Causing foreseeable harm to millions

January 4, 2019

By Jesuit Father, Dr Pedro Walpole.  This article was originally published in Ecojesuit Online. 

For a more detailed history of what we knew when, see http://bit.ly/WhereHaveWeBeen.

“From this point there are two paths that can be taken. One is the investigation of the public record of these corporations in communicating their knowledge of climate warming and how it has changed while noting their exploitation of carbon resources.  The other is unpacking word for word the different sciences and predictive analysis that lead to attribution in terms of: 1) assessment, 2) foreseeable harm, 3) accountability, 4) attribution, and 5) risk and uncertainty that actuarial science can provide. These five areas are linking in a comprehensive manner the scientific and legal processes affecting the growing tide of litigation.”

Seemingly forgotten public documents and scientific studies are revealing the extent of the fossil fuel industry’s research on climate change as early as the late 1950s along with the warnings from the industry’s scientists, but these were taken over by the cover-ups and misinformation that followed during the 1970s and 1980s.  These were surprising revelations presented during the National Inquiry on Climate Change (NICC) by the Commission on Human Rights of the Philippines, conveying more urgently the urgency in addressing the increasing vulnerability of millions of people to the impacts of climate change.

The Commission brings this historical record to light by listening to the reports of climate investigators who have laid out the significant work done by the oil companies and the original and credible scientific work they financed, before management decided to bury the facts.  What is also surprising is the growing body of committed people globally, experts in the legal and scientific fields, whose work is in ensuring that this information goes out to more people so that more informed action for those most vulnerable is undertaken and that responsibility and accountability are obtained.

The Commission is hearing three kinds of witnesses.  First are life stories of the most vulnerable people in the Philippines; what they experience and what they understand “climate change” to be. These stories express the urgency for people losing their livelihoods and environmental security.  Second is the scientific and social understanding of the weather events, impacts, and responses in the Philippines.  None of these reports in themselves are proof of climate change but are presented more as evidence of the vulnerability to extreme weather events and seasonal uncertainties.  Third is the scientific evidence, investigative documentation of corporate activities, accountability, and the growing science of attribution.  Corporations are invited to send their counsels and to make themselves known during the hearings but so far have remained without; meanwhile the hearings are livestreamed.

Local stories

During the last six months of the NICC hearings, local community representatives shared their experiences and vulnerability to climate change.  Three community consultations were conducted in Tacloban, the provinces that compose the Verde Island Passage (Batangas, Marinduque, Occidental Mindoro, Oriental Mindoro), and Cagayan de Oro – Bukidnon providing venues for people to talk about how rural life in particular has become more difficult. Another community dialogue will be conducted in Alabat, Quezon in October. Key informant interviews and focused group discussions were conducted in Ilagan (Isabela), Alabat (Quezon), Tacloban (Leyte), and Libon (Albay).

It is very clear that people are suffering from the variability and extremities of the changes.  Changes and uncertainties of planting seasons, extreme hot weather, increased pests and diseases and affected water resources, devastating typhoons and depressions with a record of nearly a meter of rainfall, and the possibility of a coming El Niño, are all part of the picture.

Community anecdotal evidence, stories of farmers, fisherfolk and informal urban settlers touch the hearts but can be easily dismissed as legally inadmissible given the lack of scientific verifiable evidence and analyses.  This is why climate change needs to be investigated as a human right: the right to health, water, food, livelihood, and security from violent storms.

If these shifts in weather patterns that translate to deaths, increased vulnerability and loss of basic needs are humanly induced, then they directly impact human rights.  The purpose of this inquiry is to establish the impact of such events on people locally (by extension globally) and to lay out the possible legal process by which admissible evidence can be established for justifiable action.

Philippine scientific data and understanding of weather events

Scientific data and analyses in the Philippines identify the challenges while the findings of the different critical analysts explain not only the scientific and legal challenges but also the difficulties of attribution.

Global scientific evidence and legal re-definitions for attribution

A process is solidifying where the responsibilities of the Carbon Majors for human rights violations or threats resulting from the impacts on climate are being defined in legal terms and this takes time to reconstruct.  Thus, it is regrettable that corporations so well-versed in atmospheric science and aerosol diffusion today bury their interests in extraction and in the art of diffusion and confusion. This growing body of scientific and legal processes have never been presented in the same context and with the same comprehensiveness.  The Philippines is the first country to hear all of the different and connecting research and analyses that is consolidating the evidence as never before.

Where is the process leading us?

From this point there are two paths that can be taken. One is the investigation of the public record of these corporations in communicating their knowledge of climate warming and how it has changed while noting their exploitation of carbon resources.  The other is unpacking word for word the different sciences and predictive analysis that lead to attribution in terms of: 1) assessment, 2) foreseeable harm, 3) accountability, 4) attribution, and 5) risk and uncertainty that actuarial science can provide. These five areas are linking in a comprehensive manner the scientific and legal processes affecting the growing tide of litigation.

Understanding both these paths can lead to a questioning again of one’s basic scientific knowledge of the carbon cycle, why corporations are the focus of this inquiry, and the recent history of a known number (19 so far) of cases against corporations in the United States and a further 17 globally invoking human rights responsibilities of governments.

The pressure of climate change on poor communities is confirmed by global social development initiatives, affirmed by the UN Sustainable Development Goals (SDGs) that UN member states are asked to achieve by 2030.  Even as the planetary boundaries are spelled out and there is a call for a circular economy, there remains a need for a further level of action.

Corporate engagement in the process can much more quickly bring about change if it follows through on its own scientific findings and actively works for the “below 2 degrees C temperature rise” of the Intergovernmental Panel on Climate Change (IPCC), which will release in October 2018 a special report on the impacts of global warming of 1.5 degrees C above pre-industrial levels and related greenhouse gas emission pathways.  The IPCC was established in 1988 “to deliver comprehensive reviews on the scientific, technical and socio-economic state of knowledge of climate change, its causes, possible repercussions and response strategies.”

This NICC process has a global reach and is a sign of great hope.  It calls for greater listening and learning anew that there is a basis for action by all communities and societies. The hearings in New York (27-28 September) and in London (6, 7, and 8 November) with the legal associations show the interest and the need for extensive review.  Courts realize also their growing responsibilities as these actions are getting defined, not as political agendas, but as social responsibility and growing attribution.

We seek to share the work of the Commission and the interesting revelations along the way at the NICC portal of the Environmental Science for Social Change. The points presented above will be further discussed in succeeding articles.

Dr Pedro Walpole is a Technical Adviser to the Commission on Human Rights of the Philippines for the NICC, providing technical inputs and recommendations that the Commission can review and consider in the conduct of the public hearings, in the discussions with the Amici Curiae, and in the development of the final report of the Commission.  Dr Walpole has extensive experience in environmental work in the Philippines and in Asia Pacific and continues to engage with local and international discussions on the social and environmental impacts of a changing climate.

Understanding Human Rights and Climate Change:  Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights. States (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis. This was a submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change.

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

UN Guiding Principles on Business and Human Rights

UN Framework Principles on Human Rights and the Environment 

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010: This paper presents a quantitative analysis of the historic fossil fuel and cement production records of the 50 leading investor-owned, 31 state-owned, and 9 nation-state producers of oil, natural gas, coal, and cement from as early as 1854 to 2010..

Smoke and fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis: This report presents a comprehensive synthesis of the available evidence on what the oil industry knew about climate science, when they knew it, and what they did with the information. It combines that synthesis with an update on the latest developments in accountability research and science, which have dramatically improved the ability to identify the impacts of climate change on individuals and communities, the corporate actors that contributed to those impacts, and the nature of their contributions. The report presents this evidence in the context of the core elements of legal responsibility in tort and human rights law. It concludes that oil industry actors had early knowledge of climate risks and important opportunities to act on those risks, but repeatedly failed to do so. Those failures give raise to potential legal responsibilities under an array of legal theories.

A Crack in the Shell: New Documents Expose a Hidden Climate History: CIEL’s analysis of a massive new trove of Shell internal documents unearthed by Dutch journalist Jelmer Mommers shows the global oil giant understood and acted on climate science while publicly sowing doubt as to its validity and fighting its regulation. The analysis details a troubling pattern in Shell’s behavior: making declarations about the dangers of climate change while working with other companies to oppose climate action, including by spreading misinformation, then leaving after the damage has already been done.

Assessing ExxonMobil’s climate change communications (1977–2014): This paper assesses whether ExxonMobil Corporation has in the past misled the general public about climate change. It presents an empirical document-by-document textual content analysis and comparison of 187 climate change communications from ExxonMobil, including peer-reviewed and non-peer-reviewed publications, internal company documents, and paid, editorial-style advertisements (‘advertorials’) in The New York Times

The rise in global atmospheric CO2, surface temperature, and sea level from emissions traced to major carbon producers: This study lays the groundwork for tracing emissions sourced from industrial carbon producers to specific climate impacts and furthers scientific and policy consideration of their historical responsibilities for climate change.

Extreme weather event attribution science and climate change litigation: an essential step in the causal chain?: As climate-related loss and damage mount, there is growing interest in the role of law in dealing with the complex and multi-scalar problem of climate change. This article builds on a shorter piece entitled ‘Acts of God, human influence and litigation’ published by the authors in Nature Geoscience in August 2017. It is an interdisciplinary and cross-jurisdictional analysis of the emerging science of extreme weather event attribution (which analyses the human impact on extreme weather events), and the implications this new science may have for the law, litigation and the scope of the duty of care of a range of actors.

Inuit Petition Inter-American Commission On Human Rights To Oppose Climate Change Caused By The United States Of America: Ms. Sheila Watt-Cloutier, the elected Chair of the Inuit Circumpolar Conference (ICC), submitted a petition to the Washington DC-based Inter-American Commission on Human Rights seeking relief from violations of the human rights of Inuit resulting from global warming caused by greenhouse gas emissions from the United States of America.

Petition To The Inter-American Commission on Human Rights Seeking Relief From Violations Resulting from Global Warming Caused By Acts and Omissions of the United States: Sheila Watt-Cloutier, an Inuk woman and Chair of the Inuit Circumpolar Conference filed a petition to the Inter-American Commission on Human Rights (IACHR) seeking relief from human rights violations resulting from the impacts of climate change caused by acts and omissions of the United States. Petitioner requests the Commission to recommend that the United States adopt mandatory measures to limits its greenhouse gas (GHG) emissions, consider the impacts of GHG emissions on the Arctic in evaluating all major government actions, establish and implement a plan to protect Inuit culture and resources and provide assistance necessary for Inuit to adapt to the impacts of climate change that cannot be avoided.

The ICJ and other groups call States to join multilateral negotiations of a UN treaty on business and human rights: The groups called all States to take up the opportunity to strengthen a multilateral approach the issue of business and human rights by joining the intergovernmental process to establish a legally binding instrument in this field.

Anthropogenic influences on major tropical cyclone events: Relative to pre-industrial conditions, climate change so far has enhanced the average and extreme rainfall of hurricanes Katrina, Irma and Maria, but did not change tropical cyclone wind-speed intensity. In addition, future anthropogenic warming would robustly increase the wind speed and rainfall of 11 of 13 intense tropical cyclones (of 15 events sampled globally).

[INFOGRAPHIC] The Long Tale of Exxon and Climate Change: In the late 1970s, Exxon staked out a position at the forefront of climate science, but in the ensuing decades, the company migrated to the leading edge of denial. Exxon’s views and efforts on this critical issue–and how they fit into the company’s performance and the global perspective on climate change–are detailed in this timeline.

How fossil fuel companies responded to decades of warnings on global warmingKnowledge on the catastrophic effects of increased carbon dioxide (CO2) levels in the atmosphere has been around as early as the 1800s, and the top COemitters were even warned by their own scientists of the possible effects of these emissions to the climate.

However, along with the continuing research, warnings, and global initiatives to reduce the onset of global warming, there were also consistent campaigns from fossil fuel companies to spread doubt and denial on the role of man-made greenhouse gases to climate change, a timeline of which is illustrated here.

Shell Knew Fossil Fuels Created Climate Change Risks Back in 1980s, Internal Documents Show: A trove of documents shows the oil company’s scientists urged its leaders to heed the warnings. That could now play into lawsuits over global warming.

Fossil Fuels on Trial: Where the Major Climate Change Lawsuits Stand TodaySome of the biggest oil and gas companies are embroiled in legal disputes with cities, states and children over the industry’s role in global warming.

An investor enquiry: how much big oil spends on climate lobbyingInvestors are interested in the use of shareholder funds by corporations to delay and obstruct climate legislation. So far in 2016 alone, there have been over 15 shareholder resolutions filed by investors in the US with fossil fuel companies on the issue of influence over climate policy. Influence Map attempts to gain an order of magnitude estimate of a few, key representative oil and gas companies and trade associations to give investors and and other interested parties a feel for the amounts of shareholder funds being used for this purpose. Influence Map finds, estimating conservatively, that these five entities spent almost $115m per year combined on obstructive climate influencing activites, with the bulk by the American Petroleum Institute ($65m), ExxonMobil ($27m) and Shell ($22m).

Understanding Human Rights and Climate Change:  Climate change impacts, directly and indirectly, an array of internationally guaranteed human rights. States (duty-bearers) have an affirmative obligation to take effective measures to prevent and redress these climate impacts, and therefore, to mitigate climate change, and to ensure that all human beings (rights-holders) have the necessary capacity to adapt to the climate crisis. This was a submission of the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change.

Joint Summary of the Amicus Curiae: The following summarizes the amicus curiae briefs and submissions filed in Support of Petitioners Greenpeace Southeast Asia and the Philippine Rural Reconstruction Movement’s Petition Requesting Investigation of the responsibility of the Carbon Majors for human rights violations and threats of violations resulting from the impacts of climate change to the Commission on the Human Rights of the Philippines filed in November 2016. It also contains relevant updates.

UN Guiding Principles on Business and Human Rights

UN Framework Principles on Human Rights and the Environment