Friday, January 31, 2014

Who Is Legally Responsible for Climate Change Impacts (and avoiding them)?

English: Aerial view of Kivalina, Alaska, USA....
English: Aerial view of Kivalina, Alaska, USA. View is to the southeast. (Photo credit: Wikipedia)
International Climate Change Liability: A Myth or a Reality? (Jennifer Kilinski, 42 page pdf, J. of Transnational Law & Policy, Spring 2009)

Also discussed here: Office of the Auditor General 2012 Annual Report (City of Ottawa, Nov. 28, 2013)

And here: The Alaskan village set to disappear under water in a decade (Stephen Sackur, HardTalk, BBC News Magazine, Jul. 29, 2013)

And here: The Moral and Criminal Case Against Canada's Climate Negligence (William Rees, Dec. 7, 2013)

Today we review the liability of companies which emit greenhouse gases for losses caused by anthropogenic climate change. Several suits have been raised in the last 5 years by plaintiffs that have suffered significant impacts against the main emitters of carbon pollution which in the USA is the electrical generation industry which is responsible for 25% of that nation’s emissions. 

While these suits concern flooding from sea level rise of Arctic islands, such as Kivalina, Alaska, the Auditor General for the City of Ottawa found that “Lack of a systematic and comprehensive climate change adaptation plan may result in impairment to municipal infrastructure and services due to extreme weather resulting from climate change. This could then result in potential legal action due to sustained property damage”. This liability was linked to the provincial Emergency Management and Civil Protection Act requires an emergency preparedness plan be in place. 

Taking this thinking a step further, most of the world’s greenhouse gas emissions originate in cities and one of the principal GHG emitters is the transportation sector and private vehicles n particular which are owned and driven by around 70% of the city’s population. Those most affected by air pollution from these vehicles are too young or too old to drive. Just as the Inuit on a small Alaskan island are among the lowest emitters of GHGs and suffer the most from climate change, the same logic applies to the young and elderly in cities who conceivably could launch a valid class action against those responsible for vehicle emissions for both health impacts, accentuated by climate change, and for damage to property and infrastructure as the Auditor General found. The Court found in the Kivalina case that regulation of greenhouse gases was a political rather than a legal issue and one would look for accountability at that level. 

 However, the failure of the City of Ottawa to prepare a plan of action to protect and adapt to climate change appears to provide a potential legal recourse for those suffering losses, whether they be structural or health. In addition, cities have a dominant role and mandate in regulating traffic, congestion and roads, as well as the ability to price use of these, which in turn gives cities the ability to regulate greenhouse gas emissions and the liability that goes with this responsibility. How long will it take those who are impacted to sue the city and vehicle owners for damages?

Key Quotes:
“Human activities caused global GHG emissions to increase more than 70 percent between 1970 and 2004 alone.. The global sea level rose at an average rate of 1.8 mm a year before 1993 and 3.1 mm a year since then”

“the ideal plaintiffs are those individuals or group of individuals who contribute the least but are harmed the most, who are discrete and identifiable, and who can demonstrate significant and specialized harms readily linked to greenhouse gas emissions.”

“the Inupiat Eskimo Village of Kivalina, Alaska filed suit against twenty-four of the world’s largest oil and energy companies,157 alleging that they caused the global warming responsible for significant harms to Kivalina…. The suit was dismissed by the United States district court on September 30, 2009, on the grounds that regulating greenhouse emissions was a political rather than a legal issue and one that needed to be resolved by Congress and the Administration rather than by courts.”

“for a climate change suit, plaintiffs need to demonstrate that the emissions caused by the named defendants are such that they interfere with the public health, safety, peace, convenience, or comfort, and that defendants knew or had reason to know of the effects upon the public right.”

 “in Connecticut v. American Electric Power Co.,141 Connecticut, seven other states, the City of New York, and several environmental groups sued a group of electric utilities under federal public nuisance common law, asking them to abate the global warming nuisance… the defendants were the five largest emitters of carbon dioxide in the United States..”

“- The Air Quality and Climate Change Management Plan[City of Ottawa, 2004]..outlined a risk assessment and mitigation plan to be undertaken in phase II (scheduled to occur in 2005-06), but no progress was made in this area….Lack of an assessment of the impact of climate change to waste water infrastructure will exacerbate risks noted in that area as well..The level of control over adapting to climate change is not well controlled as no ownership has been identified and attention to adaptation requirements is sporadic..”

"Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” [Canadian Criminal Code (Section 219))
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