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Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation. by Elena Kosolapova Centre for Environmental Law University of Amsterdam. Outline :. Introduction Summary of claims Analysis of legal challenges Conclusion. Introduction.
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Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation by Elena Kosolapova Centre for Environmental Law University of Amsterdam
Outline: • Introduction • Summary of claims • Analysis of legal challenges • Conclusion
Introduction • UNFCCC liability mechanism NO • Claims in international courts NO • Claims in domestic courts YES
Climate Change Litigation: • Claims related to procedural injury • Claims for injunctive and/or declaratory relief • Claims for compensation
Claims summarised • California v GMC California v General Motors Corporation, et al., Case No. C06-05755 MJJ, Order Granting Defendants’ Motion to Dismiss (N.D. Cal. 2007) • Comer v Murphy Oil Comer, et al. v Murphy Oil USA, inc., et al., 2009 WL 3321493 (C.A.5 (Miss.)) • Kivalina Native Village of Kivalina v ExxonMobil Corp., et al.,2009 WL 3326113 (N.D. Cal.)
California v GMC • Public nuisance global warming lawsuit for damages • Dismissed under political question doctrine • Appeal filed with Ninth Circuit 10/2007, Briefing completed 8/2008, Oral argument in 2009
Comer v Murphy Oil • Public nuisance class action suit for damages • Dismissed due to lack of standing & under political question doctrine • Plaintiffs appealed
Comer v Murphy Oil (cont’d) • 16 October 2009: district court’s judgement reversed by Fifth Circuit • Plaintiffs-appellants have Article III standing • Claims do not present non-justiciable political questions
Kivalina • Public nuisance global warming action for damages • 30 September 2009: claim dismissed by district court due to lack of standing & under political question doctrine
Legal Challenges: • Non-justiciability of political questions • Standing • Causation • Attribution (please see paper) • Retroactivity (please see paper)
Non-justiciability of Political Questions • Separation of powers • Political questions to be decided by the elected branches
Standing [T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.[1] [1]Friends of the Earth, Inc. v Laidlaw Environmental Services, Inc., 120 S.Ct. 693 (2000), p. 704, citing Lujan v Defenders of Wildlife,footnote omitted.
Causation • Causation as an element of standing (“fairly traceable”) • Causation on the merits Complex causal chain: GHG emissions from a given source global warming () climate change extreme weather events injury suffered by plaintiffs
Conclusion Challenges at the interstate level: • Attribution, causation, retroactivity & standing PLUS • Breach of an international obligation • Competent courts • Compensation amounts DECLARATORY RELIEF?
