Climate Change Disputes Presented by: Professor James Dallas Norah Gallagher Date: 8 July 2020 Contents - Part 1 - The Science and the Problem (24 June) - Part 2 - The Challenge for Public International Law (1 July) - Part 3 - The International Legal Framework (1 July) - Part 4 - Climate Change Disputes (8 July) New Trend - Climate change litigation - Arbitration - • Investment treaty arbitration • Some concerned that climate change policy will be 'written in Washington' • Commercial arbitration Human rights in investment treaty arbitration • State of necessity defense ECT Renewable Claims - Over 50 cases - Awards Issued - Spain • Charonne • RREEF Infrastructure • Eiser • - Isolux Netherlands BV Italy • Blouson URGENDA Foundation v Netherlands C/09/456689/HA ZA 13-1396 (24 June 2015) Hague District Court - The Court said: "[I]t has been established that any anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase in CO2 levels in the atmosphere and therefore to hazardous climate change." Para. 4.79. - In addition, the Court found a sufficient causal link "can be assumed to exist" between Dutch emissions, global climate change, and the effects. - The Court determined the Dutch government must reduce CO2 emissions by a minimum of 25% (compared to 1990) by 2020 to fulfill its obligation to protect and improve the living environment against the imminent danger caused by climate change. Juliana v USA 6:15-cv-151 (2015) - Action seeking declaration that federal government violated plaintiffs' constitutional rights by causing dangerous carbon dioxide concentrations - "[b]y their exercise of sovereign authority over our country's atmosphere and fossil fuel resources, [...] permitted, encouraged, and otherwise enabled continued exploitation, production, and combustion of fossil fuels [...] deliberately allow[ing] atmospheric CO2 concentrations to escalate to levels unprecedented in human history". - Supreme Court motion to dismiss denied Juliana Ninth Circuit decision 17 January 2020 - Dismissed for lack of standing the alleged violation of Fifth Amendment due process right to a "climate system capable of sustaining human life" - "[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular," - Beyond Court's power "to order, design, supervise, or implement the plaintiffs' requested remedial plan." - Majority "reluctantly" concluded that "the plaintiffs' case must be made to the political branches or to the electorate at large" Saúl Luciano Lliuya v RWE - - Essen Court dismissed claim • If RWE ceased emitting Lliuya's situation of potential disaster remained • "linear causal chain" established Hamm Regional Court on appeal confirmed admissibility • Case in evidentiary phase • Not known if Peru will allow investigations on the Glacial Lake • Appeal by RWE to have admissibility claim revers • Not too imprecise Commission on Human Rights of the Philippines (CHR) - Hearing climate change case filed by survivors of Typhoon Yolanda in October 2013. - CHR is a constitutional body with the power to investigate human rights violations - Sent 47 "carbon majors" including Shell, BP, Chevron, BHP Billiton and Anglo American, a 60-page document accusing them of breaching people's fundamental rights to "life, food, water, sanitation, adequate housing, and to self-determination". HR Commission at COP 25 December 2019 - The Commission found that climate change constitutes an emergency situation that demands urgent action. The Commission further concluded that Carbon Major companies played a clear role in anthropogenic climate change and its attendant impacts. - The Commission found that, based on the evidence, Carbon Major companies could be found legally and morally liable for human rights violations arising from climate change.