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:

1. Claims related to procedural injury

2. Claims for injunctive and/or declaratory relief

3. Claims for compensation

Claims summarised

• California v GMCCalifornia 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.))

• KivalinaNative 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

1. Causation as an element of standing (“fairly traceable”)

2. 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?

Questions?

Comments?