Closing the supply-side accountability gap through climate litigation

Closing the impunity gap on climate change includes making fossil fuel suppliers accountable for their emissions.



A deep sea oil rig parked inside the inlets around the protected islands of Norway's west coast. Ted McGrath/(CC BY-NC-SA 2.0)


The climate emergency requires all hands on deck. Youth are rising in protest and activism to take back their future; activists are advocating for stronger climate action; courts around the world are helping to fill the impunity gap and close convenient loopholes. This includes accountability for the supply of fossil fuels. A recent ruling from the Court of Appeals in Norway, although a loss for the co-plaintiffs, is in some respects a step in the right direction. For the first time, a court ruled that Norway, as a fossil fuels supplier, is responsible for emissions of its products outside its borders (“exported emissions”).  

Drug dealers be warned 

Echoing the words of a fictional character in Brian De Palma’s Scarface (“never get high on your own supply”), a country such as Norway can enact climate friendly policies at home while continuing to profit through fossil fuel exports.  

Indeed, the global carbon emissions from combusting fossil fuels extracted in Norway are about ten times higher than the total carbon emissions within Norway. Norway is the world’s seventh largest exporter of emissions. In 2016, then Norwegian Climate and Energy Minister proclaimed: “as long as the world needs oil and gas, we will provide it.” 

But this “drug dealer defense”—used by the fossil fuel industry often sponsored by governments to escape legal and moral responsibility—posits that the supply of climate polluting energy sources will flow anyway, even if one source is stopped. Such arguments are reinforced by the fact that in combating climate change, “domestic supply side policies are less frequently discussed, let alone pursued.”  

The Norwegian government is being sued for embarking on new exploration of fossil fuels at a time where we have found more than enough oil than we could afford to consume if we are to keep to the Paris temperature targets. In the People v. Arctic Oil case, co-plaintiffs Nature and Youth and Greenpeace Nordic (together with interveners Grandparents Climate Campaign and Friends of the Earth Norway) argue that these actions violate the right to a healthy environment entrenched in the Norwegian Constitution and contravene Norway’s responsibilities under international law.

Taking emissions after export into account means that more judiciaries could bridge this accountability gap.

Earlier this year, the Norwegian Court of Appeal ruled that the government had not infringed on the Constitutional right to a healthy environment by issuing new licenses to drill in the Arctic. Nevertheless, the Court of Appeal found that in establishing whether the government has infringed on this right, all greenhouse gas emissions from Norwegian oil exported abroad must be considered. According to the Court of Appeal, Norway is responsible for these emissions after export because there is a “clear relationship between the production and the combustion,” and because the concern for future generations necessitates it. 

Taking emissions after export into account means that more judiciaries could bridge this accountability gap. For example, in the 2006 case Gray v. Minister for Planning, an Australian federal court held that the environmental impact assessment for a coal mine failed to take into account potential greenhouse gas emissions from burning of coal by third parties, outside of the control of the coal mine proponents, because of the future release of greenhouse gases and the increase in global warming. In 2019, in the case Gloucester Resources Limited v. Minister for Planning, the court specifically held that combustion emissions from exported resources must be included in the assessment made under Australian law.  

These judgments, together with evolving science, civil society support, and developing global understanding of what human rights are at stake, are a warning to fossil fuel suppliers: it is no longer possible to evade climate justice.  

What’s next? Four lessons to take to the Norwegian Supreme Court 

As plaintiffs, civil society, supporters, and lawyers gear up for the next chapter in the fight to close the supply-side accountability gap, there are three lessons to take forward.  

        1. From Paris with love 

The Norwegian Court of Appeals found that fulfilment of the Paris Agreement target requires drastic cuts in emissions, and that “this is directly in opposition to searching for new discoveries” of oil and gas. However, the Court also found that emissions sources are not fixed and there is a political process to assess where cuts will be made. The Court did not consider the judiciary competent under a Constitutional review to do so.  

In addition, the Court of Appeal was right in pointing out that the Paris Agreement does not stand in the way of taking exported emissions into account. Stronger still—in the co-plaintiffs’ view—the Paris Agreement actually supports this finding through the principle of common but differentiated responsibilities.  

There are a few cases that already show that the Paris commitments matter and courts around the world are holding governments accountable, including the Urgenda case in the Netherlands and De Justicia case in Colombia.  

       2. There is no such thing as perfect  

The Court of Appeals in Norway accepted the proposition that any reduction of Norwegian oil supply would be replaced elsewhere. The co-plaintiffs argued that “perfect substitution” cannot be assumed. Statistics Norway found that “only half of any reduction in production volume would be replaced by production in other places.” A study done by the Stockholm Environmental Institute found that “several analyses have shown that … when global oil production increases, so do oil consumption and overall CO2 emissions.” Moreover, a study conducted by Oil Change International showed that “by failing to limit fossil fuel production on the supply side, such regions are undermining their own commitments and reinforcing incentives for the petroleum industry to continue expansion globally.” 

      3. No emission reduction is negligible  

The Court of Appeal in Norway found that emissions from oil and gas are minor when compared to global emissions. It also found that “measures to combat global emissions are—from a legal perspective—more difficult” (not noting however, that the simplest measure is to reduce supply).  

That “no reduction is negligible” is one of the key messages from the Urgenda Supreme Court judgment on the responsibility of states. The Supreme Court in Urgenda emphasized that “a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope.” A few months prior, in Gloucester Resources Limited v. Minister for Planning,  the court found that “it was not important that emissions from the mine would be a fraction of global total emissions.” 

The future is now 

UN Special Rapporteur David Boyd conducted a country visit in Norway and stated in his end of mission statement (and his final visit report) that:  

“the Norwegian paradox is that its leadership in some aspects of addressing the global climate emergency is enabled by wealth generated by a large petroleum industry. To provide international leadership on climate change—the paramount human rights challenge facing humanity today—Norway should stop exploring for additional oil and gas reserves, stop expanding fossil fuel infrastructure…”  

Addressing adaptation measures and fossil fuel demand is not enough. But we should all take inspiration from the fact that we are not alone. People all over the world have filed over 600 cases to force action and stop further fueling the climate crisis. Now is the time to close the supply-side accountability gap.

 

ORIGINALLY PUBLISHED: October 19, 2020

Michelle Jonker-Argueta, Esq. is legal counsel campaigns for Greenpeace International.


 

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