July 2018 Updates to the Climate Case Charts


Posted on July 2nd, 2018 by Romany Webb

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 111.

FEATURED CASE

California Federal Court Dismissed Oakland and San Francisco’s Climate Change Nuisance Lawsuits

On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court—which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law—rejected the cities’ attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in American Electric Power Co. v. Connecticut (AEP)) and Ninth Circuit (in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina)). The district court held that AEP and Kivalina’s displacement rule would apply to the cities’ claims even though the claims were based not on the defendants’ own greenhouse gas emissions but on their  sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori they cannot be sued for someone else’s.” The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in AEPand Kivalina—that the defendants’ actions and the resulting emissions occurred outside the U.S.—placed the cities’ claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs’ claims, such nuisance claims were “foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The court stated: “This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”  In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

The district court issued its order dismissing the cases after three of the defendants and the plaintiffs reached agreements to avoid the jurisdictional discovery ordered by the court in May. After dismissing the cases, the court issued a request that the parties submit a joint statement regarding whether it was still necessary to address the recently narrowed personal jurisdiction motions to dismiss. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. June 25, 2018).

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by Jessica Wentz

On October 9, 2017, the Tubbs Fire ripped through Sonoma County, California, destroying nearly 5,000 homes and killing 22 people. It was the most destructive wildfire in California’s history and the largest urban conflagration in the United States since the 1906 San Francisco earthquake fires. And it was only one of approximately 250 wildfires that sparked that same night in Northern California, causing a total of 44 fatalities and more than $9.4 billion in economic damages.

Now, nine months later, the process of reconstruction has begun. Some of the first homes have gone up on burned lots. Many of these lots are located in the “wildland-urban interface” – rural, forested areas on the outskirts of cities that are much more prone to wildfires. Commenters have questioned the prudency of rebuilding in these areas in light of existing fire hazard and predictions of how the warming climate will fuel more frequent and severe wildfires in the western United States.  But there are social and economic factors which are driving reconstruction despite the risk – specifically, the emotional attachment of many property owners to the place they call “home” and the fact that property values in the areas remain extremely high (with some lots listed at over $1,000,000).

     Construction begins on a house in Coffee Park (credit: Chad Surmick / Press Democrat)

 

The availability of insurance is a critical factor for rebuilding. But many areas prone to wildfire are becoming too risky to insure. As noted in a 2017 report from the California Department of Insurance, premiums and wildfire surcharges have increased significantly in the wildland-urban interface, and several major insurers have stopped writing new policies and renewing plans in areas with high wildfire risk. As insurers begin to account for climate change in their wildfire risk models, they will likely become even less willing to issue and renew policies in these areas.

At this time, insurance is still available to property owners who are rebuilding their homes in the aftermath of the fires. This may be due, in large part, to a California law which prohibits insurance companies from cancelling a policy while a primary residence is being reconstructed after a covered disaster, and requires them to renew the policy at least once following a total loss caused by a disaster (Cal. INS § 675.1). The law provides short-term protection for property owners affected by the fires, but it does not guarantee that insurance will be available in the long run. Most homeowners’ insurance policies are written for a term of only 12 months, and there are no laws in California which prohibit an insurer from refusing to renew a homeowner’s policy (apart from the one exception noted above). The bottom line is that thousands of homes may be reconstructed due to the short-term availability of insurance, only to become uninsurable in the near future.

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June 2018 Updates to the Climate Case Charts


Posted on June 11th, 2018 by Romany Webb
 2 comments  

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 110.

FEATURED CASE

Magistrate Denied Federal Government’s Motion to Stay Discovery in Young People’s Constitutional Climate Case; Government Defendants Filed Objections to Denial and Sought Judgment on Pleadings and Summary Judgment

On May 25, 2018, a magistrate judge in the federal district court for the District of Oregon denied the defendants’ motion for a protective order precluding discovery in the lawsuit against the United States, the president, and other federal defendants in which young plaintiffs assert constitutional claims based on climate change impacts. The defendants had moved for a protective order and to put a hold on discovery on the grounds that the lawsuit must necessarily proceed under the Administrative Procedure Act (APA) and therefore must be heard on the administrative record. The defendants also argued that separation of powers made discovery inappropriate. In addition, the defendants asked that the lawsuit be stayed while their motions for judgment on the pleadings and summary judgment were pending.

In the order denying the protective order, the magistrate judge said the plaintiffs’ complaint did not contain an APA claim and that the defendants “have no ability to edit the complaint to cobble the claim into one [of] their choosing to derail discovery.” The magistrate judge also characterized the motion as a recasting of the defendants’ unsuccessful motion to dismiss. The magistrate judge indicated that he was “not at all persuaded” that the plaintiffs were limited to bringing an APA-based claim and noted that the district court had already rejected this argument when it denied the motion to dismiss. The magistrate judge also rejected the argument that separation of powers barred all discovery, saying that to broadly preclude discovery on such grounds would allow the government to avoid discovery “simply by asserting hypothetical discovery requests that a litigant might make during the litigation.” The magistrate judge indicated that the defendants could, however, seek a protective order should specific discovery requests arise that implicate claims of privilege.

On June 1, the defendants filed objections asking for the district court’s “immediate intervention.” The defendants said the magistrate judge had failed to “substantively engag[e]” with any of their arguments and that his order was contrary to law and clearly erroneous. The defendants also asked the magistrate judge for a stay pending the resolution of their objections. On June 4, the defendants filed another motion for a protective order, this one targeting deposition notices served on the Departments of the Interior, Agriculture, and Transportation as well as requests for admissions. The defendants also asked that a protective order at least be granted while their objections to the denial of the earlier motion for a protective order of all discovery were pending.

In their motion for judgment on the pleadings, filed on May 9, the defendants argued that the court lacked jurisdiction over claims against the president because separation of powers principles bar federal courts from ordering injunctive relief against the president for official acts. The defendants also asserted that the plaintiffs’ first amended complaint otherwise failed to state valid claims or stated claims that were barred by separation of powers principles. In particular, the defendants argued that the APA provided the “sole mechanism” for the plaintiffs to make their claims, and that all but one of the plaintiffs’ claims made no effort to challenge “circumscribed, discrete” final agency action as required by the APA. The defendants also reasserted the arguments for dismissal from their November 2015 motion to dismiss, including lack of standing and failure to state a claim. The plaintiffs were allowed until June 15 to respond to the motion, with the defendants’ reply due on June 29. Oral argument is scheduled for July 18. (The plaintiffs urged the court to defer resolution of this motion until trial, and had even asked that briefing on the motion be deferred. They argued that the motion was another dilatory tactic on the part of the defendants and said they had already devoted substantial time to informal discovery and had served 17 expert reports and requests for admissions. They also contended that further delay would significantly prejudice them, given the “urgency of the climate emergency.” The defendants responded that deferring resolution of the threshold issues raised by their motion would severely prejudice them and potentially waste “vast amounts” of judicial and litigation resources.)

In their motion for summary judgment, filed on May 22, the defendants indicated that they were following the direction of the Ninth Circuit. The defendants argued that the Ninth Circuit, in denying their request for mandamus, had “observed that Plaintiffs’ claims in this case may be too ‘broad to be legally sustainable,’ and that ‘some of the remedies the plaintiffs seek may not be available as redress.’” The defendants also noted that the Ninth Circuit had said the defendants could reassert challenges to standing, seek summary judgment, and ask for interlocutory appeal. The defendants’ May 22 motion therefore sought summary judgment on “three threshold grounds”: plaintiffs’ lack of Article III standing; plaintiffs’ failure to comply with the requirements of the APA or identify another valid cause of action; and the absence of authority for the court to grant the relief sought by the plaintiffs. With respect to standing, the defendants argued that even if the plaintiffs’ standing allegations were sufficient under a motion-to-dismiss standard, the plaintiffs subsequently had failed to set forth specific facts supporting the existence of a concrete and particularized injury that was traceable to the defendants’ actions and redressable by the court. The defendants also argued that they were entitled to summary judgment because the plaintiffs’ due process and public trust claims failed as a matter of law. In addition, the defendants requested that any denial of the motion be certified for interlocutory appeal.

On May 24, the defendants filed notice of their application to the U.S. Supreme Court for an extension of the time in which they may file a petition for writ of certiorari seeking review of the Ninth Circuit’s denial of their petition for writ of mandamus. The defendants sought an extension of 30 days, to July 5, to allow the solicitor general to continue to consult with federal agencies to determine what course of action to take. Justice Kennedy granted the application on May 29. Juliana v. United States, No. 6:15-cv-01517 (D. Or.).
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By Michael Burger

Climate change nuisance litigation is entering a new and dynamic phase. Tomorrow, Thursday, May 24, Judge William H. Alsup in the federal district court in San Francisco will hear oral argument on motions to dismiss filed in City of Oakland v. BP P.L.C., a consolidated case in which Oakland and San Francisco claim that five fossil fuel companies’ production and promotion of fossil fuels constitutes a public nuisance under federal and California common law. Three weeks later, on June 13, Judge John F. Keenan of the Southern District of New York will hear oral argument on the motions to dismiss filed in City of New York v. BP P.L.C., a case in which New York City alleges these same companies’ same activities constitute a public nuisance and trespass under New York State law. The decisions on these motions could influence pending and future litigation in the same vein – lawsuits seeking damages, compensation or abatement funds to alleviate the costs borne by local governments to adapt to climate change impacts.

At the moment, it’s pretty messy out there. There are eight other climate change tort cases pending: six alleging nuisance and a variety of other state common law violations in California courts, one claiming state public nuisance along with other state common law and statutory violations in Colorado, and one claiming state public nuisance and trespass in Washington. One set of California cases – filed by San Mateo County, Marin County and Imperial City – was removed by defendants to federal court, then remanded to state court, based on Judge Vince C. Chhabria’s conclusion that federal common law has been displaced and that state law should govern the cases – a conclusion opposite to that previously reached by Judge Alsup in a decision preserving the removal of the Oakland/San Francisco case. Judge Chhabria then certified his decision for interlocutory appeal to the Ninth Circuit, and in March defendants filed their petition. Late yesterday, May 22, the Ninth Circuit panel denied the petition for interlocutory appeal. A separate appeal, challenging Judge Chhabria’s decision that the federal officer statute does not require removal, is pending, with briefing scheduled to take place over the summer. Meanwhile, a second set of cases – filed by Santa Cruz County, the City of Santa Cruz, and the City of Richmond – have also been removed to federal court and assigned to Judge Chhabria. A motion for remand has been briefed. The cases filed by the City and County of Boulder, Colorado, and by King County, Washington are still young, and defendants have not yet responded to the complaints. Read more »

By Dena Adler

Meeting in the Chamber Hall at the World Conference Center Bonn.

Thousands of country delegates, NGO representatives, citizens, researchers, and members of the private sector converged in Bonn, Germany for two weeks of meetings to advance global climate change negotiations, ending on May 10. While the annual international climate summit, called the Conference of the Parties or “COP,” attracts greater media attention, “intersessionals” like the recent Bonn meetings, along with remote work throughout the year, are when parties do the real work to hash out the details of COP decisions.

The recent Bonn negotiations sought to advance progress on a “Paris Rulebook” which will set out guidelines for how countries should implement their pledges for climate action—known as “nationally determined contributions” (NDCs)—under the Paris Agreement. When the Paris Agreement was negotiated, countries largely expected it would enter force no earlier than 2020, leaving them several years to lay out the rules of the road for implementation. However, the Paris Agreement entered into force unexpectedly quickly in November 2016. This has in turn pressured parties to speed up production of implementation guidelines for their climate action pledges.  Parties have now set a deadline to produce the Paris Rulebook by the upcoming COP 24, to be held in December 2018 in Katowice, Poland. Read more »

By William Omorogieva*

The intensity of recent hurricanes and the damage they have caused in America have garnered lots of national news coverage. After Hurricane Katrina, it became evident how a lack of planning for natural disasters can have dangerous and deadly consequences. However, often hidden from public view is the struggle that some of our most vulnerable citizens endure during times of hurricanes and other natural disasters. Inmates in prisons and jails cannot take care of themselves and must rely on prison officials to do so. During national disasters like hurricanes, prisoners have consistently suffered physical and mental injuries and often have no remedy for their suffering. In a country that has more correctional facilities than colleges, it is unfortunate how often prisoners’ rights are left out of sight and out of our hearts.

The accompanying paper explores the correctional sector in the United States and the culture of neglect regarding prisoner safety and well-being during natural disasters, with a focus on Hurricanes Katrina, Harvey, Irma, and Maria. This paper covers rights that prisoners have under the Eighth Amendment of the United States Constitution and other federal statutes. The paper goes on to examine prison emergency preparedness in general and the lack of continuity regarding planning for natural disasters.

Prisoner conditions during recent hurricanes are examined closely to highlight how a lack of adequate emergency planning led to inmates living in unsuitable living conditions that violated their constitutional rights. It is important to note that for over a decade after Hurricane Katrina, during which prisoners suffered dearly, this repeated cycle of unacceptable living conditions and deprivation of prisoner’s rights has continued. The paper closes by recommending changes to some of the federal legislation that gives prisoners’ rights. These changes, which range from legislative approaches to litigation, are meant to create comprehensive federal protections for prisoners who are confronted with horrible living conditions and inadequate health care when they are not evacuated during hurricanes.

*William Omorogieva is a member of the J.D. Class of 2019 of Columbia Law School.  He is from Washington, D.C.

By Richmund Sta. Lucia

On March 27, 2018, the Philippine Commission on Human Rights (CHR) held its first hearingon the petition seeking to hold the “Carbon Majors” accountable for contributing to global emissions of greenhouse gases and the resultant impacts of climate change. The said petition requests the CHR to investigate the responsibility for climate-related human rights violations of the so-called “Carbon Majors”—companies engaged in the oil & gas, coal, and cement business that include household names in the energy industry such as Chevron, ExxonMobil, Royal Dutch Shell, and British Petroleum. (In a previous post, we tackled the issue on the jurisdiction of the CHR to investigate the allegations set forth in the petition.) The conduct of the hearing shows initial progress and serious intent on the part of CHR to investigate, gather facts, and shed light on the possible culpability of the respondent corporations.

Conduct of the First Hearing

The public hearing was held on March 27-28, 2018 at the CHR Session Hall in Manila, Philippines.  It was streamed live online. On the first day, Mr. Chito Gascon, Chairman of the CHR, gave his opening remarks to start the proceedings dubbed as “National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility Therefor, if any, of the ‘Carbon Majors’”. Commissioner Roberto Cadiz chaired the hearing. The petitioners’ counsel entered their appearance; no representatives from the respondents were present.

After the petitioners’ counsel gave their opening statement, they presented six witnesses (also known as “resource persons”) on day one (March 27), including a member of the youth and an indigenous people community, the head of a national association of farmers, a community leader in the rural areas and a vegetable farmer, and a fish vendor whose husband is a fisherman. They narrated how climate change adversely affected their health, livelihood, and overall quality of life. In addition, expert witnesses also gave their testimonies regarding the role of greenhouse gases in the environment, how climate change caused by emissions can be traced to carbon major producers, and observed climate trends and projections in the Philippines. (A video recording of the hearing held on day one can be accessed here.)

On day two (March 28), additional witnesses were presented. A leader of a transportation workers union shared how extreme heat and weather-related events affected their livelihood in the transport sector. Moreover, experts from the University of the Philippines’ Marine Science Institute testified about the role of carbon dioxide in ocean acidification and how such phenomenon makes the Philippines’ coastal areas more vulnerable. Other experts also gave their presentations about the impacts of climate change on human health as well as the nexus between Carbon Majors and industry knowledge on climate science. (A video recording of the day two hearing can be found here.)

During these hearings, the Commissioners often asked clarificatory questions to the witnesses and the counsel of the petitioners. There were also some interesting questions that were raised during the hearing. One of the petitioners, the President of the Philippine Rural Reconstruction Movement, inquired whether the CHR will invite resource persons (scientists, statisticians, etc.) who deny the phenomenon of climate change. Commissioner Cadiz replied in the affirmative, reasoning that the human rights tribunal will consider all available evidence that will help them arrive at an informed resolution. Based on such statement from the CHR, the agency affirms its commitment to conduct the hearings in a balanced and impartial manner.

Non-Participation by the Respondents

It came as no surprise that the Carbon Majors did not participatein the first hearing. The respondents did not have any representative in the proceeding; neither did they file any pleading or motion with the CHR. If at all, this move is consistent with their express position (as far as those who had earlier submittedletter-responses) that the Philippine agency does not have jurisdiction over them. The CHR was also expecting this turnout even at the get-go; nevertheless, it believes that due to the overarching importance of today’s climate issues, the respondent corporations—and the general public—continue to take interest and are closely monitoringdevelopments on the proceedings. Consequently, the CHR completed the first hearing without the respondents’ participation. In contrast, some climate experts based in the United States (e.g.., the Center for International Environmental Law and the Union of Concerned Scientists) have expressed supportto the petitioners during the hearing and buttressed the petition’s scientific basis for the nexus between the Carbon Majors and climate-related human rights violations.

The Carbon Majors’ lack of participation in the hearings can be deemed a constant challenge that the petitioners as well as the CHR have to deal with throughout the course of the petition. If the respondent corporations will continue to ignore the proceedings, the CHR will be constrained to consider ex parte only the facts and evidence presented by the petitioners. Later, the outcome of the proceedings will come in the form of a recommendation by the CHR as to what steps to do next in accordance with its rules of procedure, such as requesting any department, bureau, office, or agency of the Philippine Government to provide assistance or take appropriate action. It becomes even more interesting if the resulting recommendation by the CHR arises from a determination that the Carbon Majors indeed contributed to climate change and are held to be directly responsible for causing extreme weather events (including the deadly Typhoon Haiyan that struck the Philippines in 2013). As things currently stand, it would be reasonable to expect the respondent corporations will show stiffer opposition against the CHR’s jurisdictional authority in the future.

The CHR’s Omnibus Rules of Procedure(Guidelines and Procedures in the Investigation and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR Assistance) contains procedural guidelines that both the CHR and the petitioners may invoke to deal with the issue of non-participation by the respondents. Rule 3, Section 1 provides the powers and functions of the CHR in its investigative and monitoring functions. According to this Rule, the CHR can conduct fact-finding missions, visits, and inspections of the place where human rights violations occurred. Similarly, it is within the CHR’s authority to conduct preliminary conferences, dialogues, public inquiries, forums, or hearings on cases involving human rights violations, as well as human rights issues of national or international importance. Also, Rule 4, Section 11 provides that the processes issued by the CHR in aid of its investigation, either in the form of a notice, letter-invitation, order, or subpoena, shall require the respondents to respond to the complaint and also inform them that in case of failure to attend or respond, the CHR will proceed with the investigation and decide on the basis of the evidence and documents on record.

CHR’s Enforcement Powers?

There is one point of contention, however, that can be raised relating to the enforcement powers of the CHR: does it have the power to compel parties to attend hearings? It is interesting to note that under the Omnibus Rules, it can issue invitations, subpoenas, orders, or other processes requesting or directing any person to appear, attend and testify at the meeting, forum, conference, dialogue, public inquiry, or hearing conducted by it. Corollary to this, the subject person can be requested or directed to produce and submit records, documents, books or other things under his or her possession, control or supervision, as deemed relevant to the case being investigated by the CHR. What is more, the Omnibus Rules states that the CHR can cite any person in contempt for violation of the Rules, in accordance with the Philippine Rules of Court (which governs rules of procedure).

The CHR’s contempt power finds its fundamental basis in Section 18, Article 13 of the Philippine Constitution. Under Rule 15, the agency can hold a party committing a contumacious act liable for direct or indirect contempt. The grounds for indirect contempt include disobedience of or resistance to a lawful writ, process, order, judgment, or command of the CHR, as well as failure to obey its subpoena. If the penalty meted for contempt is imprisonment, it may call for the appropriate law enforcement agency to effect arrest and detention. It bears emphasis that the CHR and the Philippine Department of Justice (as the governmental agency tasked with criminal prosecution) entered into a Memorandum of Agreement where both agencies are enjoined to coordinate regarding the investigation and prosecution of human rights violations.

If we take a closer look at Philippine jurisprudence, there appears to be somewhat an inconsistency between the Omnibus Rules and a judicial pronouncement made by the Philippine Supreme Court in 1992. In Export Processing Zone Authority v. CHR, the high court ruled that the CHR does not have jurisdiction to issue a restraining order or writ of injunction because it is not a court of justice. What the court suggested to the human rights agency is to provide “preventive measures and legal aid services” by applying for an injunction from judicial courts on behalf of the human rights victims. Hence, this particular ruling of the Philippine Supreme Court does not recognize the CHR’s enforcement power to issue injunctions.

If the CHR does not have any enforcement powers to compel the respondents via injunction, then it can resort to merely “invite” them and urge participation. As statedby a CHR commissioner, the agency’s purpose is “to foster dialogue between stakeholders”. While an invitation does not have compelling power similar to an injunction issued by a court of law, there are other powers and functions that the CHR can resort to in order to give more teeth to its authority to enforce participation in the hearings. For example, the jurisprudential rule in the EPZA case can be narrowed down to the specific facts in that case and no further. In other words, it can be conceded that the CHR, according to EPZA, does not have the legal authority to compel a person to cease and desist from continuing acts deemed violative of human rights by way of an injunctive writ; this notwithstanding, the CHR’s power to issue subpoenas against a person or to produce documents, as well as the authority to hold a person in contempt, can still be used by the CHR (as provided under the Omnibus Rules) in order to “direct” a person to comply with its orders, especially with respect to its investigative and fact-finding authority.

Since there is no case law yet that specifically addresses the issue on whether the CHR is legally authorized to exercise the above powers granted by the Omnibus Rules (which is entitled to a legal presumption of validity), it can be reasonably argued that the CHR is not prohibited from doing so. If the authority to issue subpoenas and contempt powers will be exercised by the CHR against the respondents, its authority to direct them to participate in the hearings will be more pronounced. It can also send a strong signal to all observers that the CHR is indeed serious in pushing the progress of the proceedings and ultimately determine accountability. The end result of the proceedings is that the CHR would come up with a resolution containing recommendations to policymakers in order to combat climate change and prevent related human rights violations. According to the CHR, the agency’s records will be available to the public should anyone intend to file cases in regular courts to pursue civil or criminal charges.

Procedural Considerations in the Future

As to whether the respondent corporations will actually acquiesce to the CHR’s orders is another matter. The Carbon Majors can argue against the seeming extraterritorial effect of the proceedings—the CHR’s jurisdiction is only territorial, i.e., it can only investigate human rights violations that occur within the Philippines. This raises a tricky question because the impact of climate change is global in scope and transcends national borders. Then again, similar to the direct effects of climate change, e.g., Typhoon Haiyan caused massive injury to life, health, and property in the Philippines, there is basis to argue that the CHR can compel respondents to participate in the proceedings or otherwise forfeit their opportunity to present evidence and argue. Moreover, with respect to the Carbon Majors which have a business presence in the Philippines (such as Chevron and Royal Dutch Shell), the CHR can more likely issue subpoenas or use contempt powers to elicit compliance with its orders or recommendations.

As a matter of procedure, the CHR can generally acquire in personam jurisdiction through service of summons or voluntary appearance in court (Prudential Bank vs. Magdamit, 2014). (Note that judicial procedural rules apply to CHR proceedings in a suppletory fashion according to the CHR Omnibus Rules, Rule 7, Section 22.) Rule 14 of the Rules of Court provides that while personal service of summons is the preferred mode, the rules also recognize other modes of service of summons: (1) substituted (i.e., leaving a copy of the summons at the defendant’s residence or regular place of business); and (2) extraterritorial (i.e., for a non-resident defendant which has property in the Philippines, service may be made outside the Philippines by either personal service or by publication in a newspaper of general circulation in such place ordered by the tribunal). If the tribunal has no jurisdiction over the person of the defendant, the complaint will be dismissed (Philippine Rules of Court, Rule 16, Section 1(a)). Here, the petitioners argue that extraterritoriality is “not a bar to the Commission’s exercise of authority, considering the transboundary nature of climate change and other environmental problems and the associated human rights implications.” (Petition, p. 11) They also acknowledge, though, that “[i]f extraterritorial service of notice, summons, and pleadings, as well as the conduct of investigation, cannot be facilitated or are denied facilitation by the national human rights institutions, or other equivalent body, in the countries of Respondent Carbon Majors, or for other practical reasons the same could not be implemented, Petitioners will find it amenable that the investigation and related processes for this Petition will involve onlythose Respondent Carbon Majors with branches, regional offices, and/or subsidiaries in or substantial connection (through their agents) to, the Philippines.” (Petition, pp. 11-12; emphases supplied).

In addition, the respondents can file a third-party complaint and bring in third-party defendants—with permission from the tribunal—as provided under Section 11, Rule 6 of the Philippine Rules of Court. Furthermore, Section 12 states that if there are additional parties whose presence is required in order for the tribunal to be able to grant complete relief, the tribunal will order them to be brought in as defendants, so long as jurisdiction over them can be obtained. In other words, the Carbon Majors could argue that other companies (e.g., other oil, gas, and coal companies, motor vehicle manufacturers, cement companies, electric utilities, and others that were not named in the petition) would also be liable if they are, and therefore should also be brought before the tribunal. The above issues on personal jurisdiction and third-party complaints are procedural matters which the CHR may possibly need to deal with should the respondents raise them in the future.

Aside from the CHR’s Session Hall in Manila, hearings in the future are also scheduledin New York (September 24-28, 2018, hosted by the New York City Bar Association) and London (November 5-9, 2018, hosted by the London School of Economics). These locations are nearer to the global headquarters of some of the Carbon Majors. This can be a logistical reason for them to attend the next hearings. In addition, the perceived “home court advantage” that the petitioners may have had in Manila may be counterbalanced in these locations. Whether the Carbon Majors will find these considerations sufficient to reconsider their position and later decide to participate in the hearings set in these neutral venues outside the Philippines remains to be seen. Yet, it bears emphasis that Commissioner Cadiz noted during the hearing the manifestation of Cemex (a Carbon Major based in Mexico) dated December 7, 2017 withdrawing its challenge on the jurisdiction of the CHR to conduct the inquiry. In effect, Cemex withdraws its motion to dismiss dated September 14, 2016 that it earlier filed. If at all, this could be a positive development towards better participation in the dialogue; hopefully, other Carbon Majors will follow suit. In the meantime, the CHR and its ongoing investigation will be needing the support of organizations and individuals in the fields of public policy, science, economics, law, and other fields that can be united by a common advocacy for climate justice.

Richmund Sta. Lucia, a candidate for an LL.M. degree at Columbia Law School, received his J.D. degree from the University of the Philippines College of Law and has worked as an attorney in the Philippines’ Office of the Solicitor General and private law firms. His legal advocacy includes the promotion of renewable energy. This blog presents his personal views and not necessarily those of the Sabin Center for Climate Change Law.

May 2018 Updates to the Climate Case Charts


Posted on May 2nd, 2018 by Romany Webb

Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 109.

FEATURED CASE

Federal Circuit Reversed Ruling That Held U.S. Liable for Louisiana Flood Damage

The Federal Circuit Court of Appeals reversed the Federal Court of Claims finding that the federal government was liable for flood damage in St. Bernard Parish and New Orleans that was caused by Hurricane Katrina and other hurricanes. The plaintiffs, who were property owners in St. Bernard Parish and the Lower Ninth Ward of New Orleans, contended that the government was liable for a taking based on its inaction, including the failure to properly maintain or modify the Mississippi River-Gulf Outlet (MRGO), and its actions, including the construction and operation of the MRGO channel. The Federal Circuit held that the government cannot be liable for inaction on a takings theory and that the construction and operation of MRGO had not been shown to be the cause of the flooding. The court found that the plaintiffs and the Court of Claims had not applied the correct legal standard to the causation analysis, which was required to “account for government flood control projects that reduced the risk of flooding.” The court said the plaintiffs failed to present evidence comparing the flood damage that occurred to what would have occurred had there been no government action at all and so had failed to take account of actions—including a system of levees and floodwalls known as the Lake Pontchartrain and Vicinity Hurricane Protection Project—that mitigated the MRGO impact. St. Bernard Parish Government v. United States, No. 2016-2301, 2016-2373 (Fed. Cir. Apr. 20, 2018).

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By Romany Webb and Jessica Wentz

The latest round of United Nations (UN) climate change talks got underway yesterday – April 30 – at the seat of the secretariat to the UN Framework Convention on Climate Change (UNFCCC) in Germany. The so-called “intersessional” talks, which take place each year midway between the annual Conference of the Parties to the UNFCCC, are intended to advance discussion on implementing the 2015 Paris Agreement. Meetings will be held by the Ad Hoc Working Group on the Paris Agreement, as well as the UNFCCC subsidiary bodies for implementation (SBI) and scientific and technological advice (SBSTA).

A key focus of the SBSTA meeting will be on developing guidelines for implementing Article 6 of the Paris Agreement. That article – often termed the “cooperative approaches provision” – establishes a framework under which Parties to the Paris Agreement may cooperate on actions to mitigate climate change. This has the potential to benefit developing countries, leading to increased funding for their climate change mitigation projects. Care must, however, be taken to ensure that those projects do not adversely affect local communities or infringe on individuals’ human rights. Recognizing this, in their submissions to SBSTA, several Parties have called for action to ensure the protection of human rights.

To inform discussions on this issue, the Sabin Center is today publishing a working paper, which explores different approaches to ensuring human rights are protected in the context of Article 6. We identify three key approaches:

  • The adoption of social and environmental safeguards for the Article 6 cooperative approaches that resemble (but ideally improve upon) the types of safeguards adopted for the CDM and other project finance mechanisms.
  • The establishment of guidelines aimed at ensuring that a portion of the revenue from the cooperative approaches is channeled to countries and communities where climate change poses the greatest risk to human rights.
  • The incorporation of human rights considerations into the overarching implementation guidelines for the Paris Agreement.

While none of these approaches is expressly required by the Paris Agreement, they are implicitly authorized by language in the preamble calling upon Parties to respect, promote, and consider human rights when acting on climate change. How the Parties will do that remains to be seen.

By Romany Webb

The New York Independent System Operator (NYISO) – the entity responsible for managing New York’s electric grid – is currently undertaking a major review to determine whether and how a carbon price could be integrated into wholesale electricity markets. This is widely seen as necessary to harmonize markets with state policies aimed at decarbonizing electricity generation. To achieve that goal, the state has provided certain renewable and nuclear generators with out-of-market payments, intended to reflect their low-carbon attributes. Concerned that those payments may distort the wholesale electricity market – e.g., by causing uneconomic generators to remain in operation instead of retiring – NYISO has proposed “internalizing” the value of low-carbon generation by adopting a carbon price.

To explore possible approaches to carbon pricing, NYISO and state officials have convened a task force, which is expected to develop a proposed carbon pricing scheme by December 2018. While details of the scheme are still being discussed, NYISO has suggested that generators be required to pay a carbon fee, which would be calculated based on their carbon dioxide emissions per megawatt hour of generation, multiplied by a uniform (per ton) carbon price. How that price should be set has generated much debate among stakeholders.

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This blog provides a forum for legal and policy analysis on a variety of climate-related issues. The opinions expressed here are solely those of the individual authors, and do not necessarily represent the views of the Center for Climate Change Law.

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