How Litigation Works to Fight Climate Obstruction

it's called Climate Obstruction a Global Assessment. For the past eleven episodes, we've looked at what climate obstruction actually looks like in different parts of the world, all the different tactics that are being used to different people and industries that are using them, why it works so well, all of those things. In these next two and last two episodes of the season, we're looking at what efforts have been made to push back on obstruction and what has

actually worked. So this is really interesting and exciting because we're now looking at peer reviewed research on what actually works to stop obstruction, which is new research, and frankly, I'm kind of surprised that there's even enough of it to make for two whole chapters. Those chapters are focused on two key types of efforts, litigation and activism. Today we are starting with litigation, so there are hundreds of court cases all over the world targeting polluting companies and

industries from a bunch of different ankles. And today I'm joined by Joanna Setzer from the London School of Economics to walk through what those strategies are and what is working. That conversation is coming up after this quick break.

Grace and Ben and several other contributing authors. The way we went about that was mapping these three big leavers that show how law can puncture. The playbook of delis obstruction and the three leavers are regulation, litigation, and government investigations. So we go one by one and there's lots of connection between them and the other chapters.

So I think when I give some examples, you will see that. And again, the fact that law can be used both to obstruct and to counter obstruction is a reflection of this variety of actors. The other thing that I think it's important with legal responses is that you can only have legal responses if you have evidence. And therefore the legal response is a reflection of the evidence that is available. And a lot of this evidence is produced by the science, so attribution science, and also by

the documents that show where the obstruction took place. So the legal response depends on the investigation and often even in the digation by journalists to produce the evidence. So if we think about regulation and legislation, there are different

functions that legislation and regulation have to counter obstruction. The first one is the most direct, I think probably obvious one, which is you pass a law to determine controls, so direct emissions, standards, targets, pricing, all of this, we understand are also ways through which the law can fight or counter obstruction. Because the moment that you set a clear target, a clear pricing mechanism, clear standard, you create a clarity

that then actors have to respond. Of course, in turn, I'm going to always probably have to bring that other side. In turn, you will have some heavy pushback against laws and policies that set those targets. But we have a lot of also academic evidence that passing legislation is the most robust way to set intentions but also the actual targets, and that has resulted in reduction of emissions. So legislation

that sets targets is the most obvious one. But then other ways in which legislation and regulation are important are to deal with the issue of misinformation and transparency. So we have several examples of legislation that deal with greenwashing, that establish disclosure duties or rules for advertisements and even

what we call regulatory shaming. And the chapter brings several examples of national agencies that have penalties and that will expose firms for misleading claims, and also competition and consumer authorities that will point to, for instance, claims or equald design that are vague, or carbon neutral offsets that are not substantiated. And then finally, through law you can also

try to deal with conflicts of interest. So we know that there is strong lobbying and issues such as revolving doors and how both in the domestic context but also internationally. We know now of how many lobbyists attend UNS, Triple C meetings cops for instance, and through lawmaking. Through regulation, you can also address these and minimize the ways and how often such conflicts of interest and lobbying will take place.

explosion in the last decade. So I'd love to have you talk a little bit about how many cases we're talking about and what are the things that have led to so many more cases being filed in the last decade or so.

different ways. So if you think about the first wave of cases in the US that dealt with that, were brought against the carbon majors and seeking compensation. Those were all unsuccessful and it took time. And when I say it took time, it took also back to the issue

of evidence. There was a need for more robust evidence and developments in law, and also in other countries, the law carried on developing for us to find ourselves in this moment that we are now, where we haven't seen yet one successful case that has obtained damages from these companies, not so far, and the group of cases that we have now is distinctively different and I would say closer to get that than the first wave. So what we have now is we have cases that are built upon

the arguments that these companies have historically deceived consumers. So it's really interesting to see in the US how the argument of deception obstruction forms the basis for cities and states to seek compensation. So we have now around thirty cases brought by states and cities and tribes that allege that oil majors and trade groups they knew they misled, and they delayed, and by doing this they have worsening the harm and the adaptation costs. This is very unique

in the US, so in other countries. The basis for such compensation cases tends to be more on the emissions themselves, not so much on the misleading on the obstruction. So the US cases make they bring this issue of obstruction at the center of why. As a result of that, we have the problem that we have now And these cases now have survived years of the companies trying to remove them from courts, and we have, for instance, the Honolulu case moved into phases of discovery and trial, so

it's getting closer. Again, we haven't had a successful case seeking compensation, but they will be quite diverse. Also across these several cases either focusing on public nuisance or fraud or consumer liability. There's even a couple of cases that

are based on racketeer. So the reco act and what it might be of these compensation cases is that we'll see trillions, billions of dollars potentially these companies having to pay not just because of the damages that they caused to the climate system, but also because they deceived and misled the public and shareholders. So this is one type of litigation that is very visible. But it's also important that not all litigation that is relevant for this issue

of obstruction is of this type. So there are other examples that have already seen success. And here we have the climate washing cases, right the core of climate washing. Greenwashing is misleading information is attempts to obstruct to an extent, and here we have many hundreds of cases that have brought the or challenged carbon neutral flights or fossil fuels that are marked as clean. And then also going beyond the carbon majors, you have cases against banks or also

there are examples against the agriculture sector. So it's much more varied the types of actors against who these claims are brought, and they are trying to get either some civil penalty or a corrective statement. So address obstruction from this angle of you've lied, you have to repair that lie, and we've seen a really high rate of success also compared to other types of cases in climate washing.

to Paris. They don't have obligations often to reduce emissions through legislation. And then moreover, also the fact that it is in legal terms, it's not only necessary to demonstrate that a company has emitted, but you also have to demonstrate the damage. And how do you do that. Well, the way you can do that is precisely through attribution science.

So attribution science is this science that will connect the increase emissions and the result of those emissions, therefore to what extent those emissions have increased the severity of extreme weather events, and then attribute that to specific sources. So that is absolutely critical in legal terms, because you wouldn't be able to ask Xon or Shell, any company to pay unless you can demonstrate that a they've emitted and how much, and b to what extent those emissions have

contributed to that specific damage. And what's interesting is that attribution science was taking place anyway, because there are so many scientists that were working on that, because it's an important scientific question, and what was missing was how to translate those findings into the litigation, into the filings and in a way that is sufficient proof for courts to be able to consider that as evidence. And this is

what we're seeing now. In the last few years, there was a really interesting paper that was published by Rupert Sewers Smith and others showing that actually there was an evidentiary gap, that's the state of the art science that existed already at the time they published the paper was not reflected in the litigation, which suggests that even the cases at the time could have done better if they

had engaged with the state of the art science. And this has changed because the lawyers are now better qualified and they are paying more attention and really putting a

lot of effort into understanding the science. And at the same time, the scientists they realized that there was an opportunity to make their research useful and applies, and therefore they started really understanding in what ways they could present that those findings that they would have anyway, but in ways that could be understood by courts and understood by

that language that is the language of law. And then this is all now what we're seeing now, and therefore we have yet to understand what is going to be the the use how this will impact the findings of courts and experts in these cases. But we are definitely closer thanks to the science and to this understanding of how to apply the science, we're closer to seeing this attribution being established not only through the academic papers but also through courts.

issues at stake. So it took a while for the first cases to be filed in the Global South compared to the number of cases we were already seeing in the US and Australia, but in the last ten years there's been a really sharp increase and the majority of cases have been filed in the last five years in the Global South, with countries such as Brazil, and we

don't have a full account of how many. But in China also cases the number of cases dealing with climate issues has grown, but we haven't analyzed there are more than five hundred cases, for instance. That's the court, the Supreme People's Court of China has already mentioned that they are looking into but we haven't yet looked. So the Global South has this both issue of coming a bit later and that we still have to understand better and

get hold of what this group of cases are. But the ones that we know of they both reflect some of these trends in the Global North. So you see cases seeking compensation with the caveat that those cases are not a US city and state filing a case against a company, you know, a major oil company in the US. We're here talking about individuals and communities in the Global South filing cases against companies in courts in the Global North. So there is this transnational angle that is fascinating that

you see in some of this litigation. One of the best examples is the case of Saulu Luya, the proven farmer who files a case against the energy giant or WE in Germany. So this case has been recently dismissed, but it got all the way to the evidentuary phase.

The judges looked into the evidence, into the attribution science, and while they found that there was not enough evidence to demonstrate that Saul's house wasn't at sufficient risk from the melting glacier flooding the house, it did confirm that in principle that responsibility would be possible. So again it's a matter of time until the next case where the individual bringing the lawsuit, for instance, lives closer to where

that flood would have happened, could be successful. So interesting developments in this litigation dealing with damages in the South. And we have still ongoing cases such as one that was brought by a group of Islanders in Indonesia against the cement giant Home SIM in Switzerland, and we are still waiting for that case to be decided. And then you have also lots of other cases that will address issues around greenwashing and misleading offsetting, and also cases that

will deal with permitting. So the world of climate litigation in the South is evolving in parallel, but also with some really important decisions where you've seen already courts in Brazil, in Indonesia and in South Africa giving decisions that protected either climate regulation or challenged the governments for being not implementing existing legislation or also to implement adaptation policies that were not being implemented. Just to give a few examples.

Fascinating and then I didn't mention, sorry, in the global South, but then it's more to it that part of the investigations. So it's one of the examples that we discussed quite a lot in the chapter of then not legislation or litigation, but government investigations. There's a good example from the South, but maybe I can leave it for when we get to the investigations.

change and under international law. And what is very obvious and very important already is that there's a conclusion that states have duties to address climate change, not only because they have to follow the Paris Agreement, but also because there are so many other laws and obligations under international law and human rights that make them then obliged to address climate change. And the second step is that not only they have that obligation, but that if they failed

to act, they could be exposed to legal risk. Now, one of the first reactions that people had when looking at this ICG Advisor opinion was whether it would only apply to states. And now we're already seeing many scholars clarifying that, of course that's not the case. That's well the icg's Advice your opinion response to a question about the obligations of states. The moment that states have that obligation, it really trickles down into consequences that will affect the

major emitters. So just for example, if a state is giving issuing a permit for new oil and gas, that is part of what this advisor your opinion is about. So it will affect the major emitters, at least indirectly, but quite directly as well. And it might also shape the future of legislation of what the next NDCs will be about, because there is this clear obligation for NDCs

to be ambitious. And it might and likely will affect the future of litigation because you have this signal from the highest court in the world that international law is converging and that countries are expected to act. So the

consequences are really huge. It's extremely important, Advisory opinion, that we are only starting to understand all its consequences, and what is most importantly is that we will start also seeing that reflected, So for instance, we will see how it's going to be considered and affect the cop negotiations

now in December and the NDCs and so on. So it's still a bit speculative how we're going to see those impacts, but they are very likely to be observable and to increase the legal risks for countries and for corporations.

received so much attention. And so one type of case that I've been particularly interested in following are these different types of cases seeking damages, So cases based on this idea of polluter space, but that are not like the compensation claims that we see in the US that seek compensation for historical omissions. They seek compensations for climate damages as they happen. And so let me just give you

an example. To the Strait in Brazil, there are now a few hundreds of cases that have asked for individuals or companies that have committed deforestation illegal deforestation, to pay

for climate damages. And the way they do that is by demonstrating that this area of forest that was burned, and you have the science by burning you have x amount of emissions, and those emissions in the market would cost x dollars per ton, and you multiply one by the other and you get to an amount that has It's pretty robust in terms of methodology, and while it might not be a huge amount in the millions and billions, it's an amount that is already painful enough to get

these companies to consider carefully or individuals what the benefits are of burning the forest or emitting, let's say, if it's you're talking about a thermal coal plant emitting beyond what you've been authorized. So what I like seeing is these creative cases that might look into something that is more specific, so one activity, but by doing that you're creating something bigger. And you know, another example are the cases here in the UK where despite a very conservative

generally conservative judiciary and difficult, expensive to litigate country. You see how one case that was challenged, one specific project for new oil and gas that was challenged on the basis that the companies hadn't calculated the emissions resulting from the burning of oil in down the line, so Scope three. By doing that, by challenging that hadn't been calculated and informed, it has allowed many other developments in the UK, much more significant new areas of oil and gas to be challenged.

So it's this combination of using sometimes just one specific, smaller case that you win, and by doing that creating an impact that is why, and that puts that challenges the whole social license for oil and gas in a country. So these are a few examples, and as I said, I think we still have to understand better what's happening in China. There is a whole world of litigation there

being brought by public prosecutors. The courts are preparing themselves, Judges are doing training and trainings and studying the science. So it won't take long for us to see thousands of cases also where you will see the courts interfering in activities that are highly polluting. But I think back to the issue of obstruction, which is of course the object of our chapter. It's important to understand also how these legal strategies have been increasingly used by companies to

obstruct protesters or angels or even scientists. And we have a tendency to focus on the cases that are to promote climate aligned action and change, but it's also important and we put this as an important question for research and investigation to take place where there is also understanding of how companies and governments. In the US government now is a clear example of using litigation, using legislation to

stop action, to stop investigations, to stop litigation. And we have to therefore have this full understanding of how law is used in all directions to understand risks and also prepare for situations where you will have such type of we call slap litigation so strategical litigation against public participation or also arbitration claims brought by companies against states. So have the full picture is necessary to understand how to stop obstruction, but also where further obstruction might come.

It's really be interesting to understand that this is both growing but also there are ways in which regulation can protect citizens and organizations, right, and so we see for instance in the U, in the European Union, the EU has adopted an anti slab directive, so it's quite recent, it's from twenty twenty four, and this directive aims at protecting public interest defenders and what does it will then enable the early dismissal of what could be an unfounded

claim and protect citizens from abusive claimants. But using that now we are so it's pending. But green Peace after it's suffered this really terrifying lawsuit in the North Dakota Court that green Peace was ordered to pay over six hundred something million dollars in damages for supporting protests against the Dakota Access Pipeline. Green Peace brought a case in

the EU using this directive. So it reminds us that whereas the litigation can be stage for this battle from all sides, and that you end up having this really risky dependence on what a jury or what a court, what one judge will decide. By having legislation that protects citizens,

you have a much safer, broader protection in place. So the U has many examples like that of still being able to pass legislation that will protect the interests of public defenders and then if you extend to disclaiming in other protections more broadly.

So it's not like she is naive about abuses of the criminal justice system or the courts. But she came back from that being like, wow, like I don't have any faith at all in the justice system.

a higher court, you can go to the EU. There are so many options, and that's what's I think you can always have some hope when it comes to the law that there will be a court, there will be a jurisdiction where that message will be understood.

The case in the Philippines is really interesting because we have their the Philippines Commission on Human Rights, which is a body that is an investigatory body, doing this investigation on the as a consequence of the terrible hurricane that took place, hearing survivals, hearing experts and scientists, also inviting the companies to speak, and very few companies spoke, but they did invite all the companies and what they did was through this really thorough investigation on the human rights

harms of corporate conduct, they concluded that the carbon majors had engaged in of station and obstruction. So this becomes in itself a case that is backed up by huge amounts of evidentary material that others have been able to use as a demonstration of the obstruction. And there is a very detailed description testimony of how the companies that were investigated were obstructing the historically the science and policy

on climate. And then the other two examples that we use and in the chapter are one in the US actually in twenty twenty one and twenty twenty two, where a series of subpoenas and hearings revealed that there's a delay strategy that to expand oil and gas, and it makes it clear that also it's again and clean energy investment. And what this investigation does it really helps shifting that

political space, right. You see that even if it's just an inquiry, it shows quite quickly with robust evidence that that situation is taking place, and then others can follow with that. And finally we looked at an investigation by the European Parliament. This was a few years ago already in twenty nineteen, where there was really public spotlight on denial and corporate messaging with the politics of transparency becoming very clear, and that in itself motivated the European Parliament

to further legislate. And that's again an example of how an investigation then also can motivate new legislation, better legislation that will increase accountability and improve transparency, and by doing that avoiding abstraction.

about green in general, we speak about green washing. But overall, greenwashing climate washing are short terms to define the misleading of public by corporates or also by the government. They are quite similar, but climate washing tends to be used when it's more specific about misleading the public, investors, or regulated about the climate impacts, and green washing is broader when it's misleading about any green credentials? Got it?

misleading advertisement. Now, whether you need that specific legislation that is only dealing with climate washing is a question that is discussed. Some say that would be helpful because there are some technicalities about carbon offsetting and how you announce your net zero and whether you're counting on technologies that don't exist for your net zero pledges. And some would argue that in order to fully protect consumers from this type of false or misleading advertisement, you would need some

specific legislation. And then in the meantime, while that doesn't exist, we can still rely on the general consumer protection laws that will be available. And what's also quite good in this case is that there are two more advantages. One is that usually the evidence needed for these cases is not so complex. So if a company claims that they are investing heavily on renewables and you have on their books, they will publish themselves that they invest zero zero something percent.

You can make that argument quite easily. And then also another advantage is that in some countries you might not need to bring a judicial case to a court. There are also some administrative regulatory agencies and bodies that will deal with misleading information, and these tend to quite specialized and quicker, so you might have quicker results in stopping greenwashing and misleading through these routes.

with this longstanding authority to regulate misleading. So where courts draw that line is what we're seeing now, And there's a whole margin of subjectivity of uncertainty against but it's just the fact that you don't want to lose those protections for free speech and at the same time you don't want to allow any misleading claim to be made. So that's a really good example of maybe what is

the place how do you mediate those things? Well, I think courts have a really important role in drawing that line. So it's one of those that I think it's just you can't not have that tension, and it confirms the importance of specialized bodies or courts in resolving.

they're pushing. Is this idea that because falsehoods were told in the service of shaping policy, that they're protected political speech, and all the First Amendment attorneys I've talked to think that argument is going to win, which is really scary because then you end up in a situation where, like I mean, the Supreme Court in the US right now is a joke. So it's a scary time to think about, like a court in a major developed country affirming that

lying about climate change is protected speech. I'm just curious, like what you think about the impact that that would have on potentially other litigation around misleading claims.

The protection for free speech is absolutely important. And you know they will both say that they are doing that right. And so it's a very complex situation because that's what free speech is to an extent. And this is what I was saying about drawing the line is how courts will deal with what is political advocusy, what is paid lobbying, what is ultimately what is backed up by robust science. And this is where I think we are very lucky

that we have the IPCC. In other areas, you don't have a world effort earth of bringing thousands of scientists who agree on the level of certainty of the state of the art of the science right what other areas that exist, Not like not any other area you would have that. So I find that when we get that really unresolvable in principle moment where both claim the truth and maybe you know both truly believe that they have the truth both sides, then you go to the science

and and it's all there in one place. The IPCC scientists. They spent they spent years reading paper by paper consolidating, and it's not that they are making new analysis, right, They're just knowing what exists. And it's science that has been peer reviewed, that comes from the leading universities, that has been you know, published in journals. So it can't

get better than that. And what then? The last challenge of this story is that you will have to get the courts to go through the science and understand what is being said. So it will be in many of these instances that the decision will have to be made by judges that will have to engage with the IPCC science. But if they do, the answer is there. So I do have hope that these issues around free speech will be resolved by robust science that already exists.

Attorney is James Wheaton with the First Amendment Project. The show was created, written, and reported by me Amy Westervelp. Thanks for listening and see you next time.