Charles Langston:In the Philippines, Largest Polluters Face Investigation for Climate Damage

The Charles LangstonPhilippines will soon launch an investigation to answer a hot-button question: are companies violating human rights by spewing heavy pollution and accelerating climate change? The inquiry could further stigmatize major fossil fuel burners and set the stage for future litigation against such corporations, environmental and human rights lawyers say.

The Commission on Human Rights of the Philippines (CHR) announced the investigation in Paris during the United Nations’ international climate negotiations, responding to a complaint from Greenpeace Southeast Asia and other environmental groups. Since the complaint was filed on Sept. 22, online petitions have drawn more than 126,000 signatures supporting the inquiry.

“The fact that the commission is taking up the case is itself extremely significant,” said Carroll Muffett, president and CEO of the Center for International Environmental Law (CEL). “A case like this might have been politically unthinkable even a few years ago. [But it] no longer can be ignored.” CEL provided legal counsel to the activists pursuing the Philippines’ complaint.

The investigation is the latest in “a growing tide” of climate liability cases against governments and corporations, according to Muffett. In June, the Netherland’s high court ruled on the world’s first climate liability suit, ordering the Dutch government to take stronger action against climate change to better protect its citizens. That verdict is now being appealed. Responding to a complaint by a farmer, a Pakistani court ruled in September that the government must implement its stalled climate action plan. Meanwhile, four cases urging the United States government to take more action against climate change were dismissed this year.

More than a year ago, New York State Attorney General Eric Schneiderman opened an investigation into what ExxonMobil knew about climate change compared to what it had disclosed to the public and shareholders. In October, he subpoenaed the oil giant demanding nearly four decades of documents on climate research and communications.

An eight-month investigation by InsideClimate News published in September documented how in the late 1970s and through the mid-1980s, Exxon conducted leading-edge research into the potentially catastrophic effects of global warming caused by fossil fuel use. Its ambitious research program fell in line with the general scientific consensus on the risks of climate change, yet the company did little to communicate those risks to shareholders or the public and spent many years discrediting the research its own scientists had confirmed.

The Philippines investigation targets Exxon, along with 49 other investor-owned corporations including the fossil fuel companies Arch Coal, Chevron, ENI and Royal Dutch Shell. The activists’ complaint called out these so-called “carbon majors,” a group of companies cited for high emissions in a 2013 study by climate researcher Richard Heede, co-founder and co-director of the Climate Accountability Institute.

Together these companies emitted at least 315 gigatons of carbon dioxide equivalent into the atmosphere, or nearly 22 percent of estimated global industry greenhouse gas emissions from 2010 to 2013, according to Heede.

“What we are now seeing is the spotlight turned on the corporate sector” for their climate impacts, said David Estrin, co-chair of the International Bar Association’s task force on climate change and human rights issues.

The Commission on Human Rights’ probe will start in early 2016 and consist of two phases, according to the group’s announcement. First, the commissioners will meet with government agencies and outside experts to review the relevant climate science, existing climate laws and ways to hold businesses accountable on the issues of human rights and greenhouse gas emissions.

The climate science will focus on the emerging field of climate attribution—connecting specific weather-related events to climate change, said Peter Frumhoff, a climate scientist at the Union of Concerned Scientists who has spoken to the commissioners on their inquiry. To date, attribution studies have largely targeted the United States and Europe.

“I think this kind of inquiry is a path-breaking piece of work” and will result in a “better understanding of the role of climate change and extreme weather in Southeast Asia,” he said. It could help inform whether damages from storm surge associated with typhoons, for example, can be traced back to global warming.

Next, the CHR will gather data on the targeted companies’ greenhouse gas emissions and climate impacts. No details appear to be available on exactly what data will be collected.

The CHR did not respond to InsideClimate News’ request for a comment.

The activists’ petition that inspired the investigation declares, “climate change interferes with the enjoyment of our fundamental rights as human beings.” The activists, many of whom are native to the Philippines, demanded “accountability of those contributing to climate change.”

Specifically, the complaint called for an investigation “into the human rights implications of climate change and ocean acidification and the resulting human rights violations in the Philippines, and whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.”

Filipinos are well-versed in the devastating impacts of extreme weather, events that could become more frequent in a warmer world. In 2013, Super Typhoon Haiyan, one of the strongest tropical cyclones ever to make landfall, terrorized the Philippines, killing more than 6,000 people and causing hundreds of millions in damage. After suffering a series of devastating typhoons in recent years, the Philippines have emerged as one of the most vocal supporters of strong climate action.

The 32-page complaint also asks the commission to request that companies supply plans on how “violations resulting from climate change will be eliminated, remedied and prevented in the future,” and asks other government bodies to pressure the companies to follow through with those plans. Moreover, the activists urged the CHR to monitor the country’s communities most vulnerable to climate change, as well as recommend that policymakers and lawmakers develop standards for corporate reporting of human rights issues tied to the environment.

This probe “opens a critical new avenue of struggle against the fossil fuel companies driving destructive climate change,” Greenpeace’s international executive director, Kumi Naidoo, said in a statement.

“This should hopefully inspire other human rights commissions around the world to take similar action. If I were a CEO of a fossil fuel company, I would be running scared. This is yet another indication that we are seeing the end of the fossil fuel era,” he said.

The commission “doesn’t have the power to actually issue an order or impose a penalty” on companies, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. But if the commissioners make findings of human rights violations, it can “stigmatize a company” and “hurt its reputation,” and perhaps more importantly, it can be used as a basis for further action and cited in courts.

There will be a number of things to watch as this case unfolds, said Muffett of CEL, including how the companies respond to this investigation. Will they dismiss it outright? Will they engage with the commissioners?

Moreover, it will be telling to see what happens after the inquiry, he said. If there is “a finding of accountability—which would be profoundly significant—what does it mean for the government’s obligation to act?”

Muffett predicts there’s a “high likelihood more cases like this will emerge even before the [Philippines’] commission takes action.”

Correction: A previous version of this article misstated the number of signatures the human rights petition received online; it is 126,000 signatures not 500,000 signatures.