In Short : Dr. Friederike Otto emphasizes that companies contributing to pollution must consider the risk of climate litigation. This underscores the growing legal implications and accountability associated with environmental harm, urging businesses to factor in climate-related legal risks.
In Detail : ‘Major fossil fuel-producing and burning countries are not obliged to start cutting emissions immediately; but big polluters, both firms and countries, are being increasingly held to account’
“It’s the beginning of the end,” the U.N. Climate Change’s Chief, Simon Stiell, announced in the closing minutes of COP28 in Dubai, while admitting that it did not “fully turn the page on the fossil fuel era.”
The major fossil fuel-producing and burning countries are not obliged to start cutting emissions immediately. But big polluters, both firms and countries, are being increasingly held to account. This is being seen in two relatively new areas in a warming world. These are loss and damages due to the effect of climate change (the climate conference saw a breakthrough with the operationalisation of a Loss and Damages fund to which $792 million have been pledged and more expected) and climate litigation.
Connecting financial losses to climate change is a new science of attribution of weather events and one of its pioneers, Friederike Otto, was at COP28. In an interview to this writer, Dr. Otto said, “If we hadn’t done attribution at the scale we are doing and so many studies, we would probably not have Loss and Damage as set prominently now in the negotiations, because when we started doing this work, it was still that people said, oh, you can’t attribute individual weather events to climate change. We have shown again and again and again that you can. And, I think that that has played an important role to make Loss and Damages more prominent.”
Dr. Otto’s areas of specialisation and work are rapid weather attribution, which means to identify how much extreme weather was made more likely because of global warming; currently, the global average temperature is about 1.2° celsius warmer than the pre-industrial times. For instance, Dr. Otto’s group, World Weather Attribution (WWA), found April 2023’s heatwave in India and Bangladesh to be 30 times more likely due to human-induced climate change. Dr. Otto has been recognised for her work in 2021 by the Time magazine’s list of 100 of the world’s most influential individuals and by the journal Nature as one of the top 10 people who made a difference to science the same year.
Little contributions
Calling for a task force to pin accountability, Dr. Otto points out that major polluters and producers of fossil fuels have given little to the new Loss and Damages fund. Germany and hosts, UAE pledged $100 million each and the biggest historical polluter, the United States, just $17.5 million.
“If we had a task force on impacts, then, the methods that we have developed in attribution would obviously play a big role in how we could measure this. Because, at the moment, we have the situation that we have a loss and damage fund, and then a country like the UAE or Germany puts $100 million in and celebrates themselves [on] how generous and amazing they are. But, when you would actually look at the comprehensive assessment of the losses that we have and that are [there] because of climate change, you would see that that is way too little money to get anywhere near what climate change is actually costing. So, just as an example, the Pakistan floods last year alone cost $40 billion, and that was one event.”
An analysis of over 100 climate-change lawsuits found that a filing or unfavourable court decisi n reduced a firm’s value by 0.41%. Lawsuits have been filed against big polluters, so-called ‘carbon majors,’ including Exxon, Shell and Volkswagen. The report says litigation is on the rise and is here to stay.
One of the most high-profile cases of climate litigation is of a Peruvian farmer, Saul Luciano Lliuya, who, since 2015, has been fighting German energy major, RWE, backed by a German NGO in a German court over 10,000 kms away. Mr. Lliuya’s case is that global warming is causing the snow in the Andes range to melt faster, expanding a glacial lake which, in turn, could flood his farm and village beneath that. The local authorities want to build a dam and Mr. Lliuya wants RWE to pay its share 0.47% which, research has shown, is the energy firm’s contribution to global industrial emission of greenhouse gases between 1854 and 2010. A court admitted his case to trial and two judges even travelled to Peru for a study. The payment he’s seeking is only about $20,000 but it could open the floodgates for such claims against heavily-polluting businesses.
Dr. Otto says if the Peruvian farmer wins, then it could be a turning point for businesses to realise the litigation risk. “I don’t think we see yet that they perceive litigation risk as a real risk. I hope if this RWE case will be successful, that would be a big step.”
Ideally, the pioneering climate attribution scientist believes that businesses should use weather attribution science “in the best possible way. They could realise, oh, we need to change our business model and stop trying to dig out every last bit of coal and oil and make money.”
Dr. Otto’s team at WWA for rapid attribution has five full-time members and they can investigate just about two extreme weather events a month. They use statistical and climate modelling to do this, sourcing computational power from partners. She says there’s a need to scale up this science across the world and governments can mandate their meteorological services or other institutions to do so, rather than by a “handful of random scientists.”
“That would be important for it to be really useful to inform how much funding is needed for loss and damage. And, I think, legal assistance is something that we can already do because that is much more there is really much more about transparency.”
At a side event at COP28, Dr. Otto spoke along with fellow scientists on the need to simplify the science for a larger audience, and explain how climate change affects an individual and her family. While the panel of experts said the demand for them to work with lawyers was increasing, they called for breaking down silos between courts, scientists, policy-makers and communities among others.
But, it’s not about the technicalities, Dr. Otto says, and the focus has to change even at COPs. After all, the 2015 Paris Agreement, she points out, is about human rights, not to save the polar bear
“The way we talk here at the COP in the negotiations, it’s always on a very technical level, it’s not the ‘why’ we are actually doing this. The Paris Agreement is a human-rights treaty, and by not adhering to the Paris Agreement, we are violating very fundamental human rights of many, many, many millions of people in a fundamental way.”