Newsletter: Climate Litigation Update, From Hawaii to Switzerland

 There have been a couple of major climate accountability stories over the past week that I want to bring you updates on. First, the carbon majors report has been updated and it found that the world's top emitters have just emitted more since the signing of the Paris climate accord in 2015.

Emissions have gotten even more concentrated in that time too, with only 57 fossil fuel and cement producers linked to 80 percent of global fossil CO2 emissions produced since the Paris Agreement was signed. The report is now part of Influence Map, which tracks lobbying efforts to delay climate policy.

And I spoke with both longtime carbon majors author Richard Heede and Influence Map program manager Dan Van Acker about this update.

That updated report is sort of the perfect setup for the other story we're going to dig into today, which is a historic ruling from the European court of human rights. The court ruled in favor of several older Swiss women who sued their government over its weak climate commitments and lack of action on climate, arguing that it was violating their right to a healthy environment. It's often referred to as the Swiss granny's case, and it's a really big deal that they won. I've got Lucy Maxwell, co director of the Climate Litigation Network with me today to talk about that.

It's all coming up after this quick break. I'm Amy Westervelt, and this is Drilled.

 For people that have read the other carbon majors report, what's should people be looking out for in this one?

 So, yeah, the main obviously new thing that influence map is bringing is we've updated the data fully to 2022 reporting. so the primary area of focus in our research is kind of focused on that new data. And the way we framed that is largely in assessing the period after the Paris agreement at the end of 2015.

So all the data from 2016 through 2022 and comparing the production and emissions data in those years compared to both kind of the recent period before the Paris agreement, but then also just more widely in the historical context, compared to the previous findings.

Top line what we find is some similar, but maybe even more dramatic statistics than what have been published from the data in the past. Namely, this very concentrated top line group of just 57 producers being linked to 80 percent of global fossil fuel and CO2 emissions since the Paris agreement.

 I was really struck by that too. The other thing that jumped out was, just this almost even split between the investor owned and state owned entities and I wonder, I don't know if that's something that, has been analyzed before, but, I'm seeing an increased awareness of the trickiness of dealing with the state owned entities and how , different it is from the investor-owned ones.

So, yeah, I wonder if you could speak to that a little bit.

 Yeah, absolutely. I'm sure Rick will have thoughts here too, but I can kick off on the data side. So definitely we wanted to highlight that, just because it is interesting that obviously the data is can be used to track the differences there. So notably, uh, investor owned companies account for a slightly smaller percentage since the Paris agreement, then the nation state and state owned entities also, although obviously still being very significant in global emissions in particular, where we do highlight it in the report is that in coal production in particular, we're seeing investor owned companies, coal production is slightly on the decline while state owned and nation state producers really continue to considerably ramp up their coal production. That's really where we're seeing kind of a shift between the companies in terms of supply dynamics.

Rick, I don't know if there's anything you want to add just from a larger or a wider perspective there.

 Well, we don't have reserves data in the carbon majors database, but, the state owned entities own the vast majority of the proven recoverable oil and gas reserves. So it's underscores the importance of keeping state owned oil and gas and coal companies in the carbon majors database and focus for policymakers around the world, whether it be charging them reparations fees or other ways of helping entities pay for climate damages, they should definitely be in the mix.

Not only their obfuscation and, uh, and statements at COP events, but also, how they, uh, invest even more, more capital into new reserves and new production capacity. Almost every company in the Middle East, Persian Gulf, are investing billions, if not tens of billions, in expanding capacity.

 I know you've been, looking at the carbon majors for a long time what's been jumping out to you in the last few years as there's been a little bit of movement on the policy front.

 I see more and more scientists and cloud modelers being interested in our results, uh, provided some data to people who are doing heat wave analysis and attributing responsibility for that. There are emerging programs, um, that I can't quite talk about at this point, but a lot of scientists and policymakers to some degree are interested in this data, so they can press the case against particular, both state owned as well as investor owned companies.

 Apologies if this already exists and I have missed it. Is there or are there plans to be a methane majors database anytime soon?

 A good question. I mean, well, within carbon major. So we do track, um, the, uh, methane emissions of some of the fossil fuel production processes, at least on our side. Otherwise, it'll probably remain at that for now. I don't know, Rick, if you have plans to expand your research, research into methane.

 Well, we do include estimated methane emissions in our database. So we report on gigatons of CO2 equivalent through their scope one emissions, but we don't, we don't link those to company declared methane emissions because I find those not plausible.

 We have a methodology to assign or estimate and quantify methane emissions on the basis of global oil and gas and coal emissions.

On a per ton basis, I'm not saying that's absolutely accurate. I'm certain it isn't, but at least we have an estimate of attributed methane emissions that aligns more with global emissions. Then I feel like the statements made by oil and gas companies themselves tend to be underestimates, but I'm not planning a separate methane database now.

 You mentioned that more scientists are interested in incorporating this data into attribution studies and things like that. Are you also seeing more, academic researchers and, lawyers and folks in the litigation space using this data as well?

 Yeah, I have provided data to a number of the cases now winding their way through courts in Puerto Rico, for example, in Multnomah County, and some state level attorneys general's efforts in that regard. And on the science end, I did a report with Carl Friedrich Schlusener and others on climate reparations just last fall, which I think you might have seen, but if not, I'll send you that report

 Yeah, no, I thought it was so interesting.

 And then I did a report with Marco Grasso in Italy on estimating quantifying emissions and reparations to the leading 20 oil and gas and coal companies, which then I filed an affidavit on behalf of Greenpeace Italy and Recommon, with a court in Rome in their case against the ENI. So this interest on, and this work on a number of different levels. And then scientists come to me and said, we'd like to massage your data to see how, how we can use that to quantify, attribution to carbon measures of various heat waves.

So, they've done a global search for heat waves and tying that to to carbon major submissions, and I'm sure there'll be a lot more work coming down the road. Now, that influence map will come out with an update this week.

 I find the stat about the increase in the seven years since Paris compared to the seven years before it to be both interesting and concerning.

 We don't have a handle on this climate change problem as you well know.

 So yeah, I'm curious what you both think is behind that. I know I'm asking you to, to speculate, but, especially since influence map does look at the lobbying component as well, what do you think is driving that? Is there a sense that like, I know I'll just say anecdotally that it seems like a lot of the oil companies are kind of racing to, um, tap their resources. while the getting's good. So I wonder if, if that's...

 I think you're spot on. That's what's behind it. They're good at extracting carbon and selling at the best profit and they are not yet concerned enough about potential stranded assets. Based on the assumption that the world will not act quickly enough to curtail production, and so they don't see a stranded asset issue, at least not the Western companies do, which have oil and gas reserves that might range from 6 years at current production to 12 or 14 years. Horizon for the existing reserves is, is fairly short, so they feel like they can outlast, um, dragons that are coming for them.

Saudi Aramco, you know, with more than a hundred years worth of reserves, that's a different proposition. I

 I do wonder if that's like, cause I noticed that, that the state owned ones have ramped up more than the investor owned. And I wonder if that's part of it, this, this desire to kind of, um, stockpile wealth from those reserves as much as possible before they lose value.

 think that's for far too long, and they would have to be concerned about the world getting its stuff together and curtail. Demand either by the efficient use of carbon or substitutes or alternative technologies like in transportation

 just to make the link back to what you said, Amy, on that point of that transition happening is obviously super dependent on effective policy. And they're exactly like influence maps research. We actually made the link in the report, highlighting some of the largest producing entities in carbon majors, we just see so many links to those companies being some of the most obstructive companies when it comes to engaging with climate policy globally.

And that's true, both for the investor and companies who are very actively engaged, but also for some of the state owned companies where we have data, they tend to be less transparent, but. Can take even more obstructive positions. So, yeah, we really do see a link there where obviously these companies are working against these policy processes that would enable or are required to enable the transition.

 We don't see shareholder resolutions having enough of an impact. I mean, I was hoping to get. More positive shareholder responses. So, um, at some point, large investors are going to express their concern and maybe ask the companies to funnel more of their capital resources into alternatives that can continue profiting from all of that high intensity carbon.

 I was really surprised that in the top 10 companies since Paris, that only two of the investor owned companies are in that list. It's really interesting. Cause I feel like a lot of the policy comms, even litigation, you know, efforts underway target the investor owned companies and.

I'm not, I don't know. I haven't seen a lot that has figured out how to, how to deal with this state owned problem. Maybe Dan, you know, something

 I mean, we do assess to some extent where these companies are active in engaging with policy that isn't just their own policy area. For example, Saudi Aramco, Gazprom, they're active in other policy areas. But yeah, it's largely, as I mentioned...

 Yeah, they're very intransparent. Where we do have data, they're highly oppositional to any sort of ambitious climate policy. We try to, to drive awareness of that among policymakers and campaign groups. But yeah, it is definitely a difficult problem to tackle.

 Can you talk through some of the methodology in terms of attributing emissions, especially, given that so many of these companies have joint ventures.

 We don't have access to the required data to look into every joint production agreement and joint ventures. And so we take the companies at face value for what they report as their net equity production. So, they might operate or produce oil in the Persian Gulf, but only have net equity of a certain percentage of it.

Which they report in their annual report, so we base our estimates on what they report as equity production.

 Like it's a bit of a problem with state owned companies. But it's, you know, I think we have a pretty rigorous method for quantifying that stuff too.

But I want to mention to Amy that, um, oil and gas companies are pretty facile at communication to the public and, and trying to convince the public that they are green oil companies to fuel, and that's probably overstating it on their behalf, but that they're taking climate change Seriously, and that they're reducing their emissions and they can declare that the emissions that they are responsible for, they're reducing dramatically in line with with the Paris agreement. But, of course, as you well know, better than anybody else is that they're not looking at their Scope 3, production related emissions and only claim progress. Albeit fair enough, they're making good progress in their regard on reducing scope 2 emissions.

You see ExxonMobil, for example, having reduced their scope 1 and 2 emissions from 125 million tons about 10 years ago, to around 100 or 105 million tons now.

Still a sizable number, I mean that says. That's a pretty big number just for scope 1 and scope 2. And then you add 3, you add 450 to 500 million tons.

 We have noticed this very strange increase in the, the investor owned companies like shell has done this with us now and Exxon, I think BP as well. Pushing a lot of claims that they're investing more in quote unquote low carbon solutions and then basically including gas in that.

I'm curious, if you're seeing the same thing and what you think of that.

 Well, I'd have been more sanguine about, natural gas if their fugitive methane rate was, was lower. It looks like Equinor, for example, producing completely offshore and using renewable electricity to run a lot of their facilities. Their natural gas is pretty clean, but most of the companies, Gazprom on down are not. So, I would like to see them put much more emphasis in reducing their fugitive and deliberately vented methane than I could buy a bit more into the notion that that's a bridge fuel to low tech technology, which has a ways to go.

I certainly agree that it's a fossil fuel, it's fossil gas. Most natural gas systems leak methane all the way from production to your home stove.

You know, investment in clean technology, by Shell and others, I think it's probably a good public gambit to phrase it that way. We certainly know that they're not investing nearly enough into really low carbon technologies. Exxon has abandoned its work on various aspects Of that, and we don't see companies being very serious.

I don't think that take the climate problem to be very serious that they're busy making money and we'll continue to do that for as long as I can.

 Yeah, I think we also have some data on our side to back that up. I mean, if we look in 2022, end of 2022, um, we compared a lot of the capital expenditure into green, supposed to green investment, uh, compared to fossil fuels as well as, you know, what that looks like on the marketing side.

And there's just such a big disconnect in terms of, The level at which these companies are putting out messaging around the importance of the transition and how they're contributing to it versus then actually looking at, as you say, their capital expenditure. First of all, how that compares green versus fossil fuels, but then also what they even define as green is often either not very transparent or in many cases includes unproven technologies like carbon capture, reliance on offsets or, as you say, even just including gas or certain types of of gas technologies in in that investment category. I think at the time we highlighted that perhaps the European majors were slightly better on this than the U.S. ones , but even now, you know, we've seen, like, I think it's BP and shell have both rolled back their emissions targets. So, even there, we're now kind of seeing a reversal of that.

 Yeah. I'm curious about that because it seemed to me like the European majors were a little bit, more worried, let's say about being sued around, you know, reneging on Paris commitments. Does that seem like it's, it's gone away or they're just like, who cares? We're making more money. So we'll deal with the lawsuits.

 Yeah, I think it's tough to say. I don't know if you have higher level insights, but I think it probably comes back to what we were talking about earlier where, maybe a few years ago, it seemed like the, there was wider push for the transition also from the investor side. And now, um, that we are seeing, profits rising again in, in oil and gas, that these companies are trying to continue to eke out those profits while they still can.

 One last question for both of you two is that given this data, it feels very hard for the industry to claim that they're on track or part of the transition and all that stuff. How would you like to see people use this data to push them towards actually getting on track with those commitments?

 I would like to see large investors and shareholders bring it up at their annual meeting, as many shareholders have been trying to do, but I think that is a leverage point. Their own investors will raise objections to their capital investment plans as not respecting the climate science. I mean, there are other ways of doing that, but shareholders have an important role to play.

 Yeah, I mean, I agree with that. I think also the power of the data is that it can be used in so many different ways to hold these companies to account. So also kind of the legal side that we've talked about that Rick mentioned and the academic side, but also campaign groups can use this data, as well as the financial sector.

I think that's where the power is and using this data so widely by these different stakeholders who have impact in their own different mechanisms.

 I'd like the product information hazard placards of gas pumps, saying this, from this gas pump causes greenhouse gas emissions. Here's, here's what it is per gallon pumped.

That's difficult, but I think we need more public warnings, like we're dealing with cigarette packs.

Meanwhile, in Europe, a landmark ruling from the European Court of Human Rights that's likely to have major ripple effects throughout the European Union. This is interesting in the context of the Carbon Majors report, particularly given the growing divide between investor owned and state owned oil companies on the question of energy transition.

Obviously the governments of Saudi Arabia, the United Arab Emirates, and Qatar are not beholden to the European Court of Human Rights, but Qatar is the number one supplier of gas to Europe at the moment and has successfully locked in outrageously long contracts there. And the U. S. is right behind them battling for number one.

The European market is shifting and it's going to shift even more as governments are increasingly forced to actually comply with their climate commitments. That's going to have a big impact on suppliers in both the Middle East and the U. S. And could also really shift the math in Asia, which will be the target customer for fossil fuels that Europe doesn't want.

All that from one case in Switzerland that has been somewhat patronizingly referred to as the Swiss Grannies case. Here's Climate Litigation Center co director Lucy Maxwell with more on that case.

 Yeah, my name is Lucy Maxwell. I'm the co director of the Climate Litigation Network.

 Can you just, outline briefly the cases that we were expecting rulings on today?

 Right. Well, there were three cases the European Court of Human Rights was giving its ruling today. The first was a case brought by senior women in Switzerland against the Swiss government because of its weak climate action, especially around its 2030 target. There was a case brought by Portuguese young people against 32 governments in Europe, looking at each of their actions when it comes to climate change and finding that they all fall short of best available science.

And finally, there was a case brought by a French mayor against the French government, again, because the government had failed to meet its own targets to combat climate change. And they were all alleging that those failures by their governments amount to violations of their human rights. Because of the impacts that climate change will have now and in the future on the enjoyment of health, family and private life and their mortality.

 I know we're going to dig into the details, but at just a high level, can you tell me what these rulings said about each of those cases?

 So the European Court of Human Rights, upheld the Swiss senior women's climate case. And fundamentally the court found that the climate crisis is a human rights crisis, that governments have legal obligations to take much stronger action to protect people's human rights. And in this case that the Swiss government's efforts to reduce emissions were not in line with best available science.

They didn't have a clear plan of targets for the period up to 2030 and they had not even met their own targets. And so for all of those failures, the European court found that that constituted a human rights violation because the state was not protecting its people from the harm posed by climate change.

And it was looking particularly at the harm that senior women in Switzerland would experience because of the heat waves and other impacts that would happen in that country. So it found that the Swiss government had violated its human rights obligations. And now the government has to go away and create.

A robust and science based climate plan, especially before 2030. And that's what we're all focused on government action now to ensure that by 2030 we have massively slashed emissions in order to protect all of our, our futures.

In the Portuguese youth climate case, the European court found that it wasn't possible for the Portuguese young people to jointly sue 32 governments together in Europe at this European human rights court. What the court found was that because the young people are living in Portugal, it was necessary for them to take their case only against the Portuguese government and back in the national courts. The court just was not willing to accept that the nature of climate change, because everyone contributes to it, means that it's possible to sue multiple governments together.

And this was quite a new and complex argument that the Portuguese young people were making, but unfortunately the court did not accept that part of it, and they didn't go further to look at any of the other aspects of the claim, but they basically said, If you want to bring your case, you can bring it against Portugal, but you must go back to the national courts to do that.

In the French mayor's case, the European court of human rights found that he was living in France and he could sue the French government, but unfortunately he no longer lived in the place in France where he was alleging the climate impacts were happening, which was sea level rise. He now lived in Brussels, Because he's no longer the mayor of that place. He, he has work, um, outside of France and because he's not located there, he no longer has that ability to bring, bring the case. So a lot of the decisions of the court in these three cases focused on who was bringing the case. and against which kind of government. And that shows you that access to the courts can really depend on where you're living and which government you can sue.

 It sounds like a lot of, uh, jurisdictional stuff being worked out too

 yeah. And in some ways it, it's still a very traditional approach to who can bring a court case, even though we know that, One country's emissions have huge impacts on people living far outside its borders.

 But this decision, these decisions today don't open the door to those kind of global claims. It's a quite traditional approach, as far as we can tell, and it means that, yeah, it looks like the first port of call is the government. in the country that you're living. And obviously for some, for many, many affected communities, especially those, in low lying islands, um, in the global South, in a range of developing countries, the countries in which they're living are not the primary countries that have contributed to the climate crisis.

 that I think is going to be a topic that many people will be discussing in the weeks to come. What does this mean for the global justice aspect of climate litigation.

 Yeah, that's interesting because I was just also reading about how, Shell is being sued in the U. K., for example, for impacts in Nigeria. Because the company has a headquarters in the U. K., that can work as sort of a global case. But yeah, it's interesting that it can't be the government of another country

 So I want to dig into the I'm, I'm going to call it the Swiss granny's case. I've been indoctrinated into calling it that. I know you were just saying it's a more traditional approach.

And yeah, this is the first time, if I'm not wrong, that, that the court has affirmed that yes, this is actually a human rights violation. So, , I'm curious to hear from you what does that mean and, and why is that important?

 absolutely. The, the central finding in the Swiss case is completely groundbreaking. It's the first time that that European Human Rights Court, the highest court in Europe, has found that climate change affects human rights now and in the future, that governments have legal duties to protect human rights in the context of the climate change, in the context of the climate crisis, and that they need to adopt science based targets to prevent further dangerous climate change.

This ruling will have huge implications Not just for communities in Europe who are already taking their governments to court for weak climate action, but all around the world where there's this movement of people who are turning to the courts as a last resort because their governments are failing to act fast and effectively.

Transcription

Lots of news lately on stories we've been following, so in today's episode: an update! The landmark Carbon Majors report has been updated with some surprising new data, and the European Court of Human Rights has sent down an historic ruling that will shape how EU legislators look at energy and climate.

Climate News Update: The New Carbon Majors + Swiss Elders Win Landmark Climate Case

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Climate News Update: The New Carbon Majors + Swiss Elders Win Landmark Climate Case

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Newsletter: Climate Litigation Update, From Hawaii to Switzerland