Toppling modern-day Goliaths in the fight against climate polluters
In climate litigation in the Philippines against 47 large corporations, a Greenpeace legal team showed that big polluters can be held morally and legally responsible for climate change.
Greenpeace activists hold a banner during a protest at an oil refinery in Batangas, south of Manila, Philippines, 21 February 2018. Greenpeace activists put up banners at Shell's oil refinery in Batangas, calling them to take responsibility for contributing to climate change. EPA/MARK R. CRISTINO
This article is a part of OGR's Litigating the Climate Emergency series on how human rights and strategic litigation might best be leveraged in the climate action movements.
Nearly six years ago, I took a leap of faith and left my litigation career in a reputable law firm in the Philippines to embark on a new journey into the non-profit sector—uncharted territory for someone who mostly handled cases for corporate clients. I soon found myself working with Greenpeace Philippines as its legal advisor. This eventually led me to represent 13 other non-profit organizations and 18 individuals, mostly in the frontlines of climate-impacted areas, boldly fighting against the 47 biggest carbon polluting companies in the world, such as Shell, Chevron, ExxonMobil, and BP.
One of the biggest hurdles we have had was a novel case, the first case of its kind in the world tackling the responsibility of big polluters on the interdependent issues of climate change and human rights. This case was in an important but unusual venue—the Commission on Human Rights of the Philippines instead of a court—whose jurisdiction was repeatedly assailed by the opposing parties. In addition, the respondents (47 fossil fuel and cement companies) are headquartered outside the Philippines and have business activities around the world.
A powerful sling
The founding stone of our case was Richard Heede’s groundbreaking research, which showed that approximately two-thirds of all carbon dioxide and methane emissions from fossil fuel and cement sources since the Industrial Revolution can be traced to the production activities of the world’s 90 largest oil, gas, coal, and cement entities, 47 of which were investigated upon by the Commission. Significantly, investor-owned big polluting companies are responsible for 21.4% of all anthropogenic CO2 from 1751 to 2016.
A study by a team of researchers and scientists from the Union of Concerned Scientists, Climate Accountability Institute, and Oxford University, led by Dr. Brenda Ekwurzel, confirms Heede’s findings that significant amount of emissions could be traced to these big polluting companies. But the team went further by specifically quantifying proportional increases in atmospheric CO2, global mean surface temperature, and global sea-level from emissions traced to these big polluters.
The big polluters’ early knowledge and active involvement in science should have led them to seek ways to mitigate and prevent carbon emissions from their products.
These two peer-reviewed studies by well-known and respected scientists, among other evidence presented during the investigation, showed the legal and moral responsibility of the 47 big polluting companies for climate-related harms that endangered the rights of Filipinos.
We refused to accept a “new normal” intentionally peddled by the big polluters. The climate crisis Filipinos are forced to live with and face on a daily basis is more than our individual responsibility. It is a result of deliberate decisions made by the polluting companies, which had early notice and actual knowledge of the harms brought by their operations and products for at least five decades.
The big polluters’ early knowledge and active involvement in science should have led them to seek ways to mitigate and prevent carbon emissions from their products. Instead, they continued with their dangerous business-as-usual stance. If this is not unlawful behavior, then we need to redefine the concepts of accountability and justice.
Facing the goliaths
During the three long years before public hearings commenced, we found allies in national and international climate science, legal, and policy experts who helped strengthen our case and embolden the Commission, which could have dismissed the case for its novelty, to proceed with the national inquiry without fear or favor.
A case of first impression—in which the interrelation of climate change and human rights issues had never been presented before—always has its challenges. We were fortunate to get bold community witnesses to testify to human rights harms they personally suffered as a result of the fossil fuel companies’ activities, national experts to validate these claims, and international experts to triangulate the testimonies, science, and jurisprudence.
In the end, what we had were not just legal arguments to mount and surmount legal challenges of arguing something new; we had fundamental proof that no amount of corporate denial and greenwashing could refute. But we had to change the narrative that big polluters could not be held morally and legally responsible for climate change. We had to refute the assumption that the same laws that helped them operate could protect them from the consequences of their actions and inactions that violate human rights.
Not even the location of most of the big polluters could get us to put down our sling. Choosing the Commission on Human Rights as a venue was strategic, as it is the best legal body to hear such an important and novel case, due to its flexibility and ability to take on complex matters. We were fortunate to have the Philippine Constitution on our side, mandating the Commission to investigate all forms of human rights violations involving Filipinos wherever they may be situated.
A prelude to victory?
During COP 25 in Madrid, the focal Commissioner of the national inquiry, Commissioner Roberto Cadiz, gave an early indication of the findings in the case: that big polluters cannot only be found legally and morally liable for harms linked to climate change but that, in circumstances involving obstruction, deception, or fraud, the relevant criminal intent may exist to hold them accountable under both civil and criminal laws. To put this in context, fossil fuel companies that decided to sell fossil fuels at levels they knew would cause harm, and misleadingly promoted unchecked fossil fuel use, face a very real risk of being held accountable under civil and, possibly, criminal law.
The body of evidence compiled and the Commission’s findings will be useful for future litigants seeking to hold fossil fuel companies accountable for the impacts of climate change and force the rapid and just phase-out of coal, oil, and gas. Courts, administrative tribunals, and regulatory bodies will now be able to build on what the Commission has accomplished. And based on domestic laws and contexts, fossil fuel companies can be held liable for climate-related harms, especially in countries that have existing national practice on corporate accountability using human rights laws.
While we wait for the release of the Commission’s final report on the national inquiry, which is set to be issued soon, this statement indicates a possible victory for climate justice and humanity, and a milestone towards greater accountability of these polluting companies.
Hasminah Dimaporo Paudac is a lawyer by profession, an environmental advocate and development worker by vocation, and a frustrated artist by inclination.