Right: Royal Dutch Shell, an oil industry giant, is one of the global companies affected by the Danish Parliament's finding that Government and and Corporate bodies owe a duty of care to future generations.
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Arguments for governments and companies being legally obligated to protect people from climate change
1. Governments and companies should be legally obligated to act to reduce climate change because it undermines human rights
Those who argue governments and companies should be held legally responsible for failing to act on climate change stress that environmental security is a human right that should be respected by all states. They further argue that the law should compel governments and companies to respect this human right by acting to reduce the impacts of climate change.
The United Nations has progressively recognised environmental security and protection from climate change as a human right. In 2008, the United Nations Human Rights Council (HRC) unanimously adopted Resolution 7/23, recognising that 'climate change poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.'
In 2009, the Office of the United Nations High Commissioner for Human Rights (OHCHR) released an analytical study identifying specific rights and groups of people likely to be adversely affected by climate disruptions. The report drew on the submissions of some 30 nations as well as United Nations Agencies and other organisations. It identified displaced persons, conflict and security risks, and the impaired rights of indigenous peoples, women, and children as major concerns. In June 2014, the OHCHR released a focus report on human rights and climate change - 'Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment'. This report specified some of the already widely accepted human rights which are threatened by climate change. These include the rights to water, adequate food, health (particularly children's health), housing, sanitation, safe and clean living conditions, and, as a summary statement, the right to life and physical integrity. Though these threats to human rights were presented as affecting the entire human population, the 2014 report also noted that vulnerable groups were particularly at risk, including displaced people and those already living in poverty. The report referred to a range of strategies the nations of the world could employ to reduce greenhouse gas emissions and lessen the impact of climate change. Subsequently, court rulings in the Netherlands and Australia have made governments and companies legally responsible for acting to reduce the impact of climate change on the human rights of citizens and consumers. In June 2015, a court in The Hague ordered the Dutch government to cut its emissions by at least 25 percent within five years. Dennis van Berkel, legal counsel for Urgenda, the group that brought the suit, stated, 'This is the first time a court has determined that states have an independent legal obligation towards their citizens [to reduce climate change].' The suit was brought under human rights and tort law, accusing the Dutch government of violating both.
Four years later, in December 2019, the Supreme Court of the Netherlands confirmed the previous ruling, ordering the government to cut the nation's greenhouse gas emissions by 25 percent from 1990 levels by the end of 2020. Kees Streefkerk, the chief justice, said in the decision, 'the lives, well-being and living circumstances of many people around the world, including in the Netherlands, are being threatened'. Eighteen months later, on May 25, 2021, a Dutch court ruled that Royal Dutch Shell must cut its CO2 emissions by 45 percent compared to 2019 levels. This is the first time a court has required a fossil fuel company to change its policy based on a citizen class action complaint regarding climate change.On May 26, 2021, the Federal Court of Australia also made a ruling regarding government responsibility re climate change. The court ruled that environment minister Sussan Ley has a legal duty of care to safeguard Australian children and teenagers, as well as the environment, from the impacts of climate change. Justice Mordecai Bromberg stated that under national environment law, the minister must consider the 'avoidance of personal injury' when deciding whether to approve future mining projects. He stated, 'The quality of life, opportunities to partake in nature's treasures, the capacity to grow and prosper - all will be greatly diminished...Trauma will be far more common and good health harder to hold and maintain.'
In a comment published in The Conversation on June 1, 2021, Arthur Petersen, Professor of Science, Technology and Public Policy, at University College London stated, 'The interpretation of human rights has internationally moved to include climate change. And any government, business, or organisation can be held accountable by potential victims for preventing too large a climate change from happening.'
2. Companies are reluctant to protect consumers from climate change
Critics argue that fossil fuel-producing companies have been slow to enact policies to reduce climate change. Those who support these companies being held legally accountable for their production policies argue they should be compelled to sell safer products and not threaten the physical environment and the well-being of consumers. They claim these companies have deliberately spread climate change misinformation and have put profits ahead of community and global welfare.
Critics of fossil fuel-producing companies claim the actions currently being taken by these companies are not sufficient to reduce the dangers of climate change. In October 2020, the Transition Pathway Initiative (TPI) issued a report which stated that none of Europe's largest oil, gas, and coal companies are on track to limit global warming to within 2 degrees Celsius. The TPI is a global program based at the London School of Economics, which assesses climate risks and companies' preparedness for a low-carbon economy. It oversees the operation of companies with a combined worth of more than $22 trillion. Only seven out of 59 companies studied have set emissions reduction targets in line with pledges made in the Paris Agreement. The TPI stated that only three of the 59 companies studied are approaching targets that would hold an increase in global temperature at 2 degrees Celsius 'but still need further measures to be assessed to align with this benchmark'.
TPI's research also indicates that North American companies are making less effort than those based in Europe to reduce CO2 emissions. Neither of the two United States oil giants, Exxon Mobil Corp. and Chevron Corp., have overarching emissions goals. On the contrary, an analysis of internal documents reviewed by Bloomberg Green shows that Exxon Mobil has been planning to increase annual carbon dioxide emissions by as much as the output of the entire nation of Greece. On May 27, 2021, Sustainable Future reported, 'None of the world's largest oil and gas companies has disclosed how they will achieve the target of becoming a net-zero enterprise by 2050, more than five years after the Paris Agreement was ratified by nearly 200 countries.' It has been claimed that the greater profitability of hydrocarbons remains a key factor in discouraging fossil fuel companies from greater investment in renewables. Internal rates of return (IRRs), the standard commercial measure of an investment's profitability, are around 15 to 20 percent on hydrocarbons. Typical IRRs on renewables are around 5 to 6 percent. Profitability continues to prompt increased fossil fuel development. BP, for example, will start up seven major new hydrocarbon production projects in 2022, with at least three more in 2023 or later. Critics have further noted that historically fossil fuel-producing companies have ignored warnings of climate change caused by burning fossil fuels. Documents show that the United States petroleum industry was warned of the global warming impact of petroleum products at the end of the 1950s. By 1968 the American Petroleum Institute had received a report it had commissioned which stated that carbon dioxide emissions were already affecting the earth's climate and would continue to do so without significant changes being made in global fuel production and use.
Despite this, it has been claimed that fossil fuel producers continued with their then production model and by 1995 actively opposed the findings of the Intergovernmental Panel on Climate Change. At Exxon Mobil's annual meeting in 1999, then-CEO Lee Raymond denigrated models predicting fossil-fuel-generated climate change as 'based on completely unproven climate models, or, more often, on sheer speculation.' This was said even though the models reflected the company's own research findings. As further evidence of the need to enforce the obligations of fossil fuel producers, it has been claimed that historically they have sought to mislead the public and alter government policy by promoting climate change denial. A 2019 Influence Map report found that 'the five largest publicly-traded oil and gas majors (ExxonMobil, Royal Dutch Shell, Chevron, BP, and Total) have invested over $1Bn of shareholder funds in the three years following the Paris Agreement on misleading climate-related branding and lobbying.'
Additionally, fossil fuel producers have funded and, in some instances, created supposedly independent think tanks such as the Cato Institute, the Heritage Foundation, and the Heartland Institute, which have promoted the view that climate change is not man-made and does not pose a serious threat. Kert Davies, the director of the Climate Investigations Center noted, 'You can definitely credit Exxon and Koch brothers' money for giving the think tanks the megaphone to keep climate science denial in the world.' 3. Governments are reluctant to protect citizens from climate change
Those who argue that governments should be legally obliged to adopt policies that reduce greenhouse gas emissions claim they are currently doing too little. Rather than governments acting to lower emissions, it is asserted that governments worldwide continue to financially support fossil fuel producers and approve new fossil fuel projects. Legal actions taken in the Netherlands and Australia have resulted in rulings obliging governments to reduce their emissions targets to protect the health of citizens or to factor in the wellbeing of children when approving new hydrocarbon projects.
One of the key means through which governments support fossil fuel producers is by subsidies. On June 7, 2021, Human Rights Watch noted, 'Government financial support for fossil fuels...presents a key obstacle to achieving emissions reductions urgently needed to address the climate crisis. Subsidies artificially reduce the costs of fossil fuel production and use, driving continued fossil fuel dependence at a time when governments should be rapidly transitioning away from fossil fuels toward clean, renewable energies like wind and solar.'
Fossil fuel subsidies often take the form of tax breaks or direct payouts. But they can also include price controls, loan guarantees, research and development funding, and measures that allow fossil fuel producers to avoid paying the cost of complying with environmental regulations, for example where governments provide funds for fossil fuel companies to reduce their emissions. Consumer subsidies reduce the cost of burning fossil fuels for energy. Producer subsidies targeted at companies reduce the cost of coal, oil, and gas exploration, transport (pipelines, shipping), and related processing/infrastructure (LNG terminals, refineries, etc.). Support for carbon capture, utilization, and storage (CCUS) often functions as a fossil fuel producer subsidy, because most captured carbon is injected into wells as a means of extracting more oil. This is a worldwide phenomenon. The Organisation for Economic Co-operation and Development's [OECD] 2019 analysis of budgetary transfers, tax breaks, and spending programs linked to the production and use of coal, oil, gas, and other petroleum products shows that total fossil fuel support rose by 5 percent to $US178 billion that year.
The increase in support was driven by a 30 percent rise in direct and indirect support for the production of fossil fuels, primarily in OECD countries. Oil and gas industries received additional support, mostly through direct government grants to reduce corporate debt and support fossil-fuel infrastructure investments. Tax provisions gave favourable treatment to fossil fuel companies. This trend continued in 2020, with many countries financially assisting fossil fuel industries after the drop in fuel prices caused by COVID-19. Governments worldwide missed an opportunity to use the COVID crisis as a catalyst to encourage investment in renewables. This pattern of government support for fossil fuel producers is well developed in Australia. On April 26, 2021, the Australian Institute published a report stating that in 2020-21, Australia paid $10.3 billion in government subsidies to fossil fuel producers. The report noted, 'In 2020, this [subsidy rate] equates to $19,686 per minute effectively given to coal, oil and gas companies and major users of fossil fuels.' State Governments spent $1.2 billion mainly through subsidising exploration, refurbishing coal ports, railways, and power stations, and funding 'clean coal' research.
Rod Campbell, Research Director at The Australia Institute, has stated, 'A few years ago such subsidies would have been announced quietly, but now they're central to government policy. Australia is increasing fossil fuel subsidies, while the Biden administration is committing to phase them out...From a climate perspective, this is inexcusable and from an economic perspective it is irresponsible.' Australia also continues to expand fossil fuel developments. A December 2020 United Nations report found Australia is the world's third-largest exporter of fossil fuels. The United Nations' analysis highlights the Australian government's plans to increase fossil fuel production, mostly for export. The report claims that the increases in fossil fuel production planned worldwide would make it impossible to achieve the emissions reductions needed to contain global warming.
Critics of government assistance to fossil fuel producers and government-approved increases in fossil fuel production have taken legal action. In 2015, the district court in The Hague ruled that the Dutch government must 'do more to avert the imminent danger caused by climate change.' Commenting on the landmark Dutch ruling, Carroll Muffett, the president, and CEO of the Centre for International Environmental Law, stated, 'The case reflects a growing awareness among people worldwide that the failure to act on climate change violates fundamental principles of human rights.'
In a similar landmark judgment, on 27 May 2021, the Federal Court of Australia ruled that the Federal Minister for the Environment owed a duty of care to all Australian children to avoid causing them personal injury because of increased carbon dioxide emissions. 4. Children need to be protected from government and commercial neglect
Those who argue that governments and companies should be legally obligated to reduce the risks of climate change argue that this is particularly necessary to protect the human rights of children. They claim that children carry a disproportionate climate change burden now and into the future. They also argue that children are a disenfranchised group whose rights are easily ignored by governments and companies. This situation, it is maintained, requires legal obligations being placed on governments and companies to protect children from climate change.
It has been claimed that children are particularly endangered by climate change. UNICEF (the United Nations Children's Fund) has explained the immediate, annual risks children face. It states, 'Climate change puts children's most basic rights at risk, seriously affecting their access to health, food, water, clean air, education, and protection. Around the world, the growing number of extreme weather events is putting more and more children's lives in danger. Every year, environmental factors take the lives of 1.7 million children under five.'
Explaining why these harms disproportionately affect children, UNICEF has stated, 'The dangers of climate change are more pronounced for children than for adults. Children are more vulnerable to vector-borne diseases than adults. They face greater dangers from undernutrition and diarrheal diseases. The physical dangers of extreme weather events - flooding, building collapse, and more - pose unique threats to young bodies and minds. If, as expected, climate change worsens each of these risks, it is children who will suffer most. Children will also feel these effects longer than adults, making them vital in today's decisions about climate change responses.'
UNICEF has also stressed that not only are children being endangered now but their rights to environmental security are also being endangered into the future. It states, 'For an even greater number of children, these events mean a reduced chance of a happy, healthy future. When floods hit, schools and health clinics are destroyed. When droughts occur, children spend less time in school because they have to walk miles to collect water. Rising sea levels and toxic air pollution turn children's communities into hazardous environments to grow up in.'
This point was also made on May 25, 2021, by an Australian Federal Court ruling which stated, 'It is difficult to characterise in a single phrase the devastation that the plausible evidence presented in this proceeding forecasts for the children. As Australian adults know their country, Australia will be lost and the world as we know it gone as well.The physical environment will be harsher, far more extreme, and devastatingly brutal when angry. As for the human experience - quality of life, opportunities to partake in nature's treasures, the capacity to grow and prosper - all will be greatly diminished.'
Critics of government and corporate inaction on climate change argue that children are particularly vulnerable to having their stake in this issue ignored. UNICEF, commenting on the United Nations Convention on the Rights of the Child, states, 'Children generally do not vote and do not traditionally take part in political processes. Without special attention to the opinions of children - as expressed at home and in schools, in local communities and even in governments - children's views go unheard on the many important issues that affect them now or will affect them in the future.'
Critics have noted that without the right to vote, children's opinions are given little weight by many politicians. Following an Australian student strike on climate change in November 2018, Melbourne student Jagveer Singh stated, '[We want to] demonstrate that we're not happy with the federal government for not listening to us and demand that we get a safe climate...It's our future. We are the ones that will be facing the consequences of the decisions that are made today.' Youth environmental activists have also condemned corporations for discounting the world's children. Critics note that as children are not stockholders and do not sit on boards they are easily ignored. Speaking to the annual World Economic Forum (WEF) meeting in Davos, Switzerland, in January 2020, young environmental activist, Greta Thunberg, noted, 'We demand, at this year's World Economic Forum, participants from all companies, banks, institutions, and governments immediately halt all investments in fossil fuel exploration and extraction, immediately end all fossil fuel subsidies, and immediately and completely divest from fossil fuels.' She concluded, 'Your inaction is fueling the flames by the hour, and we are telling you to act as if you loved your children above all else.'
Thunberg's demand was not met.5. Citizen action is not sufficient to protect against climate change
Those who argue that governments and corporations should be legally obliged to address climate change claim that large, systemic action is necessary that is beyond the scope of individual citizens.
Many environmentalists argue that consumers use fossil fuels to meet basic needs and that until less polluting alternative fuels are available, it is very difficult for individuals to reduce their carbon footprint. This recognition places responsibility on fuel-producing companies to change their production model and supply alternative fuels. It also places them under an obligation not to invest further in polluting technologies. While no one argues that consumers do not have a responsibility to reduce their consumption of fossil fuels, it is claimed that they need to be given viable low-polluting alternatives. Richard Heede, the co-founder and co-director of the Climate Accountability Institute, has stated, '[Fossil fuel-producing companies] have some responsibility for mitigating and transforming the carbon economy because they're in the driver's seat about which resources are extracted and marketed.'
The claim has similarly been made that governments are responsible for creating circumstances that will aid the citizen consumer to make consumption choices that reduce greenhouse gas emissions.It has also been argued that government and corporate policies have created a structural environment where it is difficult for the citizen consumer to make low emissions choices. In an article published in Refinery29 on September 25, 2020, Whizy Kim explained some of the obstacles that prevent many Americans from giving up their petrol cars. He wrote, 'The post-WWII era was dizzy with incentives, policies, and mass infrastructure projects that made owning a car much more feasible and attractive than in other nations. To this day, a stunning variety of laws help maintain a landscape where having your own car is either the safer, cheaper option or the only option. U.S. cities with well-connected, affordable public transportation remain extremely rare, partly because public works, in general, are underfunded, but also because groups that have a stake in the auto or fossil fuel industry use their piles of money to help ensure they don't get built.'
A similar complaint regarding the private sector's failure to support reduced emissions can be made regarding Australia's uptake of solar-generated power. Australian consumers have enthusiastically adopted solar panels to supply their homes with electricity. In 2019, small-scale solar (systems up to 100 kW) was responsible for 22.3 percent of Australia's clean energy generation and produced 5.3 percent of the country's total electricity.
However, critics claim that this success is being restricted because of corporate neglect. In March 2021, thousands of Victorian homeowners installing solar power panels were told by the state's distributors they would not be able to feed electricity into the network. Householder-generated solar power is now more than the grid can sustain. This overload has occurred despite regulators having warned the private distributor companies for over ten years that they needed to upgrade distribution networks. The Australian Energy Market Commission (AEMC) is now warning that Australians could be charged for exporting solar to the grid to help cope with electricity 'traffic jams.' Critics have complained that a lack of investment by private distributors is threatening householders' use of solar power. It has further been argued that without government support, some low-emissions changes will be beyond most consumers. This point has been made regarding Australia's low uptake of electric vehicles (EVs). Currently, the cost of importing electric cars into Australia makes them an unrealistic option for many Australians. Most motorists favour EVs; however, want the government to establish consumer subsidies to make it possible for them to buy these vehicles. Survey results released by The Australia Institute in March 2021 stated, 'Two in three Australians (62 percent) agree that the government should introduce subsidies for the purchase of EVs.' The results also indicated 'Over half of Australians (57 percent) support a ban on the sale of new fossil-fueled vehicles from 2035.'
Federal MP Zali Steggall has noted, 'Australia is behind the rest of the world. Only 0.7 percent of new cars sold in Australia are electric vehicles. In Norway, 75 percent of all new cars sold are electric vehicles.' It is argued that unless the move to EVs is assisted by government policy it is unlikely to occur in numbers large enough to affect emissions. Those who support governments and corporations being legally obliged to promote emissions reduction argue that without their support private citizens cannot do enough to significantly reduce climate change.