Some climate activists aren’t suing over the future—they are taking aim at the present

Some climate activists aren’t suing over the future—they are taking aim at the present
.

This article was originally featured on Hakai Magazine, an online publication about science and society in coastal ecosystems. Read more stories like this at hakaimagazine.com.

Brianna K., a 15-year-old girl known as Ku, loves hearing her family tell stories about the wildlife that they grew up around the shores of west Maui and Hawai’i. These stories tell of diverse and vital ecosystems. They also tell stories about things that have been lost.

Older generations may talk about the different seaweeds and fishes they used to see in the same places I swim in now. Ku says that you don’t see much of it when you go out there with your dad, my parents, or your cousins.

In the past few years, Ku has seen her father’s farm produce fewer fruits and vegetables. Her family’s kalo –, a Hawaiian staple crop, is also shrinking. Fishermen are also bringing in smaller amounts. Ku said that she learned these signs from school about climate change and how it is affecting her community.

Now Ku, alongside 13 other young people, is suing the Hawaiian government for its failure to protect her constitutional right to a clean and healthful environment. The lawsuit was filed in June and supported US nonprofits Earthjustice and Our Children’s Trust. It challenges the state’s Department of Transportation’s operation of a transportation system that, according to the youth, prioritizes fossil fuel-powered cars over public transit, thereby contributing to greenhouse gas emissions. Their goal is to force the department to fully decarbonize by 2045.

Over the past two years alone, nearly 500 climate change-related lawsuits have been brought to courts around the world, according to a report by the London School of Economics’ Grantham Research Institute on Climate Change and the Environment.

But where most of these lawsuits pitch climate change as a problem that has yet to unfold–either by challenging government carbon targets and policies, or by accusing fossil fuel companies and other high-polluting industries of spreading misinformation or cutting their emissions too slowly–Ku and her co-plaintiffs’ lawsuit is just one of many recent legal challenges that is taking a new approach to try to force governments to reckon with climate change.

They argue that Hawaii’s emissions of carbon are affecting Ku’s right to future livelihoods, and culture, and they are also suing for the damage that has already been done.

To Kim Bouwer (a Durham University legal expert focusing on climate and energy), the case follows the example of one of the first lawsuits explicitly linking climate change to current damage.

In 2008, the residents of Kivalina, an Alaska Native village on the edge of the Chukchi Sea, sued ExxonMobil and other fossil fuel companies for the damage the community had already felt from climate change-induced flooding and coastal erosion. Bouwer says that Kivalina residents clearly documented the effects the community felt. Bouwer adds that the problem was that the courts didn’t want to hear them .”

.

The Kivalina lawsuit was dropped. In her decision , the US district judge Saundra brown Armstrong, stated that regulation of greenhouse gas emissions is a political issue and not a legal one. She wrote that it was a political issue and needed to be solved by the US Congress. The last attempt to take the case before the US Supreme Court was also unsuccessful.

Over the past 14 years, however, judges, at least in some jurisdictions, seem more willing to accept that people who are suffering the worst impacts of climate change have the right to make those arguments in front of a court.

Something else important has changed since those in Kivalina filed their lawsuit in 2008; scientists have vastly improved their ability to directly link real-world events to climate change.

A report by the United Nations Intergovernmental Panel on Climate Change, published in February, states that climate change has irrevocably disrupted natural and human systems. It states that anthropogenic warming has already caused significant damage to ecosystems and water security, food production, as well as people’s health and well-being. Climate change is already disrupting cities, settlements, and infrastructure–especially in low-lying small-island developing states and atolls, which are particularly vulnerable to sea level rise.

While broad, comprehensive reports such as the IPCC’s have helped to build a scientific foundation for explaining climate change, they are not always enough for a court to conclude that a specific change in one place or an extreme event like a hurricane, heatwave or flood was directly caused by global warming.

This is where the fast-moving field attribution science comes in.

Scientists are now able to cut through the noise and show how climate change has made an extreme weather event more likely. Some recent examples, among many, show how climate change increased the chance of devastating bushfires in Australia in 2019 and 2020 by at least 30 percent. It exacerbated heavy rainfall in South Africa in April 2022, making the devastating flooding that killed hundreds of people and displaced tens of thousands heavier and more likely. Global warming also accelerated a long-running heatwave that decimated crops and killed many people in India and Pakistan.

” We know so much now about the science,” said Bouwer. Bouwer states that it is possible to provide enough convincing scientific evidence to link corporate behavior to climate change, and to attribute specific events or impacts to climate change. This is what you need in order to win a lawsuit.

Against this background, litigants such as Ku are moving forward.

While the lawsuit against Hawai’i’s Department of Transportation was filed just a few months ago, roughly 7,500 kilometers to the southwest, Torres Strait Islanders are fighting a similar fight–though theirs is much further along.

Located between the northern tip Queensland, Australia and Papua New Guinea in the Pacific Ocean, the Torres Strait Islands is largely populated by Torres Strait Islander communities with their own cultures, languages, identities and identities. These islands are very low-lying and are among the most vulnerable to climate change. Data from the Torres Strait Regional Authority shows that sea level around the islands is rising by six millimeters each year–twice the global average.

For years, Torres Strait Islanders fought against climate change. This included a three-year effort by Australia to sue Australia for violating their fundamental rights to culture, life, and property, as well as failing to reduce national carbon emissions. In September ,, the UN Human Rights Committee agreed to them and recommended that they be compensated.

Two Torres Strait Islander residents are choosing a different path. Guy Paul Kabai, Pabai Pabai, and Ku in Hawaii sued the Australian government. They claim that Australia violated its legal obligations to stop the loss of their communities due to climate change. Their lawyers said that Kabai and Pabai’s case was unusual because it was brought by people who are suffering from the effects of climate change against their state, which is one of the largest per capita carbon dioxide emitters in the world.

In their filing, Kabai & Pabai describe the range of dangers Torres Strait Islander residents are already facing: higher average temperatures; more frequent and severe heatwaves; coastal erosion and stronger storm surges. Even cemeteries are at high risk. These documents show how salt water has contaminated freshwater ecosystems on land. Warming and acidification in the ocean have caused visible coral bleaching, and are disrupting marine food webs.

Kabai, Pabai don’t hesitate to call climate change a threat to their communities. “Our ancestors have lived on these islands for more than 65,000 years,” says Kabai in a press release. “If we take away our homelands, then we don’t know ourselves.” We have a cultural obligation to ensure that this doesn’t happen, to protect [our] country, our communities, culture, spirituality, and culture from climate change

In yet another case, in Indonesia, four residents of Pulau Pari are hewing closer to the playbook laid out by the residents of Kivalina in 2008.

Pulau Parai, an island located a few kilometers northwest of Jakarta has seen flooding and extensive damage to homes, streets and businesses. Instead of taking action against the Indonesian government the residents of Pulau Pari sued Holcim, which is a Swiss company that makes cement, concrete and other building materials.

The islanders argue that because Holcim is one of the 50 biggest carbon dioxide emitters in the world it bears a proportionate responsibility for the resulting climate change. They demand that Holcim reduce its carbon dioxide emissions to prevent future harm and ask for money and compensation to help build flood defenses.

It remains to be seen if the courts will rule in favor Ku and other Hawaiian youths, Kabai and Pabai or any other plaintiffs in similar cases. But unlike the residents of Kivalina, who tried and failed to secure a judgment in 2008, many of the cases underway now are standing on a stronger legal footing.

The Hawaiian claimants are especially optimistic. Leina’ala Ley is a senior associate attorney at Earthjustice who was co-counsel in the lawsuit. She says that the basic principles of climate science are well-established in Hawaiian politics. The state’s supreme Court has already ruled that climate change “harms future generations” and that Hawai’i “is vulnerable to the ecological damage that a unhealthy climate system .”

causes.”

Ley says that many dangers are easily visible on the island, including drought conditions and roads falling into the sea. “We don’t have to look at the future. To see the extent that climate change is causing havoc .”

, we can simply look at the present.

For Nikki Reisch (Director of the Climate and Energy Program at the Center for International Environmental Law in Switzerland), the rise in lawsuits like this reflects the deep social and geographical injustices caused by climate change.

” “It’s not surprising that many of these cases were brought by islanders, or island populations. They’re amongst the most vulnerable…to the truly existential danger that climate change poses,” she said. “As the destruction caused by climate change becomes more apparent, it will be easier to connect the dots between pollution activity and the failures to reduce and regulate it–and harder to deny responsibility .”

Reisch says that it is only right that lawsuits are brought against high-emitting wealthy nations and largest polluters “that are responsible to the lion’s-share of the planet-warming emission to date .”

Ku is a keen observer of the stakes. “It would be great to see the same things that my grandpa saw growing up. Or to be able work on my family’s land in the valley and restore a bunch more kalo patches

Ku has been in court before, and has testified in local lawsuits regarding water resources. If the lawsuit ever reaches that stage, Ku is enthusiastic about the idea of taking a stand on climate change. It would have a tremendous impact on my island and our community, as well as the entire state. It would be incredible .”

Read More