Will the climate debate end up being fought in court?

There should be political accountability when government action or inaction leads to citizens being harmed. Is there a legal case for communities affected by climate change to take their governments to court?

drought landscape
The consequences of climate change, such as food and water scarcity, can be devastating for communities. We need strong leadership from policymakers and industry for effective climate action. Image: Blanscape / Shutterstock.com

Society generally has a clear idea of what constitutes a crime, and those in positions of power are usually held to very high standards. Politicians charged with making decisions on the needs of society are held accountable for unprofessional behaviour.

New South Wales Premier Barry O’Farrell, for example, chose to resign in April over a “massive memory fail”, after initially denying he had received an expensive bottle of wine from an Australian Water Holdings executive.

Neglecting to take action can also be considered criminal. In the same way that doctors who fail to diagnose an illness may be charged with malpractice, politicians can face similar charges for failing to adequately do their jobs.

These crimes may seem more clear-cut – but what happens when it comes to accountability for environmental issues, and more specifically, climate change?

Predicting disasters and legal risk

When government action or inaction leads to the direct harm of citizens due to environmental risks and natural hazards, they should be held to account.

This logic saw residents of New Orleans sue the United States government for damages caused by flooding associated with Hurricane Katrina, after a federal judge ruled the US Army Corps of Engineers displayed gross negligence by failing to maintain a shipping channel next to a levee protecting the city.

In another case in 2009, seven scientists and civil servants were convicted of manslaughter after failing to give adequate warning of an impending earthquake in L’Aquila, Italy, that killed 309 people.

We are yet to see if and how politicians and scientists will be held accountable for increased greenhouse gas emissions leading to climate change. But a recent area of legal development is arising in this area, known as climate legal risk, defined as the risk of liability or adverse legal outcomes arising when the impacts of climate change (such as flooding, bushfire and coastal hazards) affect an organisation’s operations.

“Unacceptable impacts from predicted climate change” has been used to reject planning applications. In 2010 the Victorian Civil and Administrative Tribunal rejected a proposal to subdivide a coastal property for development due to predictions that the land would be inundated within a century. The case marked a critical point in planning law and sent an important message to coastal planning decision makers about the increasing relevance of climate-related flooding.

In another case brought to the courtrooms by environmentalist Pete Gray), the Land and Environment Court of New South Wales found that the approved expansion of the Anvil Hill Coal Mine had failed to properly assess the greenhouse gas pollution impacts of the future use of mined coal.

With the IPCC so clearly stating the need for action, there is now the very real risk that politicians, media outlets and scientists could face legal prosecution for their role in delaying action that could have saved properties, livelihoods and lives.

The most recent Intergovernmental Panel on Climate Change report paints a bleak picture of what will happen if we continue to pump greenhouse gas emissions into the atmosphere. The risks of extreme weather, droughts, floods, cyclones and marine inundations are all significantly increased.

Currently, governments and mainstream politicians that openly dispute human-caused climate change are rare. What is far more prevalent is a lack of meaningful action in government to combat it.

But with the IPCC so clearly stating the need for action, there is now the very real risk that politicians, media outlets and scientists could face legal prosecution for their role in delaying action that could have saved properties, livelihoods and lives.

A broader international criminal framework identifying destruction of ecosystems, including through increasing greenhouse gas emissions, has been developed and termed “ecocide”, though it has yet to be legislated.

Should scientists be held accountable for inaction?

As the number of climate change related extreme events increase, we need to ask who should be held accountable for them. As we saw in L’Aquila, some believe that at least some of the responsibility falls on scientists. Perhaps it is the role of scientists to ensure that climate change warnings (such as those made by the IPCC) lead to actions like evacuation of natural disaster areas and meaningful policy change.

Scientists don’t have the power to make decisions in government or society. They are funded as researchers and experts, to advance knowledge and advise our elected officials. Scientists can only control what they say, and the urgency that they attach to it; not what is done with that advice.

But, like other people, scientists can be prone to hyperbole. Scientists have been criticised for overdramatising the consequences of inaction with regards to climate change, which can be overwhelming and may lead to a paralysis of action - a situation termed “climate fatigue”.

Transforming scientific research into policy is a messy process. It requires a range of scientific, communication and change management skills, the combination of which most scientists do not possess, and perhaps should not be expected to. However as we have seen, individuals and groups can be held accountable for inaction that leads to disastrous outcomes, and neither climate scientists or policy makers are likely to get a free pass.

Avoiding lawyers at 50 paces

In most situations, legal action comes only as a last resort when all other avenues of communication have broken down. And so in the climate debate, lawyers at 50 paces may only further inflame and entrench positions.

The climate issue needs leadership, not recrimination. We need leadership from scientists who can move from proclaiming the problem into practical uptake of solutions.

Likewise, leadership is needed from elected officials, who need to start working with the scientific community they have supported to develop evidence-based policy.

We need leadership from industry, to start engaging with the climate debate. And in the run up to the United Nations Climate Summit set for September 2014 in New York and further talks in Paris next year, we need global leaders to step up to help move society to the next phase of climate action.

In the future, it will not have been enough of a defence to say that climate change inaction was a result of lack of evidence. We have the evidence and we know that we should act. If we do nothing now, future generations may take a legal perspective on our actions, or lack of them, bringing to The Hague a retrospective crime against humanity – climate negligence.

Andrew Lowe is a professor of Plant Conservation Biology at the University of Adelaide, and Stefan Caddy-Retalic is a Transect Ecologist at the University of Adelaide. This post originally appeared on The Conversation. The authors would like to acknowledge the valuable contribution of Tim Vines in discussion of the ideas behind this piece.

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