How UK cities could start suing over extreme weather

Local governments in America are suing fossil fuel companies for damages caused by climate change – could the UK follow suit?

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“Send bread”, people in Ireland scrawled across their snowy windscreens and gardens last month, after Storm Emma sparked panic-buying in shops. The light-hearted phrase quickly became a meme and will live-on as part of the UK’s so-called “Blizzard spirit”. But along with the wry jokes and heart-warming acts of kindness, this winter’s extreme cold also brought painful costs.

Some of these costs are calculable. Analysts told the Guardian that the UK economy took a daily hit of a billion pounds during the storm. In London, 5,000 homes were left without water after pipes burst from the cold. Yet others are less easy to put a figure on, such as the death of the millions of sea-creatures washed up on Yorkshire’s beaches as temperatures plummeted.

Scientists warn that similarly extreme weather, from floods to heatwaves, may become more commonplace as the global climate continues to warm. But, if this is to be the case, who will pay the bill?

In America, there are demands for compensation from the fossil fuel industry itself. Several city and county governments have filed lawsuits against the world’s five most powerful oil companies: ExxonMobil, BP, Chevron, Conoco-Phillips and Shell.

They argue that these corporations knew of the negative effects that fossil fuels have on the global climate, yet continued to profit from their sale, and therefore must be held accountable for some of the adaptation costs – from building sea-walls to upgrading storm-water infrastructure.

Sophie Marjanac, a lawyer at the environmental lawfirm ClientEarth, and David Miller, a Regional Director at the network of climate-aware megacities C40, are both optimistic these lawsuits could help herald a breakthrough in action on climate change – thanks to a series of developments that are helping pin down the specifics of what, who and how.

The first of these shifts is the rise of “attribution science”, which investigates the extent to which individual extreme weather events can be attributed to man-made global warming. Across the world in 2016, scientists identified a number of meteorological changes that they judged to have been "only possible" as a result of climate change.

A second is researchers' new ability to tie specific quantities of global emissions to individual corporate actors. This meant that the recent New York City lawsuit could argue certain oil companies are collectively responsible for “over 11 per cent" of all industrial carbon and methane pollution since the dawn of the Industrial Revolution.

And a third development is the emergence of new evidence surrounding what fossil fuel companies knew about climate change, and when they knew it. “I think the parallels to the cigarette litigation are really fascinating,” says David Miller of C40. "We know from other public disclosures that a number of the oil companies have known for over 30 years that their activities were causing climate change. And yet at the same time they were publically denying its scientific basis. They were institutionally dishonest.”

So why have British cities not yet done likewise? What is holding mayors like Sadiq Khan back?

The following questions point to some of the pitfalls a UK lawsuit could face - and the opportunities launching one might bring: 

1. Could similar suits be filed under UK law?

According to Sophie Marjanac, there are a number of differences in the British legal system that make replicating such lawsuits difficult. One is a question of costs. American legal firms are able to arrange fee-agreements, which their clients pay only if they win. Yet in the UK, losing a case could mean you become liable for the other side’s costs as well as your own. Another is class actions on behalf of groups of people, which are more common in America. And a third is that the laws around public nuisance haven’t yet been used in relation to climate change in the UK.

But that doesn’t mean such a suit couldn’t be filed in the future. “What [the New York City] lawsuit reveals is what questions society should be asking about who should pay for the physical costs of adapting to climate change,” says Marjanac. “Who is going to pay for upgrading the Thames barrier and critical infrastructure? And constructing seawalls in the North of the UK? Those questions haven’t been asked in this country and perhaps they should start to be asked.”

A 2013 journal paper, published in the Utrecht Journal of International and European Law, has already identified a British legal precedent that could provide a “jumping-off” point for such a suit. In the 2010 case, which involved the prosecution of a property developer for causing flooding on the plaintiff’s nearby land, the High Court of Justice Court of Appeal ruled that the local borough of Rochdale also had a "duty of care" to intervene.

2. Can climate change be linked to UK weather damage?

Bringing such a case in Britain would be easier if there were already clear evidence linking UK storm damage to climate change. Attribution studies in the US have argued that the storm-surge of 14 feet seen during Superstorm-Sandy was far more likely due to recent sea-level rise – but London has experienced no single extreme weather event of comparable scale, nor clarity of attribution. The Met Office was particularly loathe to make the link to climate change in the case of the recent storm Emma, though this remains a subject of wider debate.

3. Is the London Mayor best placed to file such a suit?

Another problem is that American mayors have much wider powers than their British counterparts. “In the US, the city and county governments are seeking a contribution to the adaptation costs of climate change,” which can range from everything from building sea-walls to upgrading water utility systems, Marjanac explains, whereas the mayor of London has more limited responsibilities and thus a more limited claim to compensation.

The filp-side of this situation, however, is that there are a number of other potential UK claimants – The Environment Agency, Thames Water and local authorities – who Marjanac says all need to think about what future costs they are going to incur to cope with a changing climate, and how those costs will be met.

There is also a possibility that the present American lawsuits will pave the way for an even greater range of plaintiffs. According to David Miller, there is a likelihood that shareholders and regulatory authorities could eventually sue oil companies for knowing about the impacts of burning fossil fuels and yet doing nothing for so long:

“Someone will act on that at some point, just like they did with tobacco. I think the result is that those major oil companies are going to have to start to pay the cost of their actions – and that is going to assist greatly, particularly in building resilience and in helping urban areas adapt to the increasing severity and frequency of storms.”

4. What significance would a UK lawsuit have?

Even if a UK city or local government launched a lawsuit and it failed, it could still help bolster the growing global movement for change. Just this week, a commission in the Philippines heard evidence at the world’s first ever national inquiry into the impact of climate change on human rights. From America to Uganda, young people are suing their governments for failing to uphold their rights to a healthy environment. And closer to home in the UK, the government is facing a lawsuit from the legal firm Plan B, which argues the UK’s 2050 carbon target is not in line with the Paris Agreement goal.

There are also important political gains to be made in these cases. In San Francisco and Oakland’s lawsuit against the major oil companies, the oil giant Chevron has already conceeded that “there’s no debate” about the science of climate change. This is key addmission to have on the record at a time when the US President has filled his administration with climate sceptics.

Plus there is hope that, directly or indirectly, such cases will help mobilise investment for adaptation. Through a host of measures, including electrifying transport systems and upgrading buildings, David Miller at C40 is optimistic that the world’s cities can meet climate challenge: “New York City’s action in litigation is important because it demonstrates the seriousness of this issue […] We need to act now.”

The oil giants will most likely argue that they can not be held liable for the production of fuels that are still in high demand. But each lawsuit against them will push important questions surrounding duties of transparency and care. Coming clean on this history could yet prove instrumental in cleaning up the planet.

India Bourke is an environment writer and editorial assistant at the New Statesman.