Speaker 1: Hello, and welcome back to Drilled. I'm Amy Westerbild. This
Speaker 1: is season fourteen Obstruction. We have been talking each week
Speaker 1: to the authors who have edited and contributed to a big, new,
Speaker 1: giant collection of peer viewed research on climate obstruction. It's
Speaker 1: from the Climate Social Science Network at Brown University and
Speaker 1: it's called Climate Obstruction a Global Assessment. For the past
Speaker 1: eleven episodes, we've looked at what climate obstruction actually looks
Speaker 1: like in different parts of the world, all the different
Speaker 1: tactics that are being used to different people and industries
Speaker 1: that are using them, why it works so well, all
Speaker 1: of those things. In these next two and last two
Speaker 1: episodes of the season, we're looking at what efforts have
Speaker 1: been made to push back on obstruction and what has
Speaker 1: actually worked. So this is really interesting and exciting because
Speaker 1: we're now looking at peer reviewed research on what actually
Speaker 1: works to stop obstruction, which is new research, and frankly,
Speaker 1: I'm kind of surprised that there's even enough of it
Speaker 1: to make for two whole chapters. Those chapters are focused
Speaker 1: on two key types of efforts, litigation and activism. Today
Speaker 1: we are starting with litigation, so there are hundreds of
Speaker 1: court cases all over the world targeting polluting companies and
Speaker 1: industries from a bunch of different ankles. And today I'm
Speaker 1: joined by Joanna Setzer from the London School of Economics
Speaker 1: to walk through what those strategies are and what is working.
Speaker 1: That conversation is coming up after this quick break.
Speaker 2: My name is Joanna Setzer, Associate Professor at the Grantham
Speaker 2: Research Institute at the London schol Economics.
Speaker 1: What was the idea for doing this work in the
Speaker 1: first place? Why are we talking about litigation? Great?
Speaker 2: So well, if you think about this book, it's such
Speaker 2: a broad set of angles that are covered, and that's
Speaker 2: why I think it's a really important contribution. So what
Speaker 2: I see our chapter and the law more broadly is
Speaker 2: able to do. It's able to do a quiet revolution.
Speaker 2: So I think I see law and the state as
Speaker 2: countering this organized obstruction. And then we see also how
Speaker 2: obstructors might also use law to fight back. So it's
Speaker 2: a complex one. And we wrote this chapter together with
Speaker 2: Grace and Ben and several other contributing authors. The way
Speaker 2: we went about that was mapping these three big leavers
Speaker 2: that show how law can puncture. The playbook of delis
Speaker 2: obstruction and the three leavers are regulation, litigation, and government investigations.
Speaker 2: So we go one by one and there's lots of
Speaker 2: connection between them and the other chapters.
Speaker 1: This chapter and the one on activism feel like the okay,
Speaker 1: so what can we do about it? Chapters? And I
Speaker 1: think helpful for people to know that there are things
Speaker 1: that can be knowne That are being done and it's
Speaker 1: not all just a one way thing. So in addition
Speaker 1: to governments, what are the other type like groups of
Speaker 1: people or types of people who are taking these actions
Speaker 1: that you mentioned?
Speaker 2: Yeah, so well, the actors that are taking this action
Speaker 2: are very much a reflection of the very multifaceted group
Speaker 2: of actors that is part of climate obstruction and of
Speaker 2: the efforts to fight it. So it's a whole ecosystem, right.
Speaker 2: You have the fossil fuel producers and the trade groups.
Speaker 2: You have the aligned sectors, pr firms, finance, political actors,
Speaker 2: media and lawyers and jos and of course the government.
Speaker 2: So all of these are involved in either litigation or legislation.
Speaker 2: So I think when I give some examples, you will
Speaker 2: see that. And again, the fact that law can be
Speaker 2: used both to obstruct and to counter obstruction is a
Speaker 2: reflection of this variety of actors. The other thing that
Speaker 2: I think it's important with legal responses is that you
Speaker 2: can only have legal responses if you have evidence. And
Speaker 2: therefore the legal response is a reflection of the evidence
Speaker 2: that is available. And a lot of this evidence is
Speaker 2: produced by the science, so attribution science, and also by
Speaker 2: the documents that show where the obstruction took place. So
Speaker 2: the legal response depends on the investigation and often even
Speaker 2: in the digation by journalists to produce the evidence. So
Speaker 2: if we think about regulation and legislation, there are different
Speaker 2: functions that legislation and regulation have to counter obstruction. The
Speaker 2: first one is the most direct, I think probably obvious one,
Speaker 2: which is you pass a law to determine controls, so
Speaker 2: direct emissions, standards, targets, pricing, all of this, we understand
Speaker 2: are also ways through which the law can fight or
Speaker 2: counter obstruction. Because the moment that you set a clear target,
Speaker 2: a clear pricing mechanism, clear standard, you create a clarity
Speaker 2: that then actors have to respond. Of course, in turn,
Speaker 2: I'm going to always probably have to bring that other side.
Speaker 2: In turn, you will have some heavy pushback against laws
Speaker 2: and policies that set those targets. But we have a
Speaker 2: lot of also academic evidence that passing legislation is the
Speaker 2: most robust way to set intentions but also the actual targets,
Speaker 2: and that has resulted in reduction of emissions. So legislation
Speaker 2: that sets targets is the most obvious one. But then
Speaker 2: other ways in which legislation and regulation are important are
Speaker 2: to deal with the issue of misinformation and transparency. So
Speaker 2: we have several examples of legislation that deal with greenwashing,
Speaker 2: that establish disclosure duties or rules for advertisements and even
Speaker 2: what we call regulatory shaming. And the chapter brings several
Speaker 2: examples of national agencies that have penalties and that will
Speaker 2: expose firms for misleading claims, and also competition and consumer
Speaker 2: authorities that will point to, for instance, claims or equald
Speaker 2: design that are vague, or carbon neutral offsets that are
Speaker 2: not substantiated. And then finally, through law you can also
Speaker 2: try to deal with conflicts of interest. So we know
Speaker 2: that there is strong lobbying and issues such as revolving
Speaker 2: doors and how both in the domestic context but also internationally.
Speaker 2: We know now of how many lobbyists attend UNS, Triple
Speaker 2: C meetings cops for instance, and through lawmaking. Through regulation,
Speaker 2: you can also address these and minimize the ways and
Speaker 2: how often such conflicts of interest and lobbying will take place.
Speaker 1: Okay, can we talk a little bit about timeline and
Speaker 1: just sort of the evolution of litigation in particular. So
Speaker 1: you mentioned this in the chapter, and we've definitely covered
Speaker 1: this before too, that there was sort of this early
Speaker 1: batch of cases in early two thousands and then not
Speaker 1: absolutely the thing, but not much happening until this recent
Speaker 1: explosion in the last decade. So I'd love to have
Speaker 1: you talk a little bit about how many cases we're
Speaker 1: talking about and what are the things that have led
Speaker 1: to so many more cases being filed in the last
Speaker 1: decade or so.
Speaker 2: Yes, definitely, well, litigation is a very visible response to
Speaker 2: climate obstruction. And if we think in terms of numbers
Speaker 2: of cases, the Saban Center at Columbian Diversity collects all
Speaker 2: the litigation that is climate specific, and there are over
Speaker 2: three thousand cases around the world in sixty countries. So
Speaker 2: there's now a really large number of climate specific cases,
Speaker 2: and these will deal with the problem of obstruction in
Speaker 2: different ways. So if you think about the first wave
Speaker 2: of cases in the US that dealt with that, were
Speaker 2: brought against the carbon majors and seeking compensation. Those were
Speaker 2: all unsuccessful and it took time. And when I say
Speaker 2: it took time, it took also back to the issue
Speaker 2: of evidence. There was a need for more robust evidence
Speaker 2: and developments in law, and also in other countries, the
Speaker 2: law carried on developing for us to find ourselves in
Speaker 2: this moment that we are now, where we haven't seen
Speaker 2: yet one successful case that has obtained damages from these companies,
Speaker 2: not so far, and the group of cases that we
Speaker 2: have now is distinctively different and I would say closer
Speaker 2: to get that than the first wave. So what we
Speaker 2: have now is we have cases that are built upon
Speaker 2: the arguments that these companies have historically deceived consumers. So
Speaker 2: it's really interesting to see in the US how the
Speaker 2: argument of deception obstruction forms the basis for cities and
Speaker 2: states to seek compensation. So we have now around thirty
Speaker 2: cases brought by states and cities and tribes that allege
Speaker 2: that oil majors and trade groups they knew they misled,
Speaker 2: and they delayed, and by doing this they have worsening
Speaker 2: the harm and the adaptation costs. This is very unique
Speaker 2: in the US, so in other countries. The basis for
Speaker 2: such compensation cases tends to be more on the emissions themselves,
Speaker 2: not so much on the misleading on the obstruction. So
Speaker 2: the US cases make they bring this issue of obstruction
Speaker 2: at the center of why. As a result of that,
Speaker 2: we have the problem that we have now And these
Speaker 2: cases now have survived years of the companies trying to
Speaker 2: remove them from courts, and we have, for instance, the
Speaker 2: Honolulu case moved into phases of discovery and trial, so
Speaker 2: it's getting closer. Again, we haven't had a successful case
Speaker 2: seeking compensation, but they will be quite diverse. Also across
Speaker 2: these several cases either focusing on public nuisance or fraud
Speaker 2: or consumer liability. There's even a couple of cases that
Speaker 2: are based on racketeer. So the reco act and what
Speaker 2: it might be of these compensation cases is that we'll
Speaker 2: see trillions, billions of dollars potentially these companies having to
Speaker 2: pay not just because of the damages that they caused
Speaker 2: to the climate system, but also because they deceived and
Speaker 2: misled the public and shareholders. So this is one type
Speaker 2: of litigation that is very visible. But it's also important
Speaker 2: that not all litigation that is relevant for this issue
Speaker 2: of obstruction is of this type. So there are other
Speaker 2: examples that have already seen success. And here we have
Speaker 2: the climate washing cases, right the core of climate washing.
Speaker 2: Greenwashing is misleading information is attempts to obstruct to an extent,
Speaker 2: and here we have many hundreds of cases that have
Speaker 2: brought the or challenged carbon neutral flights or fossil fuels
Speaker 2: that are marked as clean. And then also going beyond
Speaker 2: the carbon majors, you have cases against banks or also
Speaker 2: there are examples against the agriculture sector. So it's much
Speaker 2: more varied the types of actors against who these claims
Speaker 2: are brought, and they are trying to get either some
Speaker 2: civil penalty or a corrective statement. So address obstruction from
Speaker 2: this angle of you've lied, you have to repair that lie,
Speaker 2: and we've seen a really high rate of success also
Speaker 2: compared to other types of cases in climate washing.
Speaker 1: Can I actually have you talked a little bit about
Speaker 1: attribution science too, and the role that has played in
Speaker 1: strengthening some of these cases. How has that like kind
Speaker 1: of come into the litigation Mecht?
Speaker 2: Yes, So attribution science has been a critically important part
Speaker 2: of climate cases, particularly these that seek compensation. So the
Speaker 2: issue there was that with governments. To an extent, it's
Speaker 2: easier to file a case against the government because governments
Speaker 2: have duties before, because they've scienced to the Paris Agreement,
Speaker 2: because they have duties of care that are established through legislation.
Speaker 2: And that's quite different from corporates who don't have commitments
Speaker 2: to Paris. They don't have obligations often to reduce emissions
Speaker 2: through legislation. And then moreover, also the fact that it
Speaker 2: is in legal terms, it's not only necessary to demonstrate
Speaker 2: that a company has emitted, but you also have to
Speaker 2: demonstrate the damage. And how do you do that. Well,
Speaker 2: the way you can do that is precisely through attribution science.
Speaker 2: So attribution science is this science that will connect the
Speaker 2: increase emissions and the result of those emissions, therefore to
Speaker 2: what extent those emissions have increased the severity of extreme
Speaker 2: weather events, and then attribute that to specific sources. So
Speaker 2: that is absolutely critical in legal terms, because you wouldn't
Speaker 2: be able to ask Xon or Shell, any company to
Speaker 2: pay unless you can demonstrate that a they've emitted and
Speaker 2: how much, and b to what extent those emissions have
Speaker 2: contributed to that specific damage. And what's interesting is that
Speaker 2: attribution science was taking place anyway, because there are so
Speaker 2: many scientists that were working on that, because it's an
Speaker 2: important scientific question, and what was missing was how to
Speaker 2: translate those findings into the litigation, into the filings and
Speaker 2: in a way that is sufficient proof for courts to
Speaker 2: be able to consider that as evidence. And this is
Speaker 2: what we're seeing now. In the last few years, there
Speaker 2: was a really interesting paper that was published by Rupert
Speaker 2: Sewers Smith and others showing that actually there was an
Speaker 2: evidentiary gap, that's the state of the art science that
Speaker 2: existed already at the time they published the paper was
Speaker 2: not reflected in the litigation, which suggests that even the
Speaker 2: cases at the time could have done better if they
Speaker 2: had engaged with the state of the art science. And
Speaker 2: this has changed because the lawyers are now better qualified
Speaker 2: and they are paying more attention and really putting a
Speaker 2: lot of effort into understanding the science. And at the
Speaker 2: same time, the scientists they realized that there was an
Speaker 2: opportunity to make their research useful and applies, and therefore
Speaker 2: they started really understanding in what ways they could present
Speaker 2: that those findings that they would have anyway, but in
Speaker 2: ways that could be understood by courts and understood by
Speaker 2: that language that is the language of law. And then
Speaker 2: this is all now what we're seeing now, and therefore
Speaker 2: we have yet to understand what is going to be
Speaker 2: the the use how this will impact the findings of
Speaker 2: courts and experts in these cases. But we are definitely
Speaker 2: closer thanks to the science and to this understanding of
Speaker 2: how to apply the science, we're closer to seeing this
Speaker 2: attribution being established not only through the academic papers but
Speaker 2: also through courts.
Speaker 1: That's so interesting. Okay, you mentioned in the chapter that
Speaker 1: you know, most of this litigation was focused on the
Speaker 1: Global North for a long time, but now there's been
Speaker 1: an increase in cases in the Global South. Can you
Speaker 1: talk about that a little bit. What is litigation looking
Speaker 1: like in Global South countries?
Speaker 2: Yeah, so it's true that in general it took longer
Speaker 2: for countries in the Global South to start filing cases,
Speaker 2: and we can of course explore why, But the most
Speaker 2: obvious reasons is that it's quite expensive to file a
Speaker 2: case and you need that expertise to understand the science
Speaker 2: issues at stake. So it took a while for the
Speaker 2: first cases to be filed in the Global South compared
Speaker 2: to the number of cases we were already seeing in
Speaker 2: the US and Australia, but in the last ten years
Speaker 2: there's been a really sharp increase and the majority of
Speaker 2: cases have been filed in the last five years in
Speaker 2: the Global South, with countries such as Brazil, and we
Speaker 2: don't have a full account of how many. But in
Speaker 2: China also cases the number of cases dealing with climate
Speaker 2: issues has grown, but we haven't analyzed there are more
Speaker 2: than five hundred cases, for instance. That's the court, the
Speaker 2: Supreme People's Court of China has already mentioned that they
Speaker 2: are looking into but we haven't yet looked. So the
Speaker 2: Global South has this both issue of coming a bit
Speaker 2: later and that we still have to understand better and
Speaker 2: get hold of what this group of cases are. But
Speaker 2: the ones that we know of they both reflect some
Speaker 2: of these trends in the Global North. So you see
Speaker 2: cases seeking compensation with the caveat that those cases are
Speaker 2: not a US city and state filing a case against
Speaker 2: a company, you know, a major oil company in the US.
Speaker 2: We're here talking about individuals and communities in the Global
Speaker 2: South filing cases against companies in courts in the Global North.
Speaker 2: So there is this transnational angle that is fascinating that
Speaker 2: you see in some of this litigation. One of the
Speaker 2: best examples is the case of Saulu Luya, the proven
Speaker 2: farmer who files a case against the energy giant or
Speaker 2: WE in Germany. So this case has been recently dismissed,
Speaker 2: but it got all the way to the evidentuary phase.
Speaker 2: The judges looked into the evidence, into the attribution science,
Speaker 2: and while they found that there was not enough evidence
Speaker 2: to demonstrate that Saul's house wasn't at sufficient risk from
Speaker 2: the melting glacier flooding the house, it did confirm that
Speaker 2: in principle that responsibility would be possible. So again it's
Speaker 2: a matter of time until the next case where the
Speaker 2: individual bringing the lawsuit, for instance, lives closer to where
Speaker 2: that flood would have happened, could be successful. So interesting
Speaker 2: developments in this litigation dealing with damages in the South.
Speaker 2: And we have still ongoing cases such as one that
Speaker 2: was brought by a group of Islanders in Indonesia against
Speaker 2: the cement giant Home SIM in Switzerland, and we are
Speaker 2: still waiting for that case to be decided. And then
Speaker 2: you have also lots of other cases that will address
Speaker 2: issues around greenwashing and misleading offsetting, and also cases that
Speaker 2: will deal with permitting. So the world of climate litigation
Speaker 2: in the South is evolving in parallel, but also with
Speaker 2: some really important decisions where you've seen already courts in Brazil,
Speaker 2: in Indonesia and in South Africa giving decisions that protected
Speaker 2: either climate regulation or challenged the governments for being not
Speaker 2: implementing existing legislation or also to implement adaptation policies that
Speaker 2: were not being implemented. Just to give a few examples.
Speaker 2: Fascinating and then I didn't mention, sorry, in the global South,
Speaker 2: but then it's more to it that part of the investigations.
Speaker 2: So it's one of the examples that we discussed quite
Speaker 2: a lot in the chapter of then not legislation or litigation,
Speaker 2: but government investigations. There's a good example from the South,
Speaker 2: but maybe I can leave it for when we get
Speaker 2: to the investigations.
Speaker 3: The Phililippines, right, yeah, yeah, I'm going to ask you
Speaker 3: about that, Okay, So I want to talk to you
Speaker 3: about the international courts and the role that they play,
Speaker 3: and especially I know that this chapter.
Speaker 1: Was written way before the ICJ ruling came out, but
Speaker 1: I'm curious to hear your take on you know the
Speaker 1: importance that that ruling might have on litigation in general
Speaker 1: and like on some of the cases that are underway. So, yeah,
Speaker 1: what role do the international courts play in general? And
Speaker 1: then how important is this ICG ruling?
Speaker 2: Well, it's a big question and it's very recent, right,
Speaker 2: It was only in July twenty five that the International
Speaker 2: Courts of Justice, the ICJ, issued its first ever advisory
Speaker 2: opinion on climate change. So specifically, the court was looking
Speaker 2: at whether trees, whether states had obligations to address climate
Speaker 2: change and under international law. And what is very obvious
Speaker 2: and very important already is that there's a conclusion that
Speaker 2: states have duties to address climate change, not only because
Speaker 2: they have to follow the Paris Agreement, but also because
Speaker 2: there are so many other laws and obligations under international
Speaker 2: law and human rights that make them then obliged to
Speaker 2: address climate change. And the second step is that not
Speaker 2: only they have that obligation, but that if they failed
Speaker 2: to act, they could be exposed to legal risk. Now,
Speaker 2: one of the first reactions that people had when looking
Speaker 2: at this ICG Advisor opinion was whether it would only
Speaker 2: apply to states. And now we're already seeing many scholars
Speaker 2: clarifying that, of course that's not the case. That's well
Speaker 2: the icg's Advice your opinion response to a question about
Speaker 2: the obligations of states. The moment that states have that obligation,
Speaker 2: it really trickles down into consequences that will affect the
Speaker 2: major emitters. So just for example, if a state is
Speaker 2: giving issuing a permit for new oil and gas, that
Speaker 2: is part of what this advisor your opinion is about.
Speaker 2: So it will affect the major emitters, at least indirectly,
Speaker 2: but quite directly as well. And it might also shape
Speaker 2: the future of legislation of what the next NDCs will
Speaker 2: be about, because there is this clear obligation for NDCs
Speaker 2: to be ambitious. And it might and likely will affect
Speaker 2: the future of litigation because you have this signal from
Speaker 2: the highest court in the world that international law is
Speaker 2: converging and that countries are expected to act. So the
Speaker 2: consequences are really huge. It's extremely important, Advisory opinion, that
Speaker 2: we are only starting to understand all its consequences, and
Speaker 2: what is most importantly is that we will start also
Speaker 2: seeing that reflected, So for instance, we will see how
Speaker 2: it's going to be considered and affect the cop negotiations
Speaker 2: now in December and the NDCs and so on. So
Speaker 2: it's still a bit speculative how we're going to see
Speaker 2: those impacts, but they are very likely to be observable
Speaker 2: and to increase the legal risks for countries and for corporations.
Speaker 1: Okay, so we've already talked about a couple of really
Speaker 1: interesting cases, but I'm curious for your take on, you know,
Speaker 1: what are the cases that you're following right now or
Speaker 1: that you think are really important for people to kind
Speaker 1: of have on their radar at the moment.
Speaker 2: So we already discussed some of these cases that are
Speaker 2: seeking compensation, and of course they are important, but it's
Speaker 2: been many years that we're waiting for something there. I
Speaker 2: think there are other cases that are more eminent and
Speaker 2: that I'm very interested in, and maybe cases that haven't
Speaker 2: received so much attention. And so one type of case
Speaker 2: that I've been particularly interested in following are these different
Speaker 2: types of cases seeking damages, So cases based on this
Speaker 2: idea of polluter space, but that are not like the
Speaker 2: compensation claims that we see in the US that seek
Speaker 2: compensation for historical omissions. They seek compensations for climate damages
Speaker 2: as they happen. And so let me just give you
Speaker 2: an example. To the Strait in Brazil, there are now
Speaker 2: a few hundreds of cases that have asked for individuals
Speaker 2: or companies that have committed deforestation illegal deforestation, to pay
Speaker 2: for climate damages. And the way they do that is
Speaker 2: by demonstrating that this area of forest that was burned,
Speaker 2: and you have the science by burning you have x
Speaker 2: amount of emissions, and those emissions in the market would
Speaker 2: cost x dollars per ton, and you multiply one by
Speaker 2: the other and you get to an amount that has
Speaker 2: It's pretty robust in terms of methodology, and while it
Speaker 2: might not be a huge amount in the millions and billions,
Speaker 2: it's an amount that is already painful enough to get
Speaker 2: these companies to consider carefully or individuals what the benefits
Speaker 2: are of burning the forest or emitting, let's say, if
Speaker 2: it's you're talking about a thermal coal plant emitting beyond
Speaker 2: what you've been authorized. So what I like seeing is
Speaker 2: these creative cases that might look into something that is
Speaker 2: more specific, so one activity, but by doing that you're
Speaker 2: creating something bigger. And you know, another example are the
Speaker 2: cases here in the UK where despite a very conservative
Speaker 2: generally conservative judiciary and difficult, expensive to litigate country. You
Speaker 2: see how one case that was challenged, one specific project
Speaker 2: for new oil and gas that was challenged on the
Speaker 2: basis that the companies hadn't calculated the emissions resulting from
Speaker 2: the burning of oil in down the line, so Scope three.
Speaker 2: By doing that, by challenging that hadn't been calculated and informed,
Speaker 2: it has allowed many other developments in the UK, much
Speaker 2: more significant new areas of oil and gas to be challenged.
Speaker 2: So it's this combination of using sometimes just one specific,
Speaker 2: smaller case that you win, and by doing that creating
Speaker 2: an impact that is why, and that puts that challenges
Speaker 2: the whole social license for oil and gas in a country.
Speaker 2: So these are a few examples, and as I said,
Speaker 2: I think we still have to understand better what's happening
Speaker 2: in China. There is a whole world of litigation there
Speaker 2: being brought by public prosecutors. The courts are preparing themselves,
Speaker 2: Judges are doing training and trainings and studying the science.
Speaker 2: So it won't take long for us to see thousands
Speaker 2: of cases also where you will see the courts interfering
Speaker 2: in activities that are highly polluting. But I think back
Speaker 2: to the issue of obstruction, which is of course the
Speaker 2: object of our chapter. It's important to understand also how
Speaker 2: these legal strategies have been increasingly used by companies to
Speaker 2: obstruct protesters or angels or even scientists. And we have
Speaker 2: a tendency to focus on the cases that are to
Speaker 2: promote climate aligned action and change, but it's also important
Speaker 2: and we put this as an important question for research
Speaker 2: and investigation to take place where there is also understanding
Speaker 2: of how companies and governments. In the US government now
Speaker 2: is a clear example of using litigation, using legislation to
Speaker 2: stop action, to stop investigations, to stop litigation. And we
Speaker 2: have to therefore have this full understanding of how law
Speaker 2: is used in all directions to understand risks and also
Speaker 2: prepare for situations where you will have such type of
Speaker 2: we call slap litigation so strategical litigation against public participation
Speaker 2: or also arbitration claims brought by companies against states. So
Speaker 2: have the full picture is necessary to understand how to
Speaker 2: stop obstruction, but also where further obstruction might come.
Speaker 1: Speaking of which you have this case study about the
Speaker 1: US and looking at you know, barriers to regulatory and
Speaker 1: litigation efforts other than the ones you just touched on.
Speaker 1: Are there any other what are some of the other
Speaker 1: barriers that you're seeing in the US that are like
Speaker 1: helping to inform this, like how do we prepare for
Speaker 1: obstruction actually using legislative and judicial tools against climate action?
Speaker 2: So okay, let me start with in terms of slabs.
Speaker 2: It's really be interesting to understand that this is both
Speaker 2: growing but also there are ways in which regulation can
Speaker 2: protect citizens and organizations, right, and so we see for
Speaker 2: instance in the U, in the European Union, the EU
Speaker 2: has adopted an anti slab directive, so it's quite recent,
Speaker 2: it's from twenty twenty four, and this directive aims at
Speaker 2: protecting public interest defenders and what does it will then
Speaker 2: enable the early dismissal of what could be an unfounded
Speaker 2: claim and protect citizens from abusive claimants. But using that
Speaker 2: now we are so it's pending. But green Peace after
Speaker 2: it's suffered this really terrifying lawsuit in the North Dakota
Speaker 2: Court that green Peace was ordered to pay over six
Speaker 2: hundred something million dollars in damages for supporting protests against
Speaker 2: the Dakota Access Pipeline. Green Peace brought a case in
Speaker 2: the EU using this directive. So it reminds us that
Speaker 2: whereas the litigation can be stage for this battle from
Speaker 2: all sides, and that you end up having this really
Speaker 2: risky dependence on what a jury or what a court,
Speaker 2: what one judge will decide. By having legislation that protects citizens,
Speaker 2: you have a much safer, broader protection in place. So
Speaker 2: the U has many examples like that of still being
Speaker 2: able to pass legislation that will protect the interests of
Speaker 2: public defenders and then if you extend to disclaiming in
Speaker 2: other protections more broadly.
Speaker 1: Yeah, I know, it'll be interesting to see what happens
Speaker 1: with that.
Speaker 2: And you did an amazing investigation of that case. Of
Speaker 2: course I listened to all your episodes. I'm a big fan.
Speaker 2: I thought it was excellent. How of course I read
Speaker 2: this case from the court documents and what legislation is
Speaker 2: being used, but also to have that story told from
Speaker 2: what the individual's experience and the unjustice that was so
Speaker 2: patient there is so important. So yeah, absolutely important to
Speaker 2: your work.
Speaker 1: I really love it. Thank you, thank you. Yeah, I know,
Speaker 1: I just was so shocked that they were not allowing
Speaker 1: any recording or anything in the courtroom, so it was like, wow, Okay,
Speaker 1: so if we're not there, we're really not going to
Speaker 1: know what's happening in this case, you know, And it
Speaker 1: was so egregious. I think it really shook our reporter, Ellien.
Speaker 1: I mean, she's like a criminal justice reporter and has
Speaker 1: reported on activist movements and surveillance and all that stuff.
Speaker 1: So it's not like she is naive about abuses of
Speaker 1: the criminal justice system or the courts. But she came
Speaker 1: back from that being like, wow, like I don't have
Speaker 1: any faith at all in the justice system.
Speaker 2: I think losing faith in the justice system is something
Speaker 2: we want to avoid because when nothing works, you still
Speaker 2: should have that option. And you see, okay didn't. It
Speaker 2: was a terrifying result there in North Dakota, which was
Speaker 2: I think also not completely surprising. But then you have
Speaker 2: a higher court, you can go to the EU. There
Speaker 2: are so many options, and that's what's I think you
Speaker 2: can always have some hope when it comes to the
Speaker 2: law that there will be a court, there will be
Speaker 2: a jurisdiction where that message will be understood.
Speaker 1: Yeah, okay, So shifting gears a little bit. I want
Speaker 1: to talk about the regulatory side of the legal question,
Speaker 1: and have you kind of run down. What are some
Speaker 1: of the regulatory levers that can be pulled to deal
Speaker 1: with climate obstruction, to prevent it as supposed to punish
Speaker 1: it later.
Speaker 2: So in the chapter we discuss in addition to some
Speaker 2: of the legislation and the litigation, we speak about government
Speaker 2: investigations and the advantage of these investigations is that they
Speaker 2: can move faster than courts and they can also produce
Speaker 2: evidence that then can be for used in other instances.
Speaker 2: So we look closer at three examples, one in the Philippines,
Speaker 2: one in the US, and one in Europe where investigations
Speaker 2: have been used directly looking into the issue of obstruction.
Speaker 2: The case in the Philippines is really interesting because we
Speaker 2: have their the Philippines Commission on Human Rights, which is
Speaker 2: a body that is an investigatory body, doing this investigation
Speaker 2: on the as a consequence of the terrible hurricane that
Speaker 2: took place, hearing survivals, hearing experts and scientists, also inviting
Speaker 2: the companies to speak, and very few companies spoke, but
Speaker 2: they did invite all the companies and what they did
Speaker 2: was through this really thorough investigation on the human rights
Speaker 2: harms of corporate conduct, they concluded that the carbon majors
Speaker 2: had engaged in of station and obstruction. So this becomes
Speaker 2: in itself a case that is backed up by huge
Speaker 2: amounts of evidentary material that others have been able to
Speaker 2: use as a demonstration of the obstruction. And there is
Speaker 2: a very detailed description testimony of how the companies that
Speaker 2: were investigated were obstructing the historically the science and policy
Speaker 2: on climate. And then the other two examples that we
Speaker 2: use and in the chapter are one in the US
Speaker 2: actually in twenty twenty one and twenty twenty two, where
Speaker 2: a series of subpoenas and hearings revealed that there's a
Speaker 2: delay strategy that to expand oil and gas, and it
Speaker 2: makes it clear that also it's again and clean energy investment.
Speaker 2: And what this investigation does it really helps shifting that
Speaker 2: political space, right. You see that even if it's just
Speaker 2: an inquiry, it shows quite quickly with robust evidence that
Speaker 2: that situation is taking place, and then others can follow
Speaker 2: with that. And finally we looked at an investigation by
Speaker 2: the European Parliament. This was a few years ago already
Speaker 2: in twenty nineteen, where there was really public spotlight on
Speaker 2: denial and corporate messaging with the politics of transparency becoming
Speaker 2: very clear, and that in itself motivated the European Parliament
Speaker 2: to further legislate. And that's again an example of how
Speaker 2: an investigation then also can motivate new legislation, better legislation
Speaker 2: that will increase accountability and improve transparency, and by doing
Speaker 2: that avoiding abstraction.
Speaker 1: Awesome. Can I have you define greenwashing and climate washing
Speaker 1: and then talk about what are some of the regulatory
Speaker 1: possibilities for dealing with those two problems? Sure?
Speaker 2: So, we usually use green washing and climate washing a
Speaker 2: bit interchangeably. In general, what we mean is examples of
Speaker 2: when the public has been misled the public being general,
Speaker 2: public investors, or even regulators about climate impacts, plans, or progress.
Speaker 2: So when it's specific about misleading on climate issues, we
Speaker 2: tend to talk about climate washing, whereas when it's misleading
Speaker 2: about green in general, we speak about green washing. But overall,
Speaker 2: greenwashing climate washing are short terms to define the misleading
Speaker 2: of public by corporates or also by the government. They
Speaker 2: are quite similar, but climate washing tends to be used
Speaker 2: when it's more specific about misleading the public, investors, or
Speaker 2: regulated about the climate impacts, and green washing is broader
Speaker 2: when it's misleading about any green credentials? Got it?
Speaker 1: And what are the sorts of regulations that can be
Speaker 1: passed to deal with this? I mean, I know that
Speaker 1: these things often become the basis of litigation claims, But
Speaker 1: what are the things that can be done to put
Speaker 1: guardrails on or maybe prevent climate and green washing ahead
Speaker 1: of time?
Speaker 4: Yeah? So, well, there are several needs and regulations that
Speaker 4: exist to protect and empower consumers and investors to prevent
Speaker 4: green washing, and.
Speaker 2: These tend to be found in many countries. That's why
Speaker 2: it's also been an area where we've seen so much litigation,
Speaker 2: because most countries have some law or met chanism to
Speaker 2: protect consumers from misleading any sort of lying. You have
Speaker 2: less legislation that is specific about greenwashing, and even less
Speaker 2: legislation that is specific about climate washing, but there's usually
Speaker 2: at least some protection through consumer law through anti fraud
Speaker 2: law that will be potentially used to stop falls or
Speaker 2: misleading advertisement. Now, whether you need that specific legislation that
Speaker 2: is only dealing with climate washing is a question that
Speaker 2: is discussed. Some say that would be helpful because there
Speaker 2: are some technicalities about carbon offsetting and how you announce
Speaker 2: your net zero and whether you're counting on technologies that
Speaker 2: don't exist for your net zero pledges. And some would
Speaker 2: argue that in order to fully protect consumers from this
Speaker 2: type of false or misleading advertisement, you would need some
Speaker 2: specific legislation. And then in the meantime, while that doesn't exist,
Speaker 2: we can still rely on the general consumer protection laws
Speaker 2: that will be available. And what's also quite good in
Speaker 2: this case is that there are two more advantages. One
Speaker 2: is that usually the evidence needed for these cases is
Speaker 2: not so complex. So if a company claims that they
Speaker 2: are investing heavily on renewables and you have on their books,
Speaker 2: they will publish themselves that they invest zero zero something percent.
Speaker 2: You can make that argument quite easily. And then also
Speaker 2: another advantage is that in some countries you might not
Speaker 2: need to bring a judicial case to a court. There
Speaker 2: are also some administrative regulatory agencies and bodies that will
Speaker 2: deal with misleading information, and these tend to quite specialized
Speaker 2: and quicker, so you might have quicker results in stopping
Speaker 2: greenwashing and misleading through these routes.
Speaker 1: You touch on this in the chapter two, but I
Speaker 1: feel like it's becoming a big issue. But how do
Speaker 1: you deal with the fact that there is this increasing
Speaker 1: push to claim that like any effort to deal with
Speaker 1: greenwashing or climate denial or climate washing is censorship. And
Speaker 1: where is that line between you know, protecting free speech
Speaker 1: and holding people accountable for spreading misleading information.
Speaker 2: Yeah, that's a very difficult part of the chapter and
Speaker 2: one that in itself, you know, you could have a
Speaker 2: whole book about that. So some core tensions that we identify,
Speaker 2: and this one between speech and deception is one where
Speaker 2: on one hand, you need and you have have robust
Speaker 2: protections for speech, and these are important and they coexist
Speaker 2: with this longstanding authority to regulate misleading. So where courts
Speaker 2: draw that line is what we're seeing now, And there's
Speaker 2: a whole margin of subjectivity of uncertainty against but it's
Speaker 2: just the fact that you don't want to lose those
Speaker 2: protections for free speech and at the same time you
Speaker 2: don't want to allow any misleading claim to be made.
Speaker 2: So that's a really good example of maybe what is
Speaker 2: the place how do you mediate those things? Well, I
Speaker 2: think courts have a really important role in drawing that line.
Speaker 2: So it's one of those that I think it's just
Speaker 2: you can't not have that tension, and it confirms the
Speaker 2: importance of specialized bodies or courts in resolving.
Speaker 1: I think that we're going to see in the US
Speaker 1: a Citizens United type claim around the liability cases. I've
Speaker 1: been saying that for a while, and like it's moving
Speaker 1: in that direction. I mean, that's the main argument that
Speaker 1: they're pushing. Is this idea that because falsehoods were told
Speaker 1: in the service of shaping policy, that they're protected political speech,
Speaker 1: and all the First Amendment attorneys I've talked to think
Speaker 1: that argument is going to win, which is really scary
Speaker 1: because then you end up in a situation where, like
Speaker 1: I mean, the Supreme Court in the US right now
Speaker 1: is a joke. So it's a scary time to think about,
Speaker 1: like a court in a major developed country affirming that
Speaker 1: lying about climate change is protected speech. I'm just curious,
Speaker 1: like what you think about the impact that that would
Speaker 1: have on potentially other litigation around misleading claims.
Speaker 2: Yes, you know, I think there's something interesting that each one,
Speaker 2: let's say, opposing views on this will see themselves as
Speaker 2: the owner of the truth. Right, So you have this
Speaker 2: really crazy conversation where you could see that someone who
Speaker 2: is completely against climate protections or even challenging climate science,
Speaker 2: will very much agree with someone who is a climate scientist,
Speaker 2: and protecting climate policy is on one issue, which is, well,
Speaker 2: we all have the right to say what we think.
Speaker 2: The protection for free speech is absolutely important. And you
Speaker 2: know they will both say that they are doing that right.
Speaker 2: And so it's a very complex situation because that's what
Speaker 2: free speech is to an extent. And this is what
Speaker 2: I was saying about drawing the line is how courts
Speaker 2: will deal with what is political advocusy, what is paid lobbying,
Speaker 2: what is ultimately what is backed up by robust science.
Speaker 2: And this is where I think we are very lucky
Speaker 2: that we have the IPCC. In other areas, you don't
Speaker 2: have a world effort earth of bringing thousands of scientists
Speaker 2: who agree on the level of certainty of the state
Speaker 2: of the art of the science right what other areas
Speaker 2: that exist, Not like not any other area you would
Speaker 2: have that. So I find that when we get that
Speaker 2: really unresolvable in principle moment where both claim the truth
Speaker 2: and maybe you know both truly believe that they have
Speaker 2: the truth both sides, then you go to the science
Speaker 2: and and it's all there in one place. The IPCC scientists.
Speaker 2: They spent they spent years reading paper by paper consolidating,
Speaker 2: and it's not that they are making new analysis, right,
Speaker 2: They're just knowing what exists. And it's science that has
Speaker 2: been peer reviewed, that comes from the leading universities, that
Speaker 2: has been you know, published in journals. So it can't
Speaker 2: get better than that. And what then? The last challenge
Speaker 2: of this story is that you will have to get
Speaker 2: the courts to go through the science and understand what
Speaker 2: is being said. So it will be in many of
Speaker 2: these instances that the decision will have to be made
Speaker 2: by judges that will have to engage with the IPCC science.
Speaker 2: But if they do, the answer is there. So I
Speaker 2: do have hope that these issues around free speech will
Speaker 2: be resolved by robust science that already exists.
Speaker 1: That's it for this time. Make sure you're subscribed so
Speaker 1: you don't miss an episode. You can find more on
Speaker 1: this season, including transcripts and lots of related articles and
Speaker 1: background information on our website at drilled dot Media. You
Speaker 1: can also sign up for our newsletter there. Our producers
Speaker 1: for this season are Martin Saltz Uswick and Peter duff.
Speaker 1: Our theme song is Bird in the Hand, by Foreign I.
Speaker 1: Our cover art is by Matthew Fleming. Our First Amendment
Speaker 1: Attorney is James Wheaton with the First Amendment Project. The
Speaker 1: show was created, written, and reported by me Amy Westervelp.
Speaker 1: Thanks for listening and see you next time.