California For The Win

Why Climate Litigation Matters

We called this show Damages because fossil fuels have been causing a lot of damage. At UN climate negotiations, the conversation around damages is called loss and damage. But after nearly 30 years, these negotiations have yet to achieve their ultimate goal, deterring polluters from causing more irreversible damage.
And if we continue to believe that those who pause it shall get away without payment. At all times. It is only a matter of time before they to become victims of their own negligent behavior. Even if we are to S upfront, this was the Prime Minister of Barbados, Mia Motley speaking at the UN Conference on Trade and Development in 2019.
Motley is part of a long line of leaders of island states that have been asking who will pay for the damage caused by climate change for more than 30 years. Back in 1991, when Vanuatu first brought up compensation at UN climate talks, there was still time to stop the climate crisis from causing the kinds of extreme harm we're now seeing become more common.
But even as the worst fears expressed by countries like Vanuatu have come true, Discussions around who should pay have been going backwards. So much so, that in 2012, after 20 years of negotiations, rich countries managed to get words like compensation and liability almost completely erased from UN climate talks altogether.
Instead, governments now use the term loss and damage, and even those words are considered controversial. Yeah, despite nearly three decades of delay, countries like Vanuatu are far from giving up. After the last UN climate conference, a group of countries led by Vanuatu decided to turn to the International Court of Justice.
And they have a growing body of evidence to support their claim, including from the Intergovernmental Panel on Climate Change, or IPCC, which has now acknowledged that climate change is also connected to the economic inequality caused by colonialism. Thirty years after negotiations begun, many of these countries are already experiencing economic costs greater than the size of their annual incomes from climate induced disasters.
For this episode, we dug up footage from fossil fuel industry lobbyists who attended UN climate negotiations and claimed that calls for loss and damage was some kind of shakedown or money grab. But, as Mia Motley explains, the underlying motivation has always been about preventing further damage. The loss and damage funds.
So those responsible for the stock and growth of greenhouse gases, therefore will not only provide the financing, but will provide the kind of change incentives that we need to bring a halt to climate change. Who feels it, knows it? Those who must pay will alter their behavior. That's the story we are looking into this episode.
Welcome back to Damages. I'm Lindell Rolands.
We can take drastic action now to ensure that we prevent a future where super typhoons become a way of life. Back in 2013, Yeb Sarno was representing his home country of the Philippines at the 19th Conference of the Parties of the UN Framework Convention on Climate Change, or COP for short, when a super typhoon destroyed his hometown.
Well, we're going to turn now to the disaster in the Philippines, where officials fear the death toll could hit 10, 000 after one of the strongest storms ever cut a devastating path of destruction across the country. Where we have to ask ourselves, can we ever attain the ultimate objective of the convention, which is to prevent dangerous anthropogenic interference with the climate system.
By failing to meet the objective of the convention, we may have ratified our own doom. And if we have failed to meet the objective of the convention, we have to confront the issue of loss and damage. Loss and damage is a reality today across the world. Sarno made an emotional speech at the meeting, announcing he was going to start a hunger strike until rich countries agreed to help countries like the Philippines prepare for super typhoons and other disasters that are becoming more severe and more frequent with climate change.
Rich countries agreed to create a fund of 100 billion per year by the year 2020 as a starting point. In the years that have followed, rich countries, including the United States, have backtracked and minimized the small commitment they made at the end of COP 19. And they've worked hard to scrub the idea from negotiations as much as possible.
Uh, but rich countries were totally against the terminology of liability and compensation. So a deal was struck that the terminology of
This is Harsheed Singh, an expert on UN loss and damage negotiations, who works for the Climate Action Network. Instead of focusing on compensation, rich countries wanted to focus on global solidarity, sharing technical know how as well as loans to countries that are no longer able to get insurance as disasters become more frequent and severe.
Here's Singh again, explaining how it was the island state of Vanuatu which first brought up compensation at UN climate talks back in 1991. Uh, so Vanuatu on behalf of a small island states group called EOSES. Uh, brought it up in 1991, uh, referring to sea level rise and how it's going to affect people and, and cause irreversible, uh, impacts.
And they called for a compensation mechanism, which was acknowledged as insurance in the convention. The UN Framework Convention on Climate Change or UNFCCC. Was signed by 154 countries at the Rio Earth Summit in 1992, one year after Vanuatu had brought up the question of compensation. The convention aimed to prevent dangerous human interference with the climate system.
Although the Convention did not refer to compensation specifically, it did establish that some countries which were more likely to experience the effects of climate change would need financial assistance. So by the time COP26 in Glasgow happened in December 2021, Vanuatu and other island states had been waiting 30 years for rich countries, which have also contributed by far the most to causing the climate crisis, to make some kind of acknowledgement that polluting governments and corporations should help pay for the damage they've caused.
But people in governments that wanted faster action on climate change weren't alone in trying to influence the outcomes of negotiations. From the very first Earth Summit in 1992, lobbyists from the fossil fuel industry were also making their own case, by employing propaganda techniques, including the classic strategy LLC.
Denying the science. I would now like to introduce Bill O'Keefe, executive director of the American Petroleum Institute and past chairman of the GCC. Bill was in Buenos Aires with us for almost the whole two weeks, or at least about a week and a half, I believe, and has some observations that he would like to give you.
This is Connie Holmes from the Global Climate Coalition, a lobby group that sought to undermine climate action in the 1990s. She's introducing Bill O'Keefe, the executive director of the American Petroleum Institute to journalists at a press conference, soon after they had both stepped off the plane from two weeks of UN climate negotiations at COP number four in Argentina.
Thank you very much, Connie, and they are observations. Uh, I'd like to commend Connie for staying through to the bitter end, and I'll put emphasis on bitter. Uh, my plane left at 10. 30, so I just left in the early afternoon, but Connie stayed. Here, O'Keefe explains how fossil fuel lobbyists stayed at UN climate negotiations until what he calls the bitter end.
O'Keefe went on to falsely deny the scientific basis for UN climate negotiations, before telling journalists that increased CO2 could even have potential benefits. There is no scientific consensus contrary to what people assert. There is emerging science that we've ignored the benefits of increased CO2.
Other speakers at the press conference echoed O'Keefe's claims. That the jury was still out on the science, even though at the time we know that even the fossil fuel industry's own scientists had been telling them differently for several years. So by 92, we already have, they already got a template. They already got an organization.
They've got their rhetoric down. They've got the organization down. You know, the importance of the GCC is really pretty immense because it just, it really gave a, a field test. To their strategy to delay climate action. Environmental sociologist Robert Bruhl has just published the first peer reviewed paper on the Global Climate Coalition, or GCC.
It was originally organized by the National Association of Manufacturers and included trade groups and corporate representatives from every industry that stood to lose profits if emissions were regulated. Bruhl notes that in addition to casting doubt on climate science, the group hammered home two key points, economics and sovereignty.
Play up the economics, play up the economics, play up the threat to the American way of life, and then talk about international inequality, talk about energy security, talk about anything international that we can use to, you know, throw at this, at this thing. Akif, for example, describes countries asking for financial assistance to respond to climate change as While I was there, the image that was created in my mind is the movie Jerry Maguire.
And you can decide who Tom Cruise is and who Cuba Gooding was, but clearly a lot of the discussion was about, show me the money. So right out of the playbook, Brewer lays out in his new paper. There's a theory and practice of climate obstruction, and these guys are the masters of the practice because they've been doing it for 33 years.
So far they're 33 and 0. They've won 33 years in a row. At the time, the projected costs of climate change were not yet as high as they are now. It was all about transfer of wealth. It was interesting, there was very little discussion of the science, and I've concluded, uh, that that is with good reason because in the past year, The science has turned against this protocol.
O'Keefe's claims that developing countries were using climate negotiations as a way to transfer wealth not only ignored the costs of climate change to developing countries. But also erase the close links between the fossil fuel industry and colonialism that have seen the mass transfer of wealth in the opposite direction.
You know, it's clear that colonialism and the fossil fuel era reconfigured the world economy. This is Harpreet Paul. She's a human rights lawyer and a member of the Make Polluters Pay coalition. The Indian subcontinents share of the global economy shrank from 27 to 3% between 1,719 50, and it's estimated that the, at the same time, the UK benefited by approximately 45 trillion US dollars from its colonial rule of the Indian subcontinent alone.
And there are similar stories to be told. of colonial endeavours in the Americas, um, in the African continent and beyond. As Paul explains, the economic costs of climate change are only the latest in a long history of economic extraction and transfer of wealth away from developing countries and Indigenous peoples.
And the economic costs of loss and damage is predicted to reach between 290 and 580 billion US dollars by 2030, and that the upper end, that would equal more than the combined GDP of the world's 80 poorest countries. And it's not just island states. The recent deadly heatwaves in India and Pakistan are just one more example of what climate damages look like.
The loss and damage fund that rich countries agreed to create was meant to begin with 100 billion a year. But so far, a lot of the money has come in the form of loans that add to the debts countries are already incurring from climate induced disasters. The Jubilee Debt Campaign has described the situation as a climate debt trap.
Here's Prime Minister of Barbados, Mia Motley, again. The bottom line is, to build back, we have to borrow, and when we borrow, it is added to our debt to GDP, and when our debt to GDP rises, our credit rate drops, and then we are unable to meet. the basic fundamental demands that normal development requires of us.
There has to be a recognition of being able to isolate that debt which is necessary to build resilience or to build back from a climate disaster as opposed to the normal aspects of development. Instead, as Hajit Singh explains, polluters continue to receive incentives in the They are getting subsidies to the tune of 11 million a minute, 11 million a minute, uh, and yet they're not being held accountable, uh, and they're using these public resources and further causing the problem.
Far from developing countries being the ones that are rent seeking, Paul points out that climate change is part of a much bigger picture of colonialism. And of course that has a long history of, um, following a colonial pattern of extracting and exploiting local communities, um, and leaving them in very, very precarious context, um, less able to withstand shocks, whether they're economic shocks or, um, political or climate, to be able to respond in the same way.
Hi, my name is Aisha Siddiqa, I'm an environmentalist, storyteller, advocate for human rights, and I work with polluters out. Together with other youth climate activists, Siddiqa has been campaigning to stop including fossil fuel companies in UN climate negotiations. There were over 500, uh, fossil fuel industry delegates at the conference, and that's more than any country alone.
Like, no country had over 500 delegates. As Siddiqa describes, the climate crisis is the extension of a long history of colonization. For all the exploitation that has happened in your land, for all the stealing and pillaging that has happened by the hands of white people, they have now not only looted from you, they're killing themselves in the process as well.
Even as the devastating impacts of climate change have spread to countries like Australia and the United States, fossil fuel lobbyists have continued to call for more delays. Whereas back in 1998 at that GCC press conference, speakers suggested that we wait and see how things are in 2020. At more recent COPs, the focus has shifted to the vague commitments of net zero by 2050.
After COP26 in Glasgow again failed to deliver any progress on loss and damage, almost 10 years after Yebsano's hunger strike, Vanuatu and other island states decided to escalate their case with a plan to go to the International Court of Justice. If you look at small island states who have approached the International Court of Justice, that clearly shows the kind of frustration and desperation they are going through.
When Vanuatu reaches International Court of Justice to talk about adverse effects, we need to look at how we have failed over the last three decades. Uh, not only in reducing emissions, but also helping countries to prepare for the climate impacts that were inevitable. So it is actually a failure of the range of climate action that we should have seen over the last 30 years.
The next step will be to win a vote at the UN General Assembly. Negotiations at the UN Framework Convention on Climate Change need to have a vote by consensus, which means that all governments, including polluters like Australia and Saudi Arabia, have to say yes before anything happens. At the UN General Assembly, Vanuatu will only need a majority of countries to support its proposal.
Since more than half of the countries at the UN are developing countries, which have long supported the idea that countries that have polluted more should take more responsibility, it's possible, but far from assured, that Vanuatu's proposal will win a majority vote. And as far as the, um, UN and its representatives are, are considered, yes, there's more Global South Nations present than Global North Nations, but there is also a financial power balance.
And even if one vote counts as one vote, that does not necessarily mean that one vote doesn't have more power over. Like the Maldives vote versus the United States. Sadiqa says she and other young people quickly learned about the unequal balance of power at the UN level. We had just organized a 7. 6 million strong march internationally.
And no one at the UN level was willing to talk to us. But this hasn't deterred youth climate activists, who think that more scrutiny of UN climate talks will help reveal the need to remove conflicting interests, including fossil fuel industry delegates. The fact that this IPCC included that social data, the fact that colonialism is now explicitly mentioned, um, turns that whole phenomena on its head.
Climate science, for the longest, was stuck in jargon and that's why the youth movement was able to, like, become so big so fast. We broke down that jargon and we made it accessible to the masses. Way back in 1988, the World Meteorological Organization and the United Nations Environment Program created the Intergovernmental Panel on Climate Change, or IPC as it's often referred to.
IPC reports have formed a basis of evidence that is now often referred to in the growing number of climate litigation cases making their way through courts around the world. And already this year, the IPCC has released two more important new reports. This latest IPCC report is significant for many reasons, but one is because for the first time since 1988, the IPCC has acknowledged the connection between colonialism and climate change.
This is an important development for the IPCC, as Harpreet Paul explains. In the recent IPCC report, where, um, the authors looked at adaptation and losses and damages, it was really clear that marginalization, exposure to colonialism, um, economic disparities, really at the heart of disproportionate exposure to climate change impact.
This recognition in the IPCC report provides further evidence to support the case of countries like Vanuatu, including in their bid to get a majority of countries in the UN General Assembly to vote yes in September 2022. Negotiations on loss and damage will also continue when COP takes place later in 2022.
That was our reporter Lyndall Rowlands. I'm Amy Westervelt. If you listened to our episode on ecocide, you heard that there's a plan to take climate change to the International Criminal Court. Solomon Yeo and the group Pacific Island Students Fighting Climate Change are trying to get the other big international court in the hake, the International Court of Justice, to weigh in on climate change too.
What we're only seeking here is that we can have more clarity on government's obligations to protect the rights of the current and future generation, young people. The purpose of the campaign for an advisory opinion from the International Court of Justice is to get the court to clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change.
Our human rights, even our basic human rights of people around the Pacific, and I believe so elsewhere around the world, are impacted by climate change. Just basic rights such as right to water, right to life, right to food, all these basic rights being discounted heavily. Damages is an original Critical Frequency production.
Our editor and senior producer is Sarah Ventry. Mixing and mastering by Mark Bush. The show is written and reported by me, Amy Westerveld, with additional reporting by Karen Savage, Meg Duff, and Lyndall Rollins. Our fact checker is Wudan Yan. Our First Amendment attorney is James Wheaton of the First Amendment.
project. Our theme song this season is Bird in the Hand by Fournone. Artwork is by Matthew Fleming. The show is supported in part by a generous grant from the Feil Foundation. If you'd like to support our work, please rate or review the podcast wherever you're listening and share it with friends. Thanks for listening and we'll see you next time.

S2, Ep4 Transcription

Compensation for climate change has been a hot topic at the UN since the early 90s. For countries already experiencing what the UN calls loss and damage the main goal has always been to prevent more damage. But fossil fuel lobbyists had different ideas. Now a new IPCC report gives evidence that could influence what happens at the UN and in court cases around the world.

S2, Ep5 | On Judges, Juries, and Precedent