Greenhouse Gas Emissions, “Event Attribution” and Locus Standi in Foreign Courts

Article type: Other

Authors: Akhtar, Zia^{; *}

Affiliations: Ph.D. Candidate, University of Sussex, Brighton, UK

Correspondence: [*] Corresponding author. E-mail: [email protected].

Abstract: The liability of multinational entities that have caused greenhouse gas emissions through their extraction activities in the fossil fuel industry has pushed climate change on to the international agenda. Those corporations now face challenges from litigants who have initiated negligence or nuisance actions for breach of duty of care. Suits against individual corporations are now possible due to the development of attribution science that can register the extent of each liability. Litigants from third-world countries have to satisfy locus standi in bringing claims which is difficult to establish in some jurisdictions. For example, in Lliuya v. RWE, (Az. 2 O 285/15, OLG Hamm) 24/1/2017, a South American farmer brought a claim in Germany against RWE-AG, Germany’s largest electricity producer, to challenge the effects of greenhouse gas emissions from its plant in Peru. This paper asks: Is it possible for foreign litigants to bring a private tort action against the defendant corporation that has allowed greenhouse gas emissions, in that corporation’s domestic courts, and to surmount the obstacle of locus standi? It concludes that it is possible for litigants from developing countries to litigate effectively because the foreign courts’ statutory protections, such as the doctrine of separation of powers or political rights doctrine can be overcome if climate litigation is viewed as a human rights matter. The prospects of success of litigants has increased by the impact of event attribution science that can quantify the extent of private actor liability in climate change.

Keywords: Greenhouse gas emissions, tort liability, political question doctrine, public nuisance, locus standi, event attribution

DOI: 10.3233/EPL-200233

Journal: Environmental Policy and Law, vol. 50, no. 4-5, pp. 309-323, 2020