Article 8 of the Paris Agreement was monumental for advocates of Loss and Damage. But the first draft of Article 8 reveals the concessions and compromises developing countries made to get it. Notably struck from the final version are the words and concepts of “compensation.” In the early draft, “compensation” was referred to as a “regime” for developing countries to receive support – specifically “LDCs, SIDS, and countries in Africa affected by slow onset events.” Without this clause, developing countries are left to the ambiguity of the current Article 8. Ever since, there has been financial tension between developed and developing countries to provide for the tragic loss and damage costs climate change has incurred.
Without the context of “compensation” in the Paris Agreement (and without any formal agreements afterwards), many developing countries are left with a seemingly lack of avenues to finance their recovery efforts. Fortunately, not all these avenues have closed against them. Formal litigation efforts for climate change damages is one burgeoning justice avenue developing countries may use to collect remedies from historically polluting countries. As climate change litigation gains traction, advocates should pay attention to framing loss and damage issues as a matter of justice rather than a matter of humanitarian aid. As Sabine Minigner of Brot for die Welt said on Tuesday (11/14/2017), climate change compensation is not charity but justice. Developing countries should not be penalized for carbon emissions they did not emit.
This burgeoning legal environmental justice concept can be seen in U.S. courts of common law. For example, the monumental case of Kivalina v. ExxonMobil began with a vulnerable people’s group in Alaska. The eventual plaintiff-appellants alleged that many fossil fuel giants (oil, coal, electric utilities, etc.) had contributed to global warming. Under tort law they sued for remedies of $400 million under public nuisance. The case was unfortunately dismissed for judicial doctrinal reasons. But even though the plaintiffs in Kivalina did not succeed, their litigation proves an important stepping stone as U.S. courts grapple with justice for those impacted by climate justice.
The U.S. is not unique in its litigation – many other countries are establishing legal avenues through plaintiff actions to bring polluters to justice. But the Kivalina case is still unique in that the plaintiffs were not seeking injunctive or immediate action, but reactive after-the-fact measures to bring them to their previous status quo. This was not litigation with goals for unjust enrichment. It was a matter of loss and damages and how a plaintiff can get a tortfeasor to compensate them for such. In that sense, climate change litigation parallels concepts of tort litigation.
And in most, if not all, tort casebooks the themes of justice, equity, and fairness are featured. The basic concept being that if one person hurts another, the tortfeasor (the one hurt) should be held liable in court to restore that person as far as they have damaged them. With this in mind, climate change litigation – as an arm of justice – may operate similarly. Maybe climate change litigation will gain more traction as those without, sue those who have and courts get more comfortable with climate science within their courts. So even though the Warsaw Implementation Mechanism will wait for another Excom to determine its finance arm, vulnerable people groups may have another avenue to recover incurred climate change damages from polluters. And really they should, it would just be justice taking form in compensation.