Transcript Liability for climate change-related damage in

Liability for Climate Change-Related
Damage in Domestic Courts:
Claims for Compensation
by Elena Kosolapova
Centre for Environmental Law
University of Amsterdam
Outline:
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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 GMC
California 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.))
• Kivalina
Native 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:
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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
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Challenges at the interstate level:
Attribution, causation, retroactivity &
standing PLUS
Breach of an international obligation
Competent courts
Compensation amounts
DECLARATORY RELIEF?
Questions?
Comments?