Attributing Extreme Weather to Climate Change: A New Opportunity for Climate Justice?

Author

Luke Jelleyman

Climate justice and extreme weather attribution are some of the most exciting, yet highly complex, fields within law; it was the focus of last week’s event at OCS, with the two speakers offering their expert views on both the scientific and legal aspects of the topics' history and future. It boils down to the question of whether those responsible for global warming (through the emission of GHGs) should be accountable to those people suffering from its consequences, generally analysed on a national scale.

Dr Friederick Otto- Deputy Director of the Environmental Change Institute

A graph from the 1990 IPCC inaugural report was Otto’s first source in evaluating the science behind attribution of extreme weather events, plotting temporal temperature variation. It was stated that our observed record of forcings, which are factors affecting the climate such as solar radiation, natural aerosols and greenhouse gases, gives rise to useful long-term trends. What is more uncertain however concerns the response to these forcings, comprising of their relative scale and anthropogenic contribution. This is a crucial admission as the legal premise of climate justice is that extreme weather events are principally caused by economic actors (energy/transport firms, compliant governments…); therefore, the models analysing such events might not possess the level of confidence required to facilitate a legal claim.

This problem is summarized by the fact its ‘generally impossible to state human impact was solely responsible’; instead, Otto’s work focuses on the assessment of changes in the likelihood of events due to human activity, whether it be a temperature rise, change in moisture pattern or alteration of meteorological currents. This likelihood is broken down into ‘counter-factual’ and ‘actual’; the former is essentially a control variable created by scientists to represent the world in which such forcing-change was absent, to be compared to the ‘actual’ constructed through observation of real-world data. These variables are utilised in cost-benefit analysis to weigh up the potential gains of a project against the likelihood of those advantages actually coming to fruition, with examples including artificial levees defending against flooding or the promotion of a new crop variety in a region of forecasted meteorological change. Time-return plots are used here to aid policy makers and economists in assessing the long-term, particularly relevant given many extreme events are still scaled as 1 in 100/500 years occurrence.
The possible outcomes ascertained from these models are broken into four categories, in relation to the correlation between the forcing and extreme event: more likely, less likely, no impact on likelihood, limitation by current tools to assess rigorously. The first two are fairly basic, whilst the latter indicate the complexity of climate change law; in many cases, there just isn’t enough statistical significance to definitely state an anthropogenic forcing contributed to a localised event. A similar dilemma is ideas of such relationships being constrained to simply, ideas, as our models don’t possess the technological power to monitor the forcing or event’s nature. Wrapping up these issues is the interrogation of what an ‘event’ actually is, defined in terms of meteorogical boundaries on a long and continuous spectrum of cases.

Sophie Marjanac- Lawyer for Company/Financial Damage at ClientEarth

Sophie started by laying out the definitive disrupting factors of climate change when applied to traditional legal fields. The most obvious was the multiplicity of jurisdictions, which relates to the transboundary operation of forcings and events that makes regulation by any one nation’s law extremely difficult. Furthermore, scientific complexity makes the topic particularly difficult to understand, subsequently limiting discussion and legal practice to a select few. Uncertainty in calculations isn’t compliant with the ‘black and white’ position of law, whilst the severity of impacts produces a debate heavily surrounded in moral and ethical questions. An example is why the seemingly powerless islanders of Male are threatened by the activities of economic production distant in the industrialised first-world countries. Another is the possible enhancing of conflict due to shortage of natural resources, driven by extreme weather events (e.g. Syrian Drought). All of these factors construct the premise that these events cannot be confined to classes of liability, meaning the respective defendants and proponents are exceptionally difficult to identify.
This need not serve a death sentence to climate justice however. Sophie’s firm, ClientEarth, have presented multiple beneficial implications of attribution science for law: firstly, those aforementioned models are producing more detailed evidence of specific quantifiable harm at the sub-regional level, which is the initial driver of a case and could be increased floodwater prevalence around a Nepalese village. Secondly, foreseeability has been improved regarding the magnitude and frequency of future events, providing crucial context for the wider significance of localised ‘unimportant cases’. Finally, legal duty is being promoted in relation to climate change far more today, relevant to governments in their responsible contracting of infrastructure firms and energy needs.
But how does this change our chances of climate justice in comparison to previous decades. The first wave of tort litigation in the United States provides a scope for viewing previous failings. ‘Causation’ was hampered by lack of model data to reinforce arguments stating anthropogenic forcings were responsible, in part, for an event experienced by a different group. Pre-emption was unlikely given the far lower extent of knowledge about climate change impacts before the launch of the IPCCC, meaning economic actors simply weren’t aware of the implications of their pollution. Justiciability also constrained cases before, as courts, aware of the international scale of global warming, had more limits placed upon their authority to deliver controversial verdicts.
Current cases demonstrate positive developments as the law attempts to move beyond this troubled past, such as the inclusion of human rights as a consideration in the Philippines’ Commission on flooding. Local governments can exert more power now, which is necessary given the impacts of certain extreme event may only affect part of a national territory. This, in combination with a presently-resistant US Administration to scientific understanding, creates the background for US State claims against the carbon majors. This issue promotes our final factor to accompany the better science and increasing loss and damage; increasing awareness of negative institutional behaviour, either through a lack of political activity or evidence of deliberate concealment of risk. The transformed EPA’s inclination to avoid important terminology relating to ‘climate risks’ or ‘anthropogenic-induced’ highlights this clearly, and will be central to the future of climate justice success.

Question Summary

There were 3 particularly thought-provoking questions asked after the speakers’ presentations, the first highlighting the relationship between their respective fields. Sophie described the cooperation of lawyers and scientists as having developed recently with the first attribution case, but reminded us that scientific integrity needs to be protected; this is because scientists would likely be the expert witness, hence need to be seen as an independent ‘group’. Another audience member asked about the assessing of uncertainty in cases; a five-step process addresses this, broken down into- what happened, the effect, observational data cause, definition of event, trade-off between impact and reasonable simulation. Finally, the role of the ICJ was brought up in relation to international cases; Sophie reverted to the initial climate change ‘barriers’ for law application when explaining the supposed absence of the International Court of Justice in the climate area, emphasizing the difficulty of claiming ‘deliberate harm’ (by causing extreme events) was committed among nation states. This is perhaps the main feature that has changed recently, with increasing availability of information regarding climate change impacts; we’ve witnessed an extreme lag in legal responses to the global warming issue, but surely are finally accelerating on a long road to fulfilled climate justice.