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Long, Stephanie --- "Climate change: could litigation provide equity where the Kyoto Protocol is failing?" [2004] AltLawJl 20; (2004) 29(2) Alternative Law Journal 92

Could litigation provide equity where the Kyoto Protocol is failing?

STEPHANIE LONG[*] discusses the Friends of the Earth climate justice campaign now in its fourth year.

Climate litigation is an increasingly attractive strategy for many climate campaigners. Andrew Simms of the New Economic Foundation recently described climate litigation as the 'laxative' for the 'constipated' international climate change negotiations.[1] On a slightly less metaphorical level, Klaus Toepfer the head of the United Nations Environment Program has acknowledged environmental law, treaties and conventions can provide a healthier, cleaner and fairer world, as long as such laws are enforced. If they are not enforced, they are simply 'symbols, tokens and paper tigers'.[2] The International Climate Justice Programme (ICJP) has clearly identified major industrialised countries as responsible for the majority of human­ induced climate change.[3] Through collaborative legal action and continuing political pressure the ICJP will show leadership in the reduction of greenhouse gas emissions. Civil society is using litigation and national and international environmental laws to lead political will.

The earth's resources should be shared fairly and equitably between all peoples -this is a basic principle of Friends of the Earth's campaign for 'Climate Justice'. Litigation is of particular interest with the ultimate goal of providing a more equitable framework for sharing global resources. Right now, the greatest per capita greenhouse gas polluters are Australia and the USA, as evidenced by the recent calculations that the US based corporation ExxonMobil is responsible for about 5% of the world's greenhouse gasses since 1882.[4]

In comparison, the peoples of the 22 island nations in the Pacific produce only 0.06 percent of the world's greenhouse gases. However, Pacific Islanders face a very grim future - loss of lands through creeping shorelines and the prospect of becoming environmental refugees. Ironically, the nearest continent, Australia is internationally renowned for its appalling treatment of asylum seekers. There is a clear opportunity to reverse the alarming over-product1on of greenhouse gas pollution in the global north by using the law.

History has shown the triumph of politics over science. A 60% reduction in greenhouse gases by the end of this century is what we need to achieve a stable level of emissions in the atmosphere.[5] This was a significant focus in 1993 at the Rio Earth Summit where international recognition of human-induced climate change was gained. Responsibility for action was placed squarely on industrialised states with histories of excessive greenhouse gas pollution. A decade later we have witnessed the negotiating down of international action through the Kyoto Protocol to targets in the first compliance period (2008-2012) at a fraction of the scientifically required shift in emissions. The Kyoto Protocol is still not in force, with major emitters such as Australia and the USA refusing to ratify.

The Australian Government argues that the Kyoto Protocol doesn't provide an equitable framework for climate change given that the 'developing' states don't have emissions targets to meet in the first period.

In addition, the Environment Minister, David Kemp, has argued that Kyoto lacks the ability to significantly cut greenhouse gas emissions to the targets needed, which justifies the Government's position that Kyoto is ineffective.[6] The Australian Government has chosen not to mandate targets for reducing emissions. Instead the Australia Greenhouse Office's suite of greenhouse gas abatement programs provide voluntary emissions reduction programs to the already nationally subsidised fossil fuel industry.[7] In particular, the Greenhouse Gas Abatement Program predominately funds the fossil fuel industry to engage in energy efficiency measures. However, this is just tinkering at the edges of the climate change problem rather than confronting the central role of fossil fuel combustion in creating global greenhouse gas emissions.

'Developing' countries, often countries of the global south, have a limited ability to mitigate greenhouse gas emissions as they are also generally not high per capita greenhouse gas emitters due to the very lack of 'industrialisation'. In addition, scarce economic and social resources with a large proportion of the population living in poverty leaves limited resources to adapt to climate change.[8] We are, therefore, facing the most significant justice issue in contemporary environmental politics, where the worst victims and least blameworthy are paying the highest price. The Inuit Circumpolar Conference recently announced its intention to submit a complaint to lnter-American Commission on Human Rights on the basis that climate change is causing the destabilisation of the permafrost that is affecting infrastructure and hunting.[9]

Using a clear 'climate justice' framework to identify the high per capita em1tters and world's most vulnerable, Australia and the USA become clear targets for climate litigation. In the USA, often noted for its strong litigation culture, two climate cases are on foot. First, a coalition of environmental organisations (including Greenpeace and Friends of the Earth as well as city councils in Colorado and California) is suing the United States export credit agency over its funding of fossil fuels.

Second, a coalition of 12 states, over 20 cities and more than 12 environmental groups is challenging the federal Environmental Protection Agency's proposed Clean Air Act \IVhich fails to identify carbon dioxide (major greenhouse gas) as a pollutant.

In Australia, Climate Action Network Australia (CANA) launched the Australian Climate justice Program to explore climate Irrigation options. Possibilities covered thus far range from the Commonwealth CorporationsAct 2001 and Trade Practices Act 1974 to the more traditional areas of local environmental law, such as planning and pollution control. The ultimate goal is to take legal action which forces governments and corporations to reduce greenhouse gas emissions.

As part of the Australian Climate justice Program, CANA wrote letters formally placing the major polluters and emitters of greenhouse gases on notice, reminding them of their potential legal liability if they failed to address, the risks of climate change posed by their activities.[10] These major emitters were drawn from the top 200 companies registered on the Australian Stock Exchange (ASX), as well as large corporations with significant operations in Australia who are not listed on the ASX. Under the Corporations Act a failure to deal with 'climate risk' could amount to a breach of directors' duties, given the extensive scientific knowledge on greenhouse gas emissions and the effects of human­ induced climate change. CANA defines 'climate risk' as the culmination of financial, regulatory and litigation risk due to climate change. Indeed, the rising cost of insurance and re-insurance has received a substantial amount of international attention after multinational insurer Munich Re published Top1cs: Annual Review of Natural Catastrophes in 2002 which detailed economic losses as a result of extreme weather events of $US55 billion for that year alone.[11]

The intent of CANA's notification action was to send a clear message that even though the Australian Government refuses to ratify Kyoto, there is an increasing body of science that affirms climate change and its effects. This means that corporations cannot plead ignorance of the effects of their activities and simply continue business as usual. Science tells us clearly that we must move to a carbon free future in order to mitigate disastrous climate change.

Ultimately, climate litigation cannot replace the value of a comprehensive international agreement with binding targets for emissions reduction for industrialised states and support for alternatives to fossil fuel development paths for lesser-developed countries of the global south. Energy poverty is a major issue for many of the world's poor. While we can enjoy the majestic comforts of four-wheel drive cars with DVD players to conquer the urban landscape in Australia, equity will remain a fundamental issue for climate justice campaigning. The tools of litigation provide an opportunity to make strong gains towards an acceptable lever of 'convergence' (the state where everyone in the world has access to an equitable share of carbon resources at a level that is safe for the atmosphere), where major emitters, both countries and industries, are held accountable for their excessive greenhouse gas pollution.


[*] STEPHANIE LONG is Climate Campaigner, Friends of the Earth Australia.

© 2004 Stephanie Long

[1] Website addresses below were accessible at 26 March 2004.

A Simms, 'Global Warm1ng· Make the Gu11ty Pay, Countries and Corporations that Belch out Carbon Emissions and Shun Kyoto Might Think again if They Were Taken to Court', New Statesman (8 December 2003)

[2] Klaus Toepfer, Statement on the Adoption of the judges' Johannesburg Principles on the Role of Law and Sustainable Development (August 2002)

[3] <>.

[4] Friends of the Earth Exxon's Climate Footprint -The Contributionon of Exxon Mobil to Climate Change since 1882 January 2000)

<http //>

[5] Anna Reynolds (CANA), Warnings from the Bush The Impacts of Climate Change on the Nature of Austrol1a <>.

[6] David Kemp, 'Australia's Approach to Climate Change' (Opening address delivered at the Beyond Kyoto: Economic Impacts and Alternative Mitigation Strategies Conference, Melbourne, 28 February 2003) <www>

[7] C Re1dy, 'Subsidies that Encourage Fossil Fuel Use 1n Austral1a' (Working paper for the lnst1turte for Sustainable Futures, 2003)


[8] United Nations Environment Programme, Global Outlook 2000 <>

[9] See the Executive Council Resolution on Climate Change and Inuit Human Rights < asp?lang=eng&num=244>


[11] <>.

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