WEBVTT - S14, Ep12 | How Litigation Works to Fight Obstruction 0:00:02.120 --> 0:00:05.680 Hello, and welcome back to Drilled. I'm Amy Westerbild. This 0:00:05.880 --> 0:00:12.040 is season fourteen Obstruction. We have been talking each week 0:00:12.119 --> 0:00:16.599 to the authors who have edited and contributed to a big, new, 0:00:16.880 --> 0:00:21.239 giant collection of peer viewed research on climate obstruction. It's 0:00:21.239 --> 0:00:24.319 from the Climate Social Science Network at Brown University and 0:00:24.360 --> 0:00:29.440 it's called Climate Obstruction a Global Assessment. For the past 0:00:29.600 --> 0:00:33.960 eleven episodes, we've looked at what climate obstruction actually looks 0:00:34.080 --> 0:00:36.920 like in different parts of the world, all the different 0:00:36.960 --> 0:00:40.120 tactics that are being used to different people and industries 0:00:40.159 --> 0:00:43.040 that are using them, why it works so well, all 0:00:43.080 --> 0:00:46.639 of those things. In these next two and last two 0:00:46.760 --> 0:00:50.120 episodes of the season, we're looking at what efforts have 0:00:50.200 --> 0:00:54.000 been made to push back on obstruction and what has 0:00:54.160 --> 0:00:58.320 actually worked. So this is really interesting and exciting because 0:00:58.320 --> 0:01:02.000 we're now looking at peer reviewed research on what actually 0:01:02.040 --> 0:01:07.480 works to stop obstruction, which is new research, and frankly, 0:01:07.520 --> 0:01:09.360 I'm kind of surprised that there's even enough of it 0:01:10.000 --> 0:01:15.240 to make for two whole chapters. Those chapters are focused 0:01:15.280 --> 0:01:21.120 on two key types of efforts, litigation and activism. Today 0:01:21.240 --> 0:01:24.679 we are starting with litigation, so there are hundreds of 0:01:24.800 --> 0:01:28.600 court cases all over the world targeting polluting companies and 0:01:28.680 --> 0:01:32.360 industries from a bunch of different ankles. And today I'm 0:01:32.400 --> 0:01:35.640 joined by Joanna Setzer from the London School of Economics 0:01:35.720 --> 0:01:39.400 to walk through what those strategies are and what is working. 0:01:39.920 --> 0:01:48.760 That conversation is coming up after this quick break. 0:01:58.320 --> 0:02:01.800 My name is Joanna Setzer, Associate Professor at the Grantham 0:02:01.840 --> 0:02:04.360 Research Institute at the London schol Economics. 0:02:04.920 --> 0:02:07.360 What was the idea for doing this work in the 0:02:07.400 --> 0:02:10.200 first place? Why are we talking about litigation? Great? 0:02:10.360 --> 0:02:13.840 So well, if you think about this book, it's such 0:02:14.400 --> 0:02:19.040 a broad set of angles that are covered, and that's 0:02:19.080 --> 0:02:22.280 why I think it's a really important contribution. So what 0:02:22.360 --> 0:02:26.720 I see our chapter and the law more broadly is 0:02:26.840 --> 0:02:30.360 able to do. It's able to do a quiet revolution. 0:02:30.960 --> 0:02:34.280 So I think I see law and the state as 0:02:34.919 --> 0:02:39.240 countering this organized obstruction. And then we see also how 0:02:39.400 --> 0:02:43.440 obstructors might also use law to fight back. So it's 0:02:43.480 --> 0:02:47.399 a complex one. And we wrote this chapter together with 0:02:47.600 --> 0:02:51.560 Grace and Ben and several other contributing authors. The way 0:02:51.600 --> 0:02:55.680 we went about that was mapping these three big leavers 0:02:55.960 --> 0:03:00.000 that show how law can puncture. The playbook of delis 0:03:00.280 --> 0:03:07.160 obstruction and the three leavers are regulation, litigation, and government investigations. 0:03:07.360 --> 0:03:09.880 So we go one by one and there's lots of 0:03:10.320 --> 0:03:13.239 connection between them and the other chapters. 0:03:13.840 --> 0:03:17.760 This chapter and the one on activism feel like the okay, 0:03:17.800 --> 0:03:22.000 so what can we do about it? Chapters? And I 0:03:22.000 --> 0:03:24.959 think helpful for people to know that there are things 0:03:25.000 --> 0:03:28.320 that can be knowne That are being done and it's 0:03:28.400 --> 0:03:32.200 not all just a one way thing. So in addition 0:03:32.280 --> 0:03:35.840 to governments, what are the other type like groups of 0:03:35.880 --> 0:03:39.240 people or types of people who are taking these actions 0:03:39.280 --> 0:03:40.040 that you mentioned? 0:03:40.880 --> 0:03:44.000 Yeah, so well, the actors that are taking this action 0:03:44.360 --> 0:03:48.240 are very much a reflection of the very multifaceted group 0:03:48.280 --> 0:03:51.520 of actors that is part of climate obstruction and of 0:03:51.560 --> 0:03:54.200 the efforts to fight it. So it's a whole ecosystem, right. 0:03:54.520 --> 0:03:57.880 You have the fossil fuel producers and the trade groups. 0:03:57.960 --> 0:04:04.480 You have the aligned sectors, pr firms, finance, political actors, 0:04:04.760 --> 0:04:09.680 media and lawyers and jos and of course the government. 0:04:09.760 --> 0:04:14.480 So all of these are involved in either litigation or legislation. 0:04:14.880 --> 0:04:17.080 So I think when I give some examples, you will 0:04:17.080 --> 0:04:20.479 see that. And again, the fact that law can be 0:04:20.600 --> 0:04:24.479 used both to obstruct and to counter obstruction is a 0:04:24.800 --> 0:04:28.760 reflection of this variety of actors. The other thing that 0:04:28.920 --> 0:04:32.320 I think it's important with legal responses is that you 0:04:32.360 --> 0:04:37.200 can only have legal responses if you have evidence. And 0:04:37.400 --> 0:04:41.799 therefore the legal response is a reflection of the evidence 0:04:41.839 --> 0:04:44.840 that is available. And a lot of this evidence is 0:04:44.880 --> 0:04:49.120 produced by the science, so attribution science, and also by 0:04:49.320 --> 0:04:54.840 the documents that show where the obstruction took place. So 0:04:55.080 --> 0:04:59.720 the legal response depends on the investigation and often even 0:04:59.720 --> 0:05:03.280 in the digation by journalists to produce the evidence. So 0:05:03.560 --> 0:05:08.720 if we think about regulation and legislation, there are different 0:05:08.760 --> 0:05:14.120 functions that legislation and regulation have to counter obstruction. The 0:05:14.160 --> 0:05:18.280 first one is the most direct, I think probably obvious one, 0:05:18.320 --> 0:05:22.520 which is you pass a law to determine controls, so 0:05:23.000 --> 0:05:28.960 direct emissions, standards, targets, pricing, all of this, we understand 0:05:29.080 --> 0:05:33.200 are also ways through which the law can fight or 0:05:33.360 --> 0:05:36.960 counter obstruction. Because the moment that you set a clear target, 0:05:37.120 --> 0:05:42.640 a clear pricing mechanism, clear standard, you create a clarity 0:05:43.240 --> 0:05:46.960 that then actors have to respond. Of course, in turn, 0:05:47.200 --> 0:05:51.159 I'm going to always probably have to bring that other side. 0:05:51.440 --> 0:05:56.000 In turn, you will have some heavy pushback against laws 0:05:56.000 --> 0:06:00.120 and policies that set those targets. But we have a 0:06:00.120 --> 0:06:05.520 lot of also academic evidence that passing legislation is the 0:06:05.520 --> 0:06:11.360 most robust way to set intentions but also the actual targets, 0:06:11.440 --> 0:06:16.000 and that has resulted in reduction of emissions. So legislation 0:06:16.120 --> 0:06:19.680 that sets targets is the most obvious one. But then 0:06:19.880 --> 0:06:23.280 other ways in which legislation and regulation are important are 0:06:23.360 --> 0:06:29.000 to deal with the issue of misinformation and transparency. So 0:06:29.279 --> 0:06:33.840 we have several examples of legislation that deal with greenwashing, 0:06:34.240 --> 0:06:40.000 that establish disclosure duties or rules for advertisements and even 0:06:40.360 --> 0:06:44.520 what we call regulatory shaming. And the chapter brings several 0:06:44.560 --> 0:06:49.679 examples of national agencies that have penalties and that will 0:06:49.720 --> 0:06:54.440 expose firms for misleading claims, and also competition and consumer 0:06:54.480 --> 0:06:59.839 authorities that will point to, for instance, claims or equald 0:07:00.000 --> 0:07:04.080 design that are vague, or carbon neutral offsets that are 0:07:04.520 --> 0:07:09.600 not substantiated. And then finally, through law you can also 0:07:10.160 --> 0:07:13.760 try to deal with conflicts of interest. So we know 0:07:14.000 --> 0:07:17.880 that there is strong lobbying and issues such as revolving 0:07:17.920 --> 0:07:23.440 doors and how both in the domestic context but also internationally. 0:07:23.480 --> 0:07:28.120 We know now of how many lobbyists attend UNS, Triple 0:07:28.200 --> 0:07:33.480 C meetings cops for instance, and through lawmaking. Through regulation, 0:07:34.000 --> 0:07:39.040 you can also address these and minimize the ways and 0:07:39.280 --> 0:07:43.320 how often such conflicts of interest and lobbying will take place. 0:07:43.960 --> 0:07:47.800 Okay, can we talk a little bit about timeline and 0:07:47.960 --> 0:07:53.440 just sort of the evolution of litigation in particular. So 0:07:53.760 --> 0:07:57.200 you mentioned this in the chapter, and we've definitely covered 0:07:57.200 --> 0:07:59.240 this before too, that there was sort of this early 0:07:59.320 --> 0:08:02.880 batch of cases in early two thousands and then not 0:08:03.000 --> 0:08:06.360 absolutely the thing, but not much happening until this recent 0:08:06.760 --> 0:08:09.120 explosion in the last decade. So I'd love to have 0:08:09.200 --> 0:08:11.480 you talk a little bit about how many cases we're 0:08:11.480 --> 0:08:14.600 talking about and what are the things that have led 0:08:14.760 --> 0:08:18.600 to so many more cases being filed in the last 0:08:18.880 --> 0:08:19.640 decade or so. 0:08:20.360 --> 0:08:25.120 Yes, definitely, well, litigation is a very visible response to 0:08:25.240 --> 0:08:29.640 climate obstruction. And if we think in terms of numbers 0:08:29.640 --> 0:08:35.040 of cases, the Saban Center at Columbian Diversity collects all 0:08:35.120 --> 0:08:38.880 the litigation that is climate specific, and there are over 0:08:38.920 --> 0:08:42.360 three thousand cases around the world in sixty countries. So 0:08:42.400 --> 0:08:46.640 there's now a really large number of climate specific cases, 0:08:47.200 --> 0:08:51.120 and these will deal with the problem of obstruction in 0:08:51.160 --> 0:08:55.720 different ways. So if you think about the first wave 0:08:56.040 --> 0:08:59.920 of cases in the US that dealt with that, were 0:09:00.160 --> 0:09:04.800 brought against the carbon majors and seeking compensation. Those were 0:09:05.160 --> 0:09:09.880 all unsuccessful and it took time. And when I say 0:09:09.920 --> 0:09:12.319 it took time, it took also back to the issue 0:09:12.320 --> 0:09:15.960 of evidence. There was a need for more robust evidence 0:09:16.360 --> 0:09:20.640 and developments in law, and also in other countries, the 0:09:20.720 --> 0:09:23.760 law carried on developing for us to find ourselves in 0:09:23.800 --> 0:09:26.360 this moment that we are now, where we haven't seen 0:09:26.480 --> 0:09:31.040 yet one successful case that has obtained damages from these companies, 0:09:31.559 --> 0:09:34.280 not so far, and the group of cases that we 0:09:34.320 --> 0:09:39.040 have now is distinctively different and I would say closer 0:09:39.120 --> 0:09:42.200 to get that than the first wave. So what we 0:09:42.280 --> 0:09:45.520 have now is we have cases that are built upon 0:09:45.840 --> 0:09:51.199 the arguments that these companies have historically deceived consumers. So 0:09:51.400 --> 0:09:54.200 it's really interesting to see in the US how the 0:09:54.559 --> 0:10:01.040 argument of deception obstruction forms the basis for cities and 0:10:01.160 --> 0:10:05.760 states to seek compensation. So we have now around thirty 0:10:05.840 --> 0:10:09.680 cases brought by states and cities and tribes that allege 0:10:09.720 --> 0:10:13.480 that oil majors and trade groups they knew they misled, 0:10:13.640 --> 0:10:17.000 and they delayed, and by doing this they have worsening 0:10:17.280 --> 0:10:21.280 the harm and the adaptation costs. This is very unique 0:10:21.280 --> 0:10:24.600 in the US, so in other countries. The basis for 0:10:24.760 --> 0:10:28.760 such compensation cases tends to be more on the emissions themselves, 0:10:28.800 --> 0:10:32.560 not so much on the misleading on the obstruction. So 0:10:32.600 --> 0:10:35.760 the US cases make they bring this issue of obstruction 0:10:35.880 --> 0:10:38.920 at the center of why. As a result of that, 0:10:39.200 --> 0:10:41.880 we have the problem that we have now And these 0:10:41.920 --> 0:10:45.720 cases now have survived years of the companies trying to 0:10:45.800 --> 0:10:49.560 remove them from courts, and we have, for instance, the 0:10:49.640 --> 0:10:54.280 Honolulu case moved into phases of discovery and trial, so 0:10:54.320 --> 0:10:57.760 it's getting closer. Again, we haven't had a successful case 0:10:57.800 --> 0:11:02.440 seeking compensation, but they will be quite diverse. Also across 0:11:02.520 --> 0:11:07.480 these several cases either focusing on public nuisance or fraud 0:11:07.720 --> 0:11:11.320 or consumer liability. There's even a couple of cases that 0:11:11.360 --> 0:11:15.559 are based on racketeer. So the reco act and what 0:11:15.800 --> 0:11:19.160 it might be of these compensation cases is that we'll 0:11:19.160 --> 0:11:24.600 see trillions, billions of dollars potentially these companies having to 0:11:24.640 --> 0:11:28.680 pay not just because of the damages that they caused 0:11:28.720 --> 0:11:32.920 to the climate system, but also because they deceived and 0:11:32.960 --> 0:11:37.240 misled the public and shareholders. So this is one type 0:11:37.280 --> 0:11:40.760 of litigation that is very visible. But it's also important 0:11:40.880 --> 0:11:44.800 that not all litigation that is relevant for this issue 0:11:44.800 --> 0:11:48.600 of obstruction is of this type. So there are other 0:11:48.840 --> 0:11:52.400 examples that have already seen success. And here we have 0:11:52.559 --> 0:11:56.040 the climate washing cases, right the core of climate washing. 0:11:56.080 --> 0:12:02.800 Greenwashing is misleading information is attempts to obstruct to an extent, 0:12:03.240 --> 0:12:07.000 and here we have many hundreds of cases that have 0:12:07.440 --> 0:12:13.480 brought the or challenged carbon neutral flights or fossil fuels 0:12:13.559 --> 0:12:17.840 that are marked as clean. And then also going beyond 0:12:18.120 --> 0:12:22.040 the carbon majors, you have cases against banks or also 0:12:23.000 --> 0:12:26.680 there are examples against the agriculture sector. So it's much 0:12:26.880 --> 0:12:31.439 more varied the types of actors against who these claims 0:12:31.440 --> 0:12:34.839 are brought, and they are trying to get either some 0:12:35.040 --> 0:12:41.040 civil penalty or a corrective statement. So address obstruction from 0:12:41.240 --> 0:12:45.160 this angle of you've lied, you have to repair that lie, 0:12:45.480 --> 0:12:48.480 and we've seen a really high rate of success also 0:12:48.520 --> 0:12:51.960 compared to other types of cases in climate washing. 0:12:52.360 --> 0:12:55.080 Can I actually have you talked a little bit about 0:12:55.360 --> 0:12:59.079 attribution science too, and the role that has played in 0:13:00.160 --> 0:13:03.319 strengthening some of these cases. How has that like kind 0:13:03.360 --> 0:13:05.240 of come into the litigation Mecht? 0:13:06.840 --> 0:13:12.040 Yes, So attribution science has been a critically important part 0:13:12.200 --> 0:13:17.600 of climate cases, particularly these that seek compensation. So the 0:13:17.640 --> 0:13:22.800 issue there was that with governments. To an extent, it's 0:13:22.880 --> 0:13:26.239 easier to file a case against the government because governments 0:13:26.679 --> 0:13:30.480 have duties before, because they've scienced to the Paris Agreement, 0:13:30.600 --> 0:13:34.720 because they have duties of care that are established through legislation. 0:13:35.280 --> 0:13:41.000 And that's quite different from corporates who don't have commitments 0:13:41.080 --> 0:13:45.800 to Paris. They don't have obligations often to reduce emissions 0:13:45.880 --> 0:13:50.480 through legislation. And then moreover, also the fact that it 0:13:51.480 --> 0:13:55.439 is in legal terms, it's not only necessary to demonstrate 0:13:55.559 --> 0:13:58.680 that a company has emitted, but you also have to 0:13:58.720 --> 0:14:02.160 demonstrate the damage. And how do you do that. Well, 0:14:02.240 --> 0:14:06.199 the way you can do that is precisely through attribution science. 0:14:06.520 --> 0:14:11.319 So attribution science is this science that will connect the 0:14:11.480 --> 0:14:17.400 increase emissions and the result of those emissions, therefore to 0:14:17.440 --> 0:14:22.440 what extent those emissions have increased the severity of extreme 0:14:22.520 --> 0:14:27.080 weather events, and then attribute that to specific sources. So 0:14:27.240 --> 0:14:30.840 that is absolutely critical in legal terms, because you wouldn't 0:14:30.880 --> 0:14:34.120 be able to ask Xon or Shell, any company to 0:14:34.200 --> 0:14:37.920 pay unless you can demonstrate that a they've emitted and 0:14:38.080 --> 0:14:42.000 how much, and b to what extent those emissions have 0:14:42.280 --> 0:14:46.840 contributed to that specific damage. And what's interesting is that 0:14:46.960 --> 0:14:51.400 attribution science was taking place anyway, because there are so 0:14:51.440 --> 0:14:54.880 many scientists that were working on that, because it's an 0:14:54.880 --> 0:14:58.920 important scientific question, and what was missing was how to 0:14:59.000 --> 0:15:04.680 translate those findings into the litigation, into the filings and 0:15:04.800 --> 0:15:09.440 in a way that is sufficient proof for courts to 0:15:09.520 --> 0:15:12.440 be able to consider that as evidence. And this is 0:15:12.480 --> 0:15:15.760 what we're seeing now. In the last few years, there 0:15:15.840 --> 0:15:20.440 was a really interesting paper that was published by Rupert 0:15:20.440 --> 0:15:23.720 Sewers Smith and others showing that actually there was an 0:15:23.800 --> 0:15:28.040 evidentiary gap, that's the state of the art science that 0:15:28.200 --> 0:15:30.760 existed already at the time they published the paper was 0:15:30.800 --> 0:15:35.520 not reflected in the litigation, which suggests that even the 0:15:35.560 --> 0:15:38.640 cases at the time could have done better if they 0:15:38.680 --> 0:15:42.160 had engaged with the state of the art science. And 0:15:42.240 --> 0:15:46.600 this has changed because the lawyers are now better qualified 0:15:46.680 --> 0:15:48.880 and they are paying more attention and really putting a 0:15:48.880 --> 0:15:51.920 lot of effort into understanding the science. And at the 0:15:51.960 --> 0:15:56.680 same time, the scientists they realized that there was an 0:15:56.680 --> 0:16:01.480 opportunity to make their research useful and applies, and therefore 0:16:01.560 --> 0:16:05.400 they started really understanding in what ways they could present 0:16:05.600 --> 0:16:08.680 that those findings that they would have anyway, but in 0:16:08.760 --> 0:16:11.840 ways that could be understood by courts and understood by 0:16:11.920 --> 0:16:15.680 that language that is the language of law. And then 0:16:15.800 --> 0:16:19.280 this is all now what we're seeing now, and therefore 0:16:19.640 --> 0:16:23.160 we have yet to understand what is going to be 0:16:23.280 --> 0:16:27.560 the the use how this will impact the findings of 0:16:27.720 --> 0:16:31.600 courts and experts in these cases. But we are definitely 0:16:31.880 --> 0:16:35.480 closer thanks to the science and to this understanding of 0:16:35.560 --> 0:16:38.800 how to apply the science, we're closer to seeing this 0:16:39.120 --> 0:16:43.720 attribution being established not only through the academic papers but 0:16:43.760 --> 0:16:44.960 also through courts. 0:16:45.760 --> 0:16:50.560 That's so interesting. Okay, you mentioned in the chapter that 0:16:50.800 --> 0:16:53.680 you know, most of this litigation was focused on the 0:16:53.680 --> 0:16:55.760 Global North for a long time, but now there's been 0:16:55.760 --> 0:17:00.000 an increase in cases in the Global South. Can you 0:17:00.000 --> 0:17:02.200 talk about that a little bit. What is litigation looking 0:17:02.320 --> 0:17:04.840 like in Global South countries? 0:17:05.840 --> 0:17:10.119 Yeah, so it's true that in general it took longer 0:17:10.119 --> 0:17:13.000 for countries in the Global South to start filing cases, 0:17:13.320 --> 0:17:16.920 and we can of course explore why, But the most 0:17:16.920 --> 0:17:19.680 obvious reasons is that it's quite expensive to file a 0:17:19.760 --> 0:17:23.400 case and you need that expertise to understand the science 0:17:23.520 --> 0:17:26.320 issues at stake. So it took a while for the 0:17:26.359 --> 0:17:29.880 first cases to be filed in the Global South compared 0:17:29.920 --> 0:17:31.840 to the number of cases we were already seeing in 0:17:31.880 --> 0:17:35.720 the US and Australia, but in the last ten years 0:17:35.760 --> 0:17:39.000 there's been a really sharp increase and the majority of 0:17:39.040 --> 0:17:42.480 cases have been filed in the last five years in 0:17:42.520 --> 0:17:46.320 the Global South, with countries such as Brazil, and we 0:17:46.400 --> 0:17:49.119 don't have a full account of how many. But in 0:17:49.240 --> 0:17:53.359 China also cases the number of cases dealing with climate 0:17:53.400 --> 0:17:56.800 issues has grown, but we haven't analyzed there are more 0:17:56.840 --> 0:18:00.040 than five hundred cases, for instance. That's the court, the 0:18:00.040 --> 0:18:04.200 Supreme People's Court of China has already mentioned that they 0:18:04.320 --> 0:18:07.960 are looking into but we haven't yet looked. So the 0:18:08.000 --> 0:18:11.199 Global South has this both issue of coming a bit 0:18:11.280 --> 0:18:14.919 later and that we still have to understand better and 0:18:15.000 --> 0:18:18.240 get hold of what this group of cases are. But 0:18:18.320 --> 0:18:21.960 the ones that we know of they both reflect some 0:18:22.040 --> 0:18:24.360 of these trends in the Global North. So you see 0:18:24.520 --> 0:18:29.640 cases seeking compensation with the caveat that those cases are 0:18:29.680 --> 0:18:33.600 not a US city and state filing a case against 0:18:33.640 --> 0:18:36.480 a company, you know, a major oil company in the US. 0:18:36.920 --> 0:18:41.320 We're here talking about individuals and communities in the Global 0:18:41.400 --> 0:18:46.240 South filing cases against companies in courts in the Global North. 0:18:46.520 --> 0:18:50.040 So there is this transnational angle that is fascinating that 0:18:50.520 --> 0:18:53.080 you see in some of this litigation. One of the 0:18:53.119 --> 0:18:57.240 best examples is the case of Saulu Luya, the proven 0:18:57.320 --> 0:19:01.080 farmer who files a case against the energy giant or 0:19:01.200 --> 0:19:05.200 WE in Germany. So this case has been recently dismissed, 0:19:05.680 --> 0:19:09.080 but it got all the way to the evidentuary phase. 0:19:09.600 --> 0:19:13.200 The judges looked into the evidence, into the attribution science, 0:19:13.600 --> 0:19:17.280 and while they found that there was not enough evidence 0:19:17.359 --> 0:19:22.320 to demonstrate that Saul's house wasn't at sufficient risk from 0:19:22.600 --> 0:19:27.040 the melting glacier flooding the house, it did confirm that 0:19:27.080 --> 0:19:30.840 in principle that responsibility would be possible. So again it's 0:19:30.880 --> 0:19:35.399 a matter of time until the next case where the 0:19:35.600 --> 0:19:40.399 individual bringing the lawsuit, for instance, lives closer to where 0:19:40.960 --> 0:19:45.600 that flood would have happened, could be successful. So interesting 0:19:45.640 --> 0:19:49.600 developments in this litigation dealing with damages in the South. 0:19:49.640 --> 0:19:53.000 And we have still ongoing cases such as one that 0:19:53.200 --> 0:19:58.040 was brought by a group of Islanders in Indonesia against 0:19:58.080 --> 0:20:02.400 the cement giant Home SIM in Switzerland, and we are 0:20:02.520 --> 0:20:05.640 still waiting for that case to be decided. And then 0:20:05.840 --> 0:20:09.640 you have also lots of other cases that will address 0:20:09.880 --> 0:20:15.840 issues around greenwashing and misleading offsetting, and also cases that 0:20:15.920 --> 0:20:19.480 will deal with permitting. So the world of climate litigation 0:20:19.560 --> 0:20:23.040 in the South is evolving in parallel, but also with 0:20:23.119 --> 0:20:27.760 some really important decisions where you've seen already courts in Brazil, 0:20:28.240 --> 0:20:34.200 in Indonesia and in South Africa giving decisions that protected 0:20:34.560 --> 0:20:39.080 either climate regulation or challenged the governments for being not 0:20:39.240 --> 0:20:45.840 implementing existing legislation or also to implement adaptation policies that 0:20:45.920 --> 0:20:49.119 were not being implemented. Just to give a few examples. 0:20:49.320 --> 0:20:53.560 Fascinating and then I didn't mention, sorry, in the global South, 0:20:53.560 --> 0:20:56.520 but then it's more to it that part of the investigations. 0:20:56.600 --> 0:20:59.680 So it's one of the examples that we discussed quite 0:20:59.680 --> 0:21:03.880 a lot in the chapter of then not legislation or litigation, 0:21:04.000 --> 0:21:07.000 but government investigations. There's a good example from the South, 0:21:07.040 --> 0:21:09.160 but maybe I can leave it for when we get 0:21:09.240 --> 0:21:11.080 to the investigations. 0:21:10.520 --> 0:21:13.080 The Phililippines, right, yeah, yeah, I'm going to ask you 0:21:13.119 --> 0:21:15.359 about that, Okay, So I want to talk to you 0:21:15.600 --> 0:21:19.120 about the international courts and the role that they play, 0:21:19.200 --> 0:21:21.080 and especially I know that this chapter. 0:21:20.920 --> 0:21:26.159 Was written way before the ICJ ruling came out, but 0:21:26.240 --> 0:21:28.520 I'm curious to hear your take on you know the 0:21:28.560 --> 0:21:31.800 importance that that ruling might have on litigation in general 0:21:31.840 --> 0:21:35.000 and like on some of the cases that are underway. So, yeah, 0:21:35.040 --> 0:21:39.040 what role do the international courts play in general? And 0:21:39.080 --> 0:21:43.040 then how important is this ICG ruling? 0:21:44.400 --> 0:21:47.000 Well, it's a big question and it's very recent, right, 0:21:47.040 --> 0:21:50.600 It was only in July twenty five that the International 0:21:50.640 --> 0:21:54.440 Courts of Justice, the ICJ, issued its first ever advisory 0:21:54.520 --> 0:21:58.439 opinion on climate change. So specifically, the court was looking 0:21:58.480 --> 0:22:03.359 at whether trees, whether states had obligations to address climate 0:22:03.440 --> 0:22:08.720 change and under international law. And what is very obvious 0:22:08.760 --> 0:22:12.040 and very important already is that there's a conclusion that 0:22:12.160 --> 0:22:17.600 states have duties to address climate change, not only because 0:22:17.640 --> 0:22:20.479 they have to follow the Paris Agreement, but also because 0:22:20.520 --> 0:22:24.240 there are so many other laws and obligations under international 0:22:24.280 --> 0:22:28.439 law and human rights that make them then obliged to 0:22:28.760 --> 0:22:32.199 address climate change. And the second step is that not 0:22:32.280 --> 0:22:34.960 only they have that obligation, but that if they failed 0:22:35.000 --> 0:22:40.320 to act, they could be exposed to legal risk. Now, 0:22:40.680 --> 0:22:45.080 one of the first reactions that people had when looking 0:22:45.080 --> 0:22:49.359 at this ICG Advisor opinion was whether it would only 0:22:49.440 --> 0:22:54.359 apply to states. And now we're already seeing many scholars 0:22:54.400 --> 0:22:58.040 clarifying that, of course that's not the case. That's well 0:22:58.320 --> 0:23:02.920 the icg's Advice your opinion response to a question about 0:23:02.920 --> 0:23:06.480 the obligations of states. The moment that states have that obligation, 0:23:06.840 --> 0:23:11.520 it really trickles down into consequences that will affect the 0:23:11.560 --> 0:23:15.520 major emitters. So just for example, if a state is 0:23:15.560 --> 0:23:19.919 giving issuing a permit for new oil and gas, that 0:23:20.240 --> 0:23:23.639 is part of what this advisor your opinion is about. 0:23:23.640 --> 0:23:28.800 So it will affect the major emitters, at least indirectly, 0:23:28.840 --> 0:23:32.320 but quite directly as well. And it might also shape 0:23:33.280 --> 0:23:38.280 the future of legislation of what the next NDCs will 0:23:38.320 --> 0:23:43.040 be about, because there is this clear obligation for NDCs 0:23:43.080 --> 0:23:47.960 to be ambitious. And it might and likely will affect 0:23:48.240 --> 0:23:53.400 the future of litigation because you have this signal from 0:23:53.560 --> 0:23:58.280 the highest court in the world that international law is 0:23:58.440 --> 0:24:03.080 converging and that countries are expected to act. So the 0:24:03.160 --> 0:24:09.320 consequences are really huge. It's extremely important, Advisory opinion, that 0:24:09.400 --> 0:24:13.720 we are only starting to understand all its consequences, and 0:24:14.040 --> 0:24:17.280 what is most importantly is that we will start also 0:24:17.400 --> 0:24:21.240 seeing that reflected, So for instance, we will see how 0:24:21.240 --> 0:24:25.680 it's going to be considered and affect the cop negotiations 0:24:25.720 --> 0:24:29.240 now in December and the NDCs and so on. So 0:24:29.760 --> 0:24:32.520 it's still a bit speculative how we're going to see 0:24:32.520 --> 0:24:35.919 those impacts, but they are very likely to be observable 0:24:35.960 --> 0:24:40.640 and to increase the legal risks for countries and for corporations. 0:24:41.200 --> 0:24:43.840 Okay, so we've already talked about a couple of really 0:24:43.960 --> 0:24:47.399 interesting cases, but I'm curious for your take on, you know, 0:24:47.440 --> 0:24:50.960 what are the cases that you're following right now or 0:24:51.000 --> 0:24:53.680 that you think are really important for people to kind 0:24:53.680 --> 0:24:56.040 of have on their radar at the moment. 0:24:56.400 --> 0:24:58.719 So we already discussed some of these cases that are 0:24:58.720 --> 0:25:02.840 seeking compensation, and of course they are important, but it's 0:25:02.880 --> 0:25:05.639 been many years that we're waiting for something there. I 0:25:05.640 --> 0:25:10.040 think there are other cases that are more eminent and 0:25:10.080 --> 0:25:14.080 that I'm very interested in, and maybe cases that haven't 0:25:14.119 --> 0:25:18.879 received so much attention. And so one type of case 0:25:19.040 --> 0:25:23.280 that I've been particularly interested in following are these different 0:25:23.320 --> 0:25:27.879 types of cases seeking damages, So cases based on this 0:25:28.000 --> 0:25:32.000 idea of polluter space, but that are not like the 0:25:32.040 --> 0:25:34.879 compensation claims that we see in the US that seek 0:25:34.960 --> 0:25:40.320 compensation for historical omissions. They seek compensations for climate damages 0:25:40.760 --> 0:25:42.720 as they happen. And so let me just give you 0:25:42.760 --> 0:25:45.120 an example. To the Strait in Brazil, there are now 0:25:45.440 --> 0:25:49.680 a few hundreds of cases that have asked for individuals 0:25:49.760 --> 0:25:55.359 or companies that have committed deforestation illegal deforestation, to pay 0:25:55.560 --> 0:25:59.159 for climate damages. And the way they do that is 0:25:59.240 --> 0:26:03.879 by demonstrating that this area of forest that was burned, 0:26:04.760 --> 0:26:07.800 and you have the science by burning you have x 0:26:07.800 --> 0:26:12.480 amount of emissions, and those emissions in the market would 0:26:12.520 --> 0:26:17.920 cost x dollars per ton, and you multiply one by 0:26:17.920 --> 0:26:21.399 the other and you get to an amount that has 0:26:21.200 --> 0:26:24.920 It's pretty robust in terms of methodology, and while it 0:26:25.040 --> 0:26:28.080 might not be a huge amount in the millions and billions, 0:26:28.480 --> 0:26:33.080 it's an amount that is already painful enough to get 0:26:33.600 --> 0:26:38.400 these companies to consider carefully or individuals what the benefits 0:26:38.440 --> 0:26:41.960 are of burning the forest or emitting, let's say, if 0:26:41.960 --> 0:26:46.760 it's you're talking about a thermal coal plant emitting beyond 0:26:46.880 --> 0:26:50.080 what you've been authorized. So what I like seeing is 0:26:50.119 --> 0:26:56.080 these creative cases that might look into something that is 0:26:56.119 --> 0:27:00.440 more specific, so one activity, but by doing that you're 0:27:00.480 --> 0:27:03.840 creating something bigger. And you know, another example are the 0:27:03.880 --> 0:27:07.920 cases here in the UK where despite a very conservative 0:27:08.280 --> 0:27:14.240 generally conservative judiciary and difficult, expensive to litigate country. You 0:27:14.280 --> 0:27:19.280 see how one case that was challenged, one specific project 0:27:19.600 --> 0:27:22.600 for new oil and gas that was challenged on the 0:27:22.640 --> 0:27:28.680 basis that the companies hadn't calculated the emissions resulting from 0:27:28.760 --> 0:27:31.840 the burning of oil in down the line, so Scope three. 0:27:32.600 --> 0:27:36.440