Dr Friederick Otto- Deputy Director of the Environmental Change Institute
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
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.