287: Justice for the planet - the case for climate litigation

Full Transcript

Tom : [00:00:04] Hello and welcome to Outrage and Optimism. I'm Tom Rivett-Carnac.

Christiana: [00:00:07] I'm Christiana Figueres.

Paul: [00:00:08] And I'm Paul Dickinson.

Tom : [00:00:10] This week, we discussed the possibility of strategic litigation as a lever for change at a difficult political moment. And we speak to Laura Clark, CEO of ClientEarth. Thanks for being here. So, friends, I know we've all been excited about doing this episode on strategic litigation. You in particular, Christiana. And we'll get to that in a minute because this is one of your favorite topics. But before we do, I think we cannot ignore the things that are happening in the world around us and somebody well known to us. A friend has been elected prime minister of Canada, so I think we need to talk about that.

Christiana: [00:00:45] Indeed.

Reporter: [00:00:46] In first place, the next prime Minister of Canada, Mark Carney, with 131,674 votes, representing 85.9% of the vote.

Reporter: [00:01:01] All right. And there you have it. It took one ballot and a landslide victory. Mark Carney is the next Liberal Party leader, the next prime minister of Canada. And for now.

Tom : [00:01:12] So Mark Carney, of course, well known to many listeners to this podcast, former guest, of course, we've had him on a couple of times, former governor of the Bank of Canada than the Bank of England elected really in Canada on the basis of its ability to be a strong steward of the economy. This was an election inside the Liberal Party. It was not a general election. So he is nominated to lead the Liberal Party, who have been very far behind in the polls against the conservatives. Now it's looking a little bit closer. It is expected that Carney, who does not have a majority in the Canadian parliament, will come to power in the coming days and pretty quickly call an election that many commentators are saying will be determined based on who Canadians think can best stand up to Trump. So let's have a little bit of a listen now to what Mark Carney says about that issue.

Mark Carney: [00:01:57] We didn't ask for this fight, but Canadians are always ready when someone else drops the gloves. So the Americans, they should make no mistake in trade, as in Hockey Canada will win.

Tom : [00:02:11] So let's just have a quick chat about Mark because Christiana, you've known him well since the days of Paris and before he gave really quite remarkable speeches in which he brought financial stability together with climate issues back prior to 2015. He has been a real leader. There's no denying that he is a slightly controversial character in some ways, and we might get into that. But I think it is undeniably good news for climate that there is a robust leader in charge of one of the world's most important economies, who clearly prioritizes and understands climate. Even if he can't say that right at this minute cause he wants to get elected. What's your analysis of the role of Mark Carney right now in Canada?

Christiana: [00:02:47] Well, first of all, much as he has been a good friend for so many years and helped us so much toward Paris, and since then, I cannot believe that Mark has still not understood what America means. He said America is not Canada. And then he said, Canada never, ever will be part of America in any way, shape or form. Really? I thought Canada was part of North America. My dear Mark.

Tom : [00:03:16] Wow. It's like the ultimate thing designed to to sort of bait anyone who sees America as a continent rather than a country.

Christiana: [00:03:23] Yes. I'm so sorry. This is one of my pet peeves, but especially the leader or very soon, leader of one of the two top countries in North America ought to know that they truly are part of the continent of America. Anyway, we must write to mark about that one. But how refreshing to hopefully. Although, as you say, Tom, he does have to call an election and he has to win the national vote in addition to his party's leadership. But how refreshing to have someone who is not going to bow down to Trump in any way, shape or form to quote him, someone who is frankly a financial whiz, a very, very calculating chess player, moving.

Tom : [00:04:14] Very.

Christiana: [00:04:14] Strategic, very strategic. He knows when to move which piece at the right time for maximum impact, and he will go head to head with Trump, who compared to him, knows absolutely nothing about economics or finance other than what he sees or does on reality TV. And yet he is using the chips of finance, i.e. tariffs, to try to redesign the governance system of the United States. He is really playing with fire. He thrives on drama and dramatic effects and intimidating and ruling by force. That's who he is.

Paul: [00:04:56] Michael Wolff, who's written four books about Donald Trump. He actually explained Donald Trump quite brilliantly. First of all, he said he's kind of a fascist. But we forget that fascists don't have a plan. There isn't a plan. He spent 14 years as a reality TV host, and his sole driver, believe it or not, is ratings and conflict. And ultimately, he's a joke. I mean, a very bad joke. And we just have to wait it out like a terrible storm. So that's that's the sort of the Trump bit.

Christiana: [00:05:25] Yeah, yeah. But waiting out four years has huge consequences. But I take your point.

Tom : [00:05:30] Yeah.

Paul: [00:05:31] Well, you know, I wish we you know he may collapse under the contradictions soon. You never know. Somebody described the foreign policy as a Humpty Dumpty foreign policy. And for those who aren't familiar with the story of Humpty Dumpty, when I was sort of children's books, Humpty Dumpty was very much an egg. And the thing is, the egg falls off the wall and smashes, and you can't put an egg back together again. The Western alliance is gone, which is pretty mind blowing. The things you didn't expect to say, you know, a year ago. And the last thing to say is that the one thing that might be a check on Trump is the state of the markets, because they seem to be kind of not doing very well at all.

Tom : [00:06:03] And I think we know, Mark, over many years, he presents us this kind of suave. Someone said he's like the George Clooney of central bankers. Or he seems cool, like, you know, always has a line. He's actually very tough. Like behind the scenes. He's a tough negotiator. He's got a bit of a temper, in my experience, but in a good way. Okay, we will return to this issue. I think it would be great to do an issue where we dive deep into what's happening in Canada and the role they're going to play. P.D. has a comment before we move on.

Paul: [00:06:29] Yeah, I just think it's extraordinary to, you know, this crazy Trump stuff. You know, he's rolling back all these legal defenses, you know, to the point where, you know, the state now serves him. It's it's really gross. He gave this crazy speech Trump to the Congress where he said he's going to make the most dynamic and most Dominant civilization that ever existed on the face of this Earth. Just a week after our International Women's Day episode, I can't imagine a woman ever saying anything so sort of stupid and weird. But what I think is super interesting about Mark Carney is he is the first sort of politician to really take this and, and jujitsu it. He's using the sort of weird awfulness of Trump to give himself political power and political leadership and political strength. And I think we may see leaders around the world taking this enormous negativity created by Trump and using it to to promote themselves. And that could actually be good for liberal democracy and many of the things we believe in.

Tom : [00:07:27] Well, Paul, I mean, I find I have to squint very hard to see the silver linings in these times, but God bless you for pointing them out. I mean, that's a fairly oblique one, but from your lips to God's ears, as my grandmother used to say. Okay, right. So let's move on. Now this week we want to talk about litigation. We have over several weeks been talking about levers of change, ways in which we can still deliver real outcomes in the world at this moment with political headwinds. And Christiana. I remember when we started where we set this out, we were together in Costa Rica. We talked about all of the different levers we were going to explore, and litigation was the one. Your specific comment was, this is what I'm most excited about. So to kick us off, why didn't you explain why you are so excited about the potential of strategic litigation to drive change in the climate arena?

Christiana: [00:08:09] Yeah, I'm I'm so thrilled about it because it really is a systemic intervention. It has so many positive consequences from so many different angles. It keeps governments and corporations depending on who is the victim of litigation, accountable. It puts public pressure on both governments and corporations to act and to keep their commitments. It sets legal precedent in a field that has no history. We do not have a history of Climate jurisprudence because it's all very new to us. So it to me is just very exciting that the field of jurisprudence is like putting their nails into this topic and beginning to develop the body of jurisprudence that we're going to be using for decades. It has market impact. Companies facing climate litigation could maybe, yes, perhaps experience negative impacts, although we've seen that it doesn't always happen, but negative impacts on their stock price and reputation and hopefully then influencing their business practices toward better climate responsibility. And of course, my absolute closest to my heart. It champions human rights because it is human rights that are at the bottom of any responsible climate action.

Tom : [00:09:37] Yeah. And I think even though, as you say, we're developing the jurisprudence and the practice to deal with this issue, it's also true that there is actually a long history of using litigation and using the law to drive forward progress on big social environmental issues. So even though it's new, it's resting on really quite remarkable history over many years.

Christiana: [00:09:56] It's new in the field of climate.

Tom : [00:09:57] In the field of climate. Of course. Yeah. Yeah. Paul.

Paul: [00:10:00] Well, although there have been pioneering efforts for, for a very, very long time, but I mean, I want to frame this with a essentially a stupid comment. Destruction of the world through unmitigated climate change is against the regulations.

Tom : [00:10:13] So what you're saying is, if the regulations were properly enforced, we wouldn't destroy the world.

Paul: [00:10:17] Well, I mean, to give a really serious example of what I'm talking about, let us say that you went to someone's office or place of work or a university or something, and somebody had very dangerously left a cable or some dangerous piece of wood or something. And you and you suffered an injury through negligence. You know, you'd be able to claim probably, you know, quite a lot of financial damage if you'd suffered, you know, significantly personally. We have built massive, massive amounts of law to protect us from all sorts of relatively trivial things. Now we've done that because they're not trivial. When you get your leg broken or you lose an eye. That's not trivial at all. But my point being, we couldn't possibly have put in place so many protective systems and yet let the entire planet be destroyed and future generations suffer. So there's clearly a sort of intention in our existing law to protect ourselves. And I think that this is such an exciting area because it draws on that authority to kind of bring, I'm going to call it a kind of adult, responsible way of thinking about the problem of climate change. And that's incredibly exciting.

Tom : [00:11:22] Yeah. And I mean, if you look back at history exactly as you say, boy, I mean, I love that phrase. It's against the regulations. And we've seen in other areas. I mean, tobacco is a great example where in the end, citizens were able to take tobacco companies to court and get significant damages from them for the terrible impacts that that created on human health. We've seen landmark cases in the US. Things like Brown v the Board of Education, which was key in the US civil rights movement in ending segregation in schools. There was an interesting case in South Africa called the group boom case, where that was actually a major part of the end of apartheid because individuals who were living in terrible housing conditions ended up taking the government to court, which created the right to fair and acceptable housing in that country, which then led to lots of other social changes. So we are developing that muscle and we're understanding how law can be utilized. The question is, is it really?

Christiana: [00:12:13] Hold on, hold on. All very good examples, gentlemen. And of using strategic litigation for social change. But none of them add up to the systemic impact that climate change is already having. All of your examples are very good, but they're actually limited in their consequences. Yeah. Climate is not limited in its consequences. And that is the piece that I find so exciting that we're actually learning from these, what I would say isolated or limited ways of using strategic litigation for social change or for economic and governance change, but never have we done so at the level of the entire planetary system. This is the first time that we're doing that.

Tom : [00:13:06] So the question is, I mean, aside from describing Paul as isolated and limited, which I think is very unfair, really, but it's.

Christiana: [00:13:12] Not Paul I was talking about.

Paul: [00:13:15] It's projection, Tom. I mean, is it okay?

Tom : [00:13:18] Can you do that? I mean, that you say that's exciting, but the question is, is it feasible? Can you really, you know, okay, maybe these things are powerful in individual cases in individual countries on specific issues, but can you really use them to deliver systemic change that affects everyone and everything?

Christiana: [00:13:33] Aha. Well we don't know that yet. Right? But that's what I mean. The web of jurisprudence is being woven. The web is being woven.

Tom : [00:13:44] I can see the placards that the activism. The web of jurisprudence needs to be woven.

Paul: [00:13:49] And who's weaving it? You know, because I think that's a that's a really big question. I mean, you know, it's amazing cases of citizens bringing different kinds of actions. And this is where there's a really good combination with the tobacco, because it was the health departments of many US states who wanted to get damages for the people that they were caring for with lung cancer and other smoking related diseases. And just years ago, you know, I started in climate change as wonderful climate change lawyer who was looking at Moulins. These, these, these lakes caused by melting glaciers, which are very much attributable to human induced climate change because they wouldn't have occurred otherwise. And this was 20 years ago. This lawyer was fascinated by this notion of attribution, and this is really the heart of it, that the lawsuit in California doesn't talk about attribution. It talks about actually subversion of the political process. But some of these other lawsuits, and particularly the one against RWA, is looking again 20 years later at these pools, these lakes caused by melting glaciers and saying this is attributable, the damage is attributable. I think it's $17,000 or something. It's a trivial amount of money that they're trying to get, but they're trying to prove the point that this German electric utility caused the melting of a glacier on the other side of the world.

Tom : [00:14:56] Well, once you get that sense of attribution defined in the legal basis, then you end up in a completely different world, right? That's absolutely right. So we do know that the number of climate related lawsuits has surged significantly. In 2017, there was 884 cases. By 2022, that number was 2180. There is a massive increase in the use of strategic litigation to drive climate action, and I think we need to dive more deeply into exactly how that works and what we can expect the outcome to be. Paul is going to speak to one of the world's great leaders on this, Laura Clark.

Christiana: [00:15:32] See what happened to everything that I wanted to say?

Paul: [00:15:35] Yeah. What happened to everything that Christiana wants to say?

Christiana: [00:15:37] So actually, Tom, by next year, there already were almost 2700 cases by 2023. And I haven't been able to find the number of last year, 2024. But they are really growing exponentially. And they're also being much more expanded geographically because we now have more than 55 countries, including in the global South, where there are litigation cases now. The way that I think about this is that there are cases against companies, and there are over 230 of those, and those cases against corporations or trade associations could be brought by either private citizens or by state governments, such as California suing oil and gas companies. There's also litigation against national governments. And obviously the the key example there is the agenda case, a groundbreaking case that was won really against the Dutch government.

Tom : [00:16:41] And that was that was a while ago. Right. That was like 2015. That was the first one that really made me understand the impact of this.

Christiana: [00:16:47] And that was that was the first one, I believe, that was actually won. And that's why it was so important and actually had huge consequences for shell as a company having its headquarters in the Netherlands and then having to move out of the Netherlands. Et cetera, etc.. So huge consequences there. But then, of course, there's also international litigation that goes beyond the national government, and only 5% of cases are before international courts. And there a very exciting case is the one that is right now in front of the International Court of Justice, ICJ, because it is a case that began in 2021, when a group of law students not even fully approved lawyers yet. But young law students lobbied the government of Vanuatu to approach the ICJ for an advisory opinion on the state's obligations to address climate change. They were so successful that in March of 2023, the UN General Assembly adopted a resolution requesting the ICJ to provide an advisory opinion on states legal obligations regarding climate change, and that is what they are doing right now. The oral hearings took place in December, and we expect the advisory opinion to come out in 2025. Now, it is absolutely true that these advisory opinions are not legally binding, but they do provide significant guidance on international and national climate governance. Part of the web of jurisprudence.

Tom : [00:18:22] Okay, Christiana, thank you so much. I mean, so helpful to have that grounding in all of these different cases in this journey that the world has been on and it's been. I mean, I've never been deeply involved in this space, although just recently I have had the great privilege of joining the board of Clientearth, the organization that Laura Clark is the CEO of. So Laura will be with us after the break. Paul is going to interview her. She is the most brilliant individual former diplomat, former British High Commissioner to New Zealand and governor of the Pitcairn Islands, as well as High Commissioner to Samoa. Interestingly, one of the things that really fascinated me about Laura, she offered an expression of regret for atrocities committed during the first contact with indigenous peoples. And I think we've got a clip we can have a listen to.

Reporter: [00:19:04] Descendants of the people killed at James Cook's first encounter were brought to tears as the British High Commissioner delivered her statement of regret to the hapu.

Laura: [00:19:13] It is deeply sad that the first encounter happened in the way that it did. I would like today to acknowledge the pain and to reach out to you. In friendship. And in the hope that in acknowledging the past, we can forge a future relationship together.

Tom : [00:19:33] She is a deeply empathetic and human leader. I've been so impressed with her in her role on Earth. Please come back after the break and you will get a chance to hear Paul's interview.

Paul: [00:19:46] So welcome back to the second part of the show where I have the privilege to interview Laura Clark, CEO of Clientearth. It's a real privilege and a pleasure, and we've been looking forward to this a long time. So thanks for spending a bit of time with us.

Laura: [00:19:57] Oh, it's lovely to join you. I've been a huge fan, so thanks for having me.

Paul: [00:20:00] You've got this sort of super, super interesting career, having been a diplomat in the UK Foreign Office or the sort of international department in the UK government. And then you've moved on to be chief executive of an extremely interesting and systemically important NGO. So what's been the kind of inner journey that's taken you from your first career to your second career?

Laura: [00:20:23] Yeah, I suppose the best way to describe it is I've always been motivated by how we can affect change, how to change the world for the better. And I went into diplomacy because diplomacy at its best, it's about the art of the possible. How do you build understanding, build connections, work creatively with others to affect change? My last role was in New Zealand and Governor of the Pitcairn Islands, and the more I lived and worked in the South Pacific, and I saw that climate change in the South Pacific is existential, the more I realised I wanted to work on these issues full time. And it wasn't just climate change, it was also plastic pollution, for example. So Pitcairn has an island that is uninhabited but is one of the most plastic polluted territories in the world. And so I felt that I needed to use that energy that I have and the skills from diplomacy for climate in the environment.

Paul: [00:21:17] Just as tiny pushback. Isn't it government's job to deal with that in a way. So why not stay in government?