warsaw International Mechanism for Loss and Damage (WIM) was established.

At last year’s UN climate talks, loss and damage turned out to be one of the most contested issues. Developing countries had included paragraphs on loss and damage that called explicitly for liability to be attributed and compensation to be paid. From the other side, the Umbrella Group (a group of non-EU developed countries, including the United States of America) brought forward an alternative proposal with no mention of loss and damage at all. With the talks well into their second and final week, there was still a great deal of negotiating to be done.

In the end though loss and damage did make it into the Paris Agreement under article 8.1 with the text: “Parties recognise the importance of averting, minimising, and addressing loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, and the role of sustainable development in reducing the risk of loss and damage.”

The decision text, however, also clearly states that claiming liability and compensation for climate related loss and damage would not be possible.

Are liability and compensation completely off the table?

It is unlikely that compensation and liability will re-enter international negotiations anytime soon. However, on a national or sub-national scale, things might look somewhat different.

The Intergovernmental Panel on Climate Change (IPCC) has warned about the impacts of climate change for many years. Furthermore, science is increasingly becoming more and more capable of linking extreme events to climate change, as well as making increasingly accurate predictions about slow-onset events.

This gives rise to two major questions: Firstly, who carries and/or should carry the risk of potential climate harm? Secondly, given that predictions made by the IPCC in their assessment reports are proving, so far, to be accurate, does the concept of force majeure hold up, or could it be possible to argue that losses and damages occurred as a consequence of negligence? Furthermore, and with a special focus on climate change adaptation, could courts interpret not implementing possible adaptation measures as negligence?

When courts recognise failed responsibilities

These questions are challenging on a philosophical level, and answering them will depend on countries’ legal codes and how courts interpret them. However, in recent months, a few legal cases were won in the U.S.A. that might be offering a glimpse into the legal future of climate change.

The first case was a lawsuit filed by eight children suing their state, Washington, for failing to protect their generation against climate change. In a surprise decision, the judge ruled in the children’s favour and ordered the state of Washington to produce, by the end of the year, rules that would cut greenhouse house gas emissions and to align emission-reduction goals with the latest science. So, not only did the court recognise that the state’s inaction was harming younger generations, but it also ordered according actions.

In Massachusetts, teenagers sued their government because it had failed to address climate change in an appropriate manner and, again, the court ruled in the teenagers’ favour. The Department of Environmental Protection was then ordered to produce and implement stronger regulations that would lead to the emission reductions outlined in the state’s Global Warming Solutions Act from 2008.

Finally, the U.S. District Court in Eugene, Oregon, denied motions of the federal government and fossil fuel industry aimed at dismissing a lawsuit over the harms of climate change. In the lawsuit, 21 young plaintiffs argue that their constitutional rights are being violated due to the government’s failure to reduce greenhouse gas emissions.

These cases, and others, represent some of the first clear signals of the future direction of climate change related court cases. With the climate change consensus getting stronger and stronger, science becoming more accurate, and courts acknowledging failed responsibilities, it begs the question: Are liability and compensation for climate related loss and damage really just wishful thinking by climate justice campaigners or could they, at least at the national level, become a reality?

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Post written by Elisa Jiménez Alonso | 22nd June 2016

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