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Discussion on the role of law on climate change mitigation

Interviewer: Antoine Rondelet, Founder @ Ganddee

Guest: Zaneta Sedilekova, Director @ Climate Law Lab, Stewardship Group @ Legal Voices for the Future


 

Legal Voices for the Future is a collaborative learning forum established by junior practitioners from different fields of law, whose objective is to give voice to a new generation of lawyers. It proposes to do so by holding monthly knowledge sessions open to everyone - lawyers and non-lawyers alike. In order to bring fresh perspective, innovation and determination to pressing global issues such as climate change, each session is organized and led by a different member of Legal Voices for the Future. Legal Voices for the Future is an inclusive and safe space, offering the opportunity for collaboration and collective learning without professing expertise. Anyone can join our open forum knowledge sessions to informally and creatively share knowledge.


Zaneta Sedilekova is a Director of climate and biodiversity risk consultancy firm Climate Law Lab. She provides strategic advice on how climate change and biodiversity loss can pose a material risk to financial institutions and corporations, with an emphasis on directors’ and fiduciary duties. She has co-authored several reports on the topic, including Addressing biodiversity loss – revolution or evolution of English law? and Climate change risk – the future of law as we know it? published by The Law Society of England and Wales in June 2022 and February 2021 respectively. Zaneta is also a founding member and a member of the Stewardship Group of Legal Voices for the Future. Zaneta is also a practicing lawyer with a strong focus on climate and biodiversity risk, as well as their impact on global supply chains and the wider financial sector.


 

Antoine Rondelet: How can law play a role in climate change mitigation? We’ve recently seen ClientEarth suing Danone over plastic pollution. How to make sure companies are properly held accountable and how to keep up with all companies that may breach environmental laws?


Zaneta Sedilekova: The aim of law is not to sue every single company for breaching climate change standards or limits on plastic pollution. What we are seeing, in this area, is a strategic litigation which is very different from normal litigation. In a normal commercial litigation, you would have one party breaking a contract with another party, so there is a monetary reason to enforce that breach. Now, in strategic litigation, it’s usually NGOs or citizens, suing a corporation, or a government, for - if we talk about climate change - planetary issues.

They’re not really suing for their own benefit, they’re suing for a benefit of the whole society.

These strategic cases are chosen on the basis of their impact. Strategic litigants who bring them analyze, let’s say, 10 different producers of plastics, or users of plastics. They look at their turnover, they look at where they’re incorporated, they look at a lot of factors, and they choose one, and pursue that company.


KLM, for example, was sued in the Netherlands. Those litigants had looked at green advertising campaigns, or sustainability marketing campaigns of many more airlines before they chose KLM. KLM was chosen strategically because the claims they were making were quite large and also unconditional, and because they’re a big airline in the Netherlands. So, in strategic litigation, there is no aim to sue as many companies as possible. The aim is to choose the biggest player, the most impactful player, somebody who, when they’re sued, will hit the headlines. One of the goals of strategic litigation is to create so-called liability risk, that is, the risk of future lawsuits against you. This should not distract from other often primary goals of strategic litigation, such as redress the environmental and human rights harms suffered by comparatively disenfranchised communities.


When corporations and governments start perceiving liability risk as a material risk, that risk will affect their behavior, which contributes to achieving the behavioral changes in the entire society. So, if there are many big corporate players being sued on the grounds of climate change, plastic pollution, biodiversity loss, etc. then other players, their competitors, corporates in other markets, will start noticing, and they will start taking legal advice preemptively to mitigate the liability risk. And that in a nutshell is my work. I don’t litigate, I’m not a strategic litigant, but, strategic litigation feeds into my work, as it creates this liability risk which then translates into instructions that lawyers receive from clients, who haven’t been sued, but who face liability risk. Liability risk can also arise from regulatory action, such as development of laws and regulation that create options for liability. Climate liability lawyers essentially advise clients how to do the right thing, how to roll out their sustainability advertising in a way that doesn’t run, or mitigates, the risk of being sued for greenwashing. So, it is the liability risk which is created by the few high-profile cases which then creates the behavioral change. You don’t need to sue every single company. You just need to create the liability risk. You don’t want companies breaching law and causing further greenhouse gas emissions in the atmosphere etc., you want to prevent that. Liability risk is exactly what achieves that prevention.


If I’m representing a big company that is being sued in some climate case, isn’t there constantly a way for me to undermine climate science results by discussing models? All models are a simplification of the world, relying on assumptions, so, isn’t there a way to always refer back to these and turn facts and scientific consensus into “subjective” matters anchored around debatable assumptions? How to prevent this? Are there active collaborations between teams of lawyers and scientists? Do we need juries with specific levels of qualification?


I should say that this question is not unique to climate. Almost any complex claim will include expert evidence, with precise rules of court governing the provision and examination of such evidence. Disagreements over what expert evidence says, what it means, and its relevance to the legal issues in a claim are therefore widely present in other complex lawsuits. In such a context, climate science is just one type of expert evidence.

Science is used in all climate lawsuits. I would say, the problem you are describing was perhaps a problem in the 1950s, when climate change consciousness was only increasing. Back then, everybody talked about “global warming”, which was then changed to “climate change” because “global warming” was seen as not really encompassing all the climate disruptions. Climate change causes warming somewhere, but then freezing cold somewhere else, such as in Mongolia, because of the geographical and other circumstances. So, climate change, as a term, wasn’t used back then. We now know that this was the time when certain corporations, especially in the US, were aware of what their emissions were causing in the atmosphere, but they decided to hide the fact. Now, they’re being sued for it in the US.

So, the problem was when there was competing evidence and lack of scientific consensus. Now, we don’t face that problem anymore. Nowadays, most, I would say all, climate lawsuits currently rely on the Intergovernmental Panel on Climate Change (IPCC) reports which is the top scientific body that draws consensus and clarifies facts on climate change from thousands of studies. The recent assessment reports, the last one being the 6th, present unequivocal evidence of what is happening to the Earth’s climate because of human activities. That science is clear. There are not really many counter arguments that you can make.

Now, the mathematical models are built on that science. Yes, they’re built on a bunch of assumptions, but again, the science on the basis of which they are built is clear. The scenarios discussed are usually 1.2, 1.5 degrees or 2 degrees Celsius by 2050. These are realistic scenarios. So, I don’t think currently, we have so much difficulty in establishing and clarifying science for courts, and courts do take science into account, absolutely. I can tell you that, the strategic litigation lawyers I talk to often tell me that they’re becoming experts on science rather than law. It’s also important to realize that a lot of these teams are multidisciplinary. In a team of 10, let’s say, only two of them will be lawyers because legal principles are not the sole basis of the case. Five of them would be science researchers. Then, there would be a campaign organizer who’s responsible for funding, because these cases are usually funded by crowds. And then, there would be a marketing person because if you want to attract the funding, to be able to pursue your case, you need to explain it to the public. There must be a person who can explain very complex things in very simple terms to the public, in order to gain the funding. So, the teams that pursue these cases are not teams of lawyers, they are teams of scientists, lawyers, marketing experts, fundraising experts etc. because these cases are so much more than just a case on behalf of a single entity.


There are also collaborations between scientists and lawyers, on climate more than biodiversity I have to say, but generally especially in attribution science. In law, one of the things you have to establish to win a case is causation. Causation is a legal term that means that you have to establish that the emissions generated by one company caused the loss you are complaining about. If you’re complaining that a hurricane somewhere in the Caribbean destroyed your house, that’s your loss, and you have to establish that this loss is linked to the emissions of a corporation in Germany, for instance. That’s very difficult. Normal causation principles are simple and will not result in a successful case. With climate change, causation becomes difficult because the impacts of climate change are caused by accumulated emissions in the atmosphere. So, you cannot establish that emissions of a particular company in the Netherlands or Germany single-handedly caused the loss of your house in the Caribbean. It’s geographically removed, which is a challenge on its own. But also, the loss is caused by accumulation, not by singularity of the emissions.

Law has been struggling with this. There are a lot of legal theories that are trying to come up with new theories of causation so that we accommodate this sort of unprecedented circumstances. A lot of these theories are based on attribution science, which is pioneered by Oxford. In attribution science, scientists are essentially calculating how you can distribute GHGs emissions among the largest emitters, now, and then, how you can allocate their contribution to the loss, like the house destroyed by the hurricane, to stick to our example. There are cases that have a potential to be successful. There is a case, for instance, where a Peruvian farmer is suing a German utility company for melting of glaciers in the Peruvian Andes. In the case, the claimant has established the contribution of this company to the melting of the glaciers. As the glacier melts, the glacier’s lake is becoming bigger, and there is a risk that it will flood his village. There is a huge collaboration between scientists and lawyers, and actually, some scientists have published an article where they criticized lawyers’ failures to explain science properly to the courts. So, there is an awareness that lawyers need to do better, but the conversation is definitely ongoing between lawyers and scientists. As a climate risk lawyer, I work with science a lot, and I need to learn how to explain it. Now, with regard to juries, in most jurisdictions, juries are only engaged in criminal cases, not civil cases. So that wouldn’t always be relevant. There have been a few criminal cases, but usually those are cases of climate activists being arrested for protesting and then being brought before court. It’s a climate case because the activist was protesting against inaction on climate, so it is a relevant case, but it’s not a case where you would need climate science.


I see, thank you for clarifying. Following up on some of what you said around attribution science and causation. If I am this Peruvian farmer, can I sue the German government as well, saying “Look, your regulations are so sketchy, you are letting every single private entity to do whatever they want, and this is the reason why company XYZ, I am suing as well, has been able to do so much damage on the environment”?


Yes, in most jurisdictions, there are ways to sue the government. There are a lot of cases like that coming from Germany. There are cases in France as well, where the French government has been sued for its failure to act on climate change.

I focus a lot on biodiversity litigation as well, and there is a case, in France, against the government for its licensing regime of pesticides, which are killing bees, and therefore, causing pollinator decline. It’s very possible and indeed desirable to sue governments for their failures or inadequacies. The UK government has also been sued several times for their decisions and climate policies.


Usually, governments are sued before litigants turn to corporate actors, and those are test cases. Climate litigants test arguments against the government, and then, they often employ the same arguments against corporations. In Germany specifically, there is a trend to sue on behalf of young people. The strategy there is to link the case to the people who will suffer most of the impacts of climate change, and these are the young people.

You can see how very well thought-through that strategy is because it really brings home what it means to suffer from the impact of climate change.


Have we seen similar situations around things like oil spills, for instance? If I am a surf shop owner on a beach and wake up one day with oil everywhere in the sea and on the beach, can I just go and sue my government and say: “well, you didn’t properly monitor companies extracting oil in your Exclusive Economic Zone (EEZ), so I sue you for failure to monitor and regulate the oil sector”? Have we seen governments being sued in such test cases, as you said, to then bring the company to court?


There have been cases. They are different from climate change, though, and should not be confused.

I wouldn’t compare them too much because you have very direct causation. Oil spill causes you harm. Climate change cases are much more challenging, because of the causation issues I described. So, often such cases are not pursued on an individual basis.

There is one case in the UK currently, where a community in Brazil, in Mariana District, is suing a company based in the UK which is the parent company of a subsidiary in Brazil, for, essentially, causing vast environmental damage to the Brazilian Amazon because of a collapsed tailings dam. It was a mining company, and its tailing dam collapsed and flooded an entire part of the Amazon. Obviously, these people lost their livelihoods, they had to move out of that part of the world, they had to move into cities, and you know, they lost houses and their ability to sustain their lives. Now, it would be inefficient for every single person to pay a lawyer to bring a case. So, what usually happens in these circumstances, is that a foundation is created that represents all the victims. There is a legal team working with the foundation, and they sue the company and develop the strategy. So, these cases exist, they’re a bit easier, but not easier in terms of the damage caused. They are horrendous and deserve a lot of compassion, but they are easier and very distinct from climate change cases, because of the causation.


If I join forces with many people, and we set up a foundation or an entity, is there a way we can, e.g., sue a company cutting trees in the Amazon forest, on the basis that they are causing environmental damage and destroying the planet we all inhabit? Even if we are living on the other side of the planet, can we just go and say “XYZ government is allowing deforestation and company ABC is cutting trees we all need to live, so you are harming us all, and so we sue you”?


You often cannot, but this is a difficult one. You have to have what is called “legal standing”. So, usually, you have legal standing if you suffered harm. If you go to Tesco, for example, and slip on spilled milk, that’s a liability for Tesco because they should have cleaned this spilled milk so that you did not get injured. In this case, you have so-called legal standing to sue them.

It’s really, really hard, depending on jurisdictions, to bring a case without legal standing, i.e. without a legally recognized interest or sufficient legal interest . Having said that, there are innovative approaches to this. This is really difficult when the damage is caused to the environment but not to the people. In the case I mentioned, for instance the Mariana case, the case is being brought on behalf of people who suffered harm, so there is a direct human claimant. Those people suffered harm because of what happened in Mariana. But, if people didn’t live in that area, if the area was uninhabited and the same thing happened, it would be really hard to pursue the company individually, i.e. as individuals.


There are legal doctrines, developing around the world, which try to address this issue. One of them is “Rights of Nature”. You have rights, I have rights and if our rights are breached, we can go to court. Law, in Western societies, doesn’t give rights to objects. We don’t think that objects, even living objects like dogs, have rights. Objects are our property. We treat almost everything like our property. The “Rights of nature” phenomenon comes from indigenous traditions, which often treat natural objects as equal to people. We have seen such a phenomenon happen around the world. In New Zealand, for instance, rivers and certain parts of forests have been given legal personality, which means they have rights. We have seen it in South America because of large indigenous communities there. We have seen it in the US as well, and in Canada, where rivers were given legal personality. Same for India. What follows from a recognition of the rights of nature is the legal personality for a natural object. Usually, a committee is then established to exercise the right conferred on the natural object. Therefore, if those rights are breached or violated, that committee can take action on behalf of that natural object. It’s a new phenomenon which hasn’t been largely pronounced in Europe yet. But for example, there is one sea, Mar Menor, in the Spanish province of Murcia, which was given legal personality. So, we can see this as a trend that will allow natural objects, which have been harmed by pollution, or climate change, to bring claims on their own behalf exercised by people against the polluters.


Thanks for all your answers and clarifications Zaneta.


 


Further reading


 

We originally published this interview on OCRA, a climate forum and community that we started. This interview has been moved to our blog following the closure of the OCRA forum.


Ganddee interviews offer an opportunity to put some guest community members at the center stage. During these interviews we ask questions to our expert guest to better understand their work, learn from them, and understand how they contribute to the fight against climate change. We hope these interviews will serve as an invitation to expend the discussion on the forum.

If you liked this interview, please be sure to hit the “like” button on this post to let us know. If there are specific topics you would like to see covered in an interview, please let us know by either sending an email at: hello+interview@ganddee.com or by dropping a comment below.


Happy day!


 


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