A flood-affected region is seen in Pakistan. Photo courtesy of AFP.
Richard Ingham of the AFP wrote a headline-grabbing article outlining the growing potential of climate-change litigation, i.e. lawsuits against polluting nations and corporations. In his article, he noted that this is still very much a new legal area, with many gray areas and most significantly, a "causation" problem. Basic questions would include: Who is behind it, and to what extend? What criteria should be included in the creation of a globally-accepted measuring system to calculate and verify damages? How can we take into consideration the fact that often carbon dioxide emissions are results of actions that would be labeled as "necessary evils" for welfare production?
In addition, as exciting a prospect this might be in advancing towards positive climate change (be in through creating awareness or providing compensation), it would be vital to note that law firms are still profit-driven organizations. Many of them are drawn to the potential profits that can be made from the eventual payouts, and in so doing, would be pretty much selective of clients.
Ironically, the ones most in need of legal intervention are also those who can least afford it. Indigenous people, especially those lagging far behind in economic development and suffering from politico-judicial injustice, are often the most desperate for some form of protection from big logging or mining corporations. Many third-world countries like Indonesia, for example, have numerous cases depicting the lack of social justice and democratic decision-making. Indigenous communities once bounded by religious and economic ties to the resources provided by their land are evicted by force without proper compensation.
However, these same third-world politicians and corporate leaders (that many have demonized too quickly) have also listed many benefits to the bigger population and national economy through this very claiming of resources. Jobs can be created, resources can be utilized efficiently, and potential monies can be further invested in noble causes such as education and public works.
What climate-change litigation can truly bring about is the legal appointment of spokesperson(s) for the indigenous people who need a representative voice that understands their situation and who is also familiar with local judicial proceedings. The lawyer must assist in the setting up of an agreement that involves the democratic decision-making of the indigenous community involved, but also ensure that the dilemmas of the politicians and corporate leaders are taken into consideration. A general example will include the recognition of land and resource ownership by the indigenous people, developmental benefits in exchange for resources according to pace of utilization, and rules that ensure that the resources are constantly being zoned off and/or replenished through efforts by the corporations involved.
There is indeed a place for climate-change litigation, but legal firms must not solely focus on the victims created as a result of mankind-related climate disasters but more importantly on the voiceless victims created by actions that further perpetuate the climate problem. However, as long as legal firms are driven by profit alone, climate-change litigation look set to be little more than lengthy debates between influential groups in first-world countries.
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