Liability Roadmap
Introduction
Polluting industries like the fossil fuel, mining, and agribusiness industries have fuelled the climate crisis. They’ve reaped vast profits, all the while knowingly causing harm—and burdening communities around the world with the many costs of climate disaster.
Holding polluting industries liable can release the urgently needed funding to address the climate emergency and compel polluting corporations to end their abuses.
Decision-makers and government officials at all levels—from the local to the international level—have a critical role to play in advancing liability. The bold, visionary steps laid out in this tool can advance justice, while accessing vast resources to finance both climate action and systemic change. People’s lives and the planet depend on it.
Now is the time to hold polluting industries liable
For years, people and organizations around the world have called to make polluting industries pay for the damage they have knowingly caused and intend to continue to cause. In 2019, hundreds of organizations and hundreds of thousands of people united to say, with one voice: it’s time to Make Big Polluters Pay. This global call urges world decision-makers to act to hold liable the industries and corporations that have fuelled and continue to worsen the climate emergency.
Since, the crisis has only deepened. We are breaching environmental tipping point after environmental tipping point. Science now shows that the Arctic sea ice could be completely gone within the decade, which would release the equivalent of 20 years of human emissions into the atmosphere. It also shows that we may already be facing 10 – 20 meters of sea level rise. The World Economic Forum’s latest assessment shows that the climate action failure civil society has warned of is now a greater threat—both in likelihood and impact—than weapons of mass destruction.
Climate inaction is placing entire nations, and billions of lives and livelihoods, directly at risk. Many of these lives are simultaneously threatened by the global COVID-19 pandemic and brutal, systemic racism: Deeply entrenched inequities, further perpetuated by corporate greed, have placed Global South communities, Black and Indigenous people, people of colour, women, and low-income people squarely on the front lines of both climate change and COVID-19—as well as the social and economic crises unfolding around them.
While communities around the world are fighting for their lives, polluting industries like the fossil fuel industry and agribusiness are preparing to ramp up expansion for their own greed. For example, the recent Production Gap Report indicates that the fossil fuel industry intends to produce more than twice as much fossil fuel by 2030 than is consistent with the Paris Agreement’s commitment to keeping global temperature rise to as close to 1.5 degrees Celsius as possible.
At the same time, these polluting corporations depend on a system built on racism and oppression, and they manipulate this system to their benefit, treating human lives—especially the lives of people of colour—and the natural world as expendable. They are attempting to profit from the COVID-19 pandemic. They are demanding government bailouts. They are rolling out PR schemes that paint them as saviours in a crisis they were central to orchestrating. And they are attempting to push forward unreliable and risky climate techno-fixes that won’t work and will exacerbate existing inequities.
Moreover, these very industries are in large part responsible for the multi-faceted crises we’re facing. They knew for decades their activities were fuelling climate change—but funded denial and junk science to delay action. They’ve simultaneously driven the extinction and biodiversity loss crises that drive animals out of their habitat and enable pathogens to spread around the world. They have eroded the power of governments to effectively address global disasters like the climate crisis and COVID-19—disasters that are increasingly devastating and expensive. These polluters are the ones who should be paying, not being bailed out.
The need is tremendous. But so are the potential resources that become available when polluting corporations are held to account. For example, in 2019 alone, Exxon Mobil, Royal Dutch Shell, Chevron, BP, and Total S.A. had revenues totalling approximately US$1.35 trillion. Compare this to the 2019 combined GDP of five of the developing countries (Mozambique, Ethiopia, Philippines, Fiji, and Bangladesh) hardest hit by climate change: approximately US $786 billion.
Holding polluting industries—including the fossil fuel, mining, and agribusiness industries—liable can, among other things:
◦ Release urgently needed funding to address the climate emergency by requiring these actors to pay (not only financially) for the past, present, and future damage they cause.
◦ Revoke corporations’ license to continue “business as usual.”
◦ Contribute to bringing about the systemic change needed to ensure a world where people and the planet thrive and where global average temperature rise is kept below 1.5 degrees Celsius.
◦ Help end the status quo that has sacrificed frontline countries and communities in the name of polluters’ profits.
◦ Strengthen international climate action alongside equity, honour reparations and historical responsibility.
◦ Strengthen protection of human rights and Mother Earth.
Liability is not a ground-breaking idea. It is a concept that has been practiced by communities around the world for centuries, through restitution and reparations, through legal means, legislative means, cultural means, and other means. When done comprehensively, holistically, and equitably, it also has the potential to proactively end (not only respond to) practices that are abusive to people and nature.
The liability roadmap presented here draws from the vast experiences of communities and experts around the world, particularly those across the Global South and the frontlines of the climate emergency. It presents decision-makers at all levels of government with a menu of measures and tools they can use to finance the systems change we urgently need, to access publicly controlled solutions, and to address the climate crisis.
Of course, enacting the policies and measures laid out here is simply the first step: There will be much work to do to ensure these measures are fully implemented and move us toward the transformative change the world needs.
Amidst a global pandemic, an international recession, and a public health crisis, the broken systems that have fueled climate change and caused centuries of great injustice are crumbling. We are now faced with the choice to lay the foundation for a better, fairer world—one where people and nature thrive—or to fall back on the systems of oppression, racism, and colonialism that have only served to entrench the power of an elite few. That more beautiful, fairer world becomes possible in part through at last holding accountable and liable the industries that have knowingly driven countries, communities, and the planet to the edge of collapse.
Science shows that the actions we take now will shape the course of action for the next ten years, and in turn determine whether the we are set to experience environmental and social collapse. Decision-makers around the world should lead by example and embrace the unprecedented moment we are in to shift power into the hands of people and communities, and to work together to build new, more equitable, people-centered systems, now.
What is liability?
Liability refers to using tools (legal, legislative, policy, cultural, and otherwise) to hold corporations and industries responsible for their roles in driving the climate crisis and undermining action to address it. When fully implemented in accordance with the principles laid out here , it should advance justice, help communities on the frontlines of the climate emergency access the resources they need and are owed, and deliver reparations owed to communities on the frontlines of climate change.
The industries that have fueled the climate crisis, funded climate denial, and blocked just climate progress for decades must pay for the damage they have caused and will cause. In other words, liability embraces the logical rationale of “if you break it, you buy it”, or “if you burn my house down, you should be the one paying for it.” Corporations are profiting from burning our common home. Holding these industries liable means ensuring that they are held responsible—criminally, civilly, financially, and otherwise—and that they are made to end the practices that have driven this crisis in the first place.
As this liability roadmap illustrates, meaningful actions that can help hold polluting industries liable are diverse and can be implemented by a variety of government, political, civil society, and cultural decision-makers locally to globally. Some examples of these decision-makers include but are certainly not limited to: academics, attorneys general, diplomats, environmental defenders, governors, heads of state, indigenous or tribal leaders, lawyers, mayors, members of Congress/Parliament, ombudspersons, policymakers, public advisors, representatives from frontline communities, U.N. Special Rapporteurs, representatives to regional human rights institutions, and women or youth coalitions.
The Liability Roadmap
The roadmap contains guidance for decision-makers at four levels of governance: international, national, local, and multi-level. Under each, you’ll find a variety of approaches that you can harness depending upon the type of decision-making authority you hold. Explore each level below to see how you can take action to hold polluting industries liable.
Implementing the measures of the liability roadmap
Decision-makers at all levels should keep the following notes in mind when implementing the measures laid out in this tool:
Enacting these policies and measures is simply the first step to holding polluting industries liable: There will be much work for government officials, decision-makers, and civil society alike to do to ensure these measures are fully implemented and move us toward the transformative change the world needs.
Liability should be applied to all industries and corporations that make business decisions that contribute to climate change and its impacts, or that cause harm to people and nature. In addition to the fossil fuel industry, these industries include but are not limited to agribusiness, forestry, and mining.
Many of these measures could equally apply to state-owned corporations. Because the national contexts and unique needs vary from country to country, it is worth considering where to apply and how to adapt the principles and measures listed in the Liability Roadmap to address state-owned polluting corporations. Factors to consider when doing so could include but are not limited to the degree of democratic control over the entity, role and use of funding from oil/gas revenues, and responsiveness of the entity to transition to regenerative, renewable energy sources.
Measures implemented at the national level should support and reinforce, rather than contradict, measures implemented at the sub-national and local, and vice versa.
Local
Stop fossil fuel expansion
Pass short and longer-term local regulations that curb the ability of fossil fuel corporations to extract, transport, or promote their product in local jurisdictions.
What does this look like?
Cities, towns, and communities take proactive action to Stand Against Fossil Fuel Expansion by becoming SAFE cities that pass local laws to prohibit fossil fuel projects.
Implement local government resolutions that commit to immediately ending fossil fuel expansion in your city, town or community.
Pass a moratorium that immediately prohibits the development of any new fossil fuel infrastructure, beginning with wealthy and diversified countries that are best positioned to do so.
Just as a community in Northern Washington state, U.S. did.
Follow through with legislation that makes these restrictions permanent, which also has the additional effect of protecting against environmental hazards like oil spills.
Prohibit the transport or storage of fossil fuels through or in your jurisdiction.
As South Portland, Maine did in 2014, when tar sands were no longer allowed to pass through the city.
Or as Portland, Oregon did in 2016, when it became the first major municipality in the U.S. to prohibit the bulk storage of fossil fuels, essentially ceasing oil trains from passing through the jurisdiction.
Challenge Paris Agreement violations
Hold specific polluting corporations, or groups of polluting corporations, to account for their climate inaction by suing them for failing to comply with the Paris Agreement commitments.
What does this look like?
Sue countries, polluting corporations or related actors for violating the right to a safe and clean environment, including by failing to have adequate, ambitious, and just climate action plans that are fully aligned with the commitments of the Paris Agreement to keep global temperature rise to 1.5 degrees Celsius.
This argument led to the successful challenge in the U.K., where a new runway at Heathrow International Airport was ruled illegal since it was not in line with the U.K.’s Paris Agreement commitments.
Similarly, incompatibility between Netherland’s climate action plans and the Paris Agreement commitments has led civil society organizations and over 17,000 citizens to sue Royal Dutch Shell for failing to align its business practices with the action necessary.
Increase access to justice for frontline communities
Implement a variety of measures to ensure communities on the front lines of the climate crisis have access to legal mechanisms for advancing climate justice.
What does this look like?
Climate cases in the Global South generally only indirectly implicate climate change, among other reasons, because of the limited access to justice1. These challenges could be in part addressed by advancing subnational/local strategies that:
Develop or strengthen inclusive processes that allow communities to direct access to legal actions. Tools that can help achieve this include:
Strengthen or advocate for effective partnerships amongst governments and between governments and civil society1, to:
Organize sources of data: Case management from legal aid providers, both government and civil society, can be beneficial to understand trends in justice needs, who is lacking access to justice, geographic spread of justice services, what assistance communities need to resolve disputes, the experience of marginalized groups, and the utility and impact of legal aid and paralegal services1.Establish a financial fund that can support legal assistance needs.
Establish programs with law faculties that can support the legal cases.
Strengthen opportunities for cross sub-national learning on effective mechanisms that allow communities to access legal actions directly, allowing actors to:
Learn from and share best practices in order to strengthen case management and data collection.
Strengthen sub-national South-South collaboration, in particular by developing training programs that better enable local communities to access and use legal systems.
1 https://www.cambridge.org/core/journals/american-journal-of-international-law/ajil-unbound-by-symposium/jacqueline-peel-and-jolene-lin-transnational-climate-litigation-the-contribution-of-the-global-south
Raise public awareness about climate denial
Through education, media engagement, and resolutions, build political will for polluting industry liability and denormalise corporate impunity.
What does this look like?
Raise awareness, inform, and educate decision-makers and the public regarding corporations’ role in exacerbating climate change, the need to protect climate policies from vested corporate interests, as well as the strategies and tactics used by corporations to interfere with the setting and implementation of climate action and liability measures at every level of governance.
Increase awareness through public materials, media, and local resolutions and/or investigations that expose the fossil fuel industry’s (and other polluting industries’) historic and ongoing practice of using individuals, front groups and trade organizations to act, openly or covertly, on their behalf or to take action to further industry interests
Challenge attempts to pre-empt liability locally
Play a watchdog role, exposing and challenge insidious attempts at the local level by polluting corporations to seize opportunities to avoid liability for harms done.
What does this look like?
Coordinate with government officials and decision-makers at all levels of governance to ensure that cities and communities have the ability to pursue liability against polluting industries without the possibility of pre-emption at the regional, country, and/or international level.
Identify and challenge attempts by the industry to preempt local liability claims for past, current, or future harms through legislation, voluntary agreements, litigation, or other means.
National
Establish primacy of human rights
Formalize through national law the need for human rights to be upheld by states and corporations (as well as their subsidiaries and representatives) with clear guidance on what is considered a violation of human rights and what the appropriate punishments are for violations.
What does this look like?
Establish the primacy of human rights, and enshrine:
a) the primal obligation of a state and its representatives to protect these rights not subject to appropriate national legislation
b) a corporation’s legal obligation to respect human rights as well as the common good, not subject to any law of the originating country providing immunity to transnational corporations operating in other countries.
c) mechanisms for individuals or entities to hold polluters liable for violating these rights.
Clearly define in law what is considered a violation of these rights, and the civil, criminal, financial, administrative or any other type of action that can be taken when violations occur.
In creating guidelines for how to define a violation of human rights in national law, governments should take into account:
The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law adopted in 2005 by the United Nations General Assembly.1 Some important concepts include:
The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law.
A victims’ right to remedies, including:
Access to justice.
Reparation for harm suffered.
Access to relevant information concerning violations and reparation mechanisms.
The updated set of principles for the protection and promotion of human rights through action to combat impunity (impunity principles) endorsed by the United Nations Commission on Human Rights (succeeded by the Human Rights Council in 2006-E/CN.4/2005/102/Add.1)2. Some important concepts include:
General obligations of States to take effective action to combat impunity.
The inalienable right to the truth.
The establishment and role of truth commissions.
Jurisdiction of international and internationalized criminal tribunals.
Measures for strengthening the effectiveness of international legal principles concerning universal and international jurisdiction.
Restrictions on prescription.
Rights and duties arising out of the obligation to make reparation.
Reparation procedures.
Publicizing reparation procedures.
Scope of the right to reparation.
Expand this legal obligation of corporations to extend to subsidiaries of transnational corporations.
Click here for a case study on France’s ‘duty of vigilance’ law, passed in 2017, which provides a ground-breaking precedent for this that, though imperfect in large part due to corporate lobbying, should continue to be built upon.
Expand the legal obligation of corporations to include the CEOs, managers, and those in positions of power within corporations.
Adopt legislation that enshrines climate commitments made at institutions such as the United Nations Framework Convention on Climate Change into law so that corporations can be held accountable to respect them.
Stop corporate pre-emption
Implement safeguards and regulations through national legislation that stop polluting corporations from attempting to pre-empt being brought to justice or to abuse processes meant to uphold justice.
What does this look like?
Adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription and amnesty, among others that fosters or contributes to impunity.
Prescription – either of prosecution or penalty - in judicial, administrative, and other cases should not occur for periods that render no effective remedy available.
Prescription should not apply to crimes under international law that are by their nature imprescriptible. When it does or must apply, prescription should not be effective against civil or administrative actions brought by victims seeking reparation for their injuries.
Stop attempts by polluting corporations to avoid justice and fair trials, such as:
Appealing to move legal claims to parts of the judicial system that favour a corporation.
Counter suing.
Incorporate pre-emption clauses for international litigation.
Through legislation or litigation, ensure that the corporation being held liable is not able to pre-empt further or future liability actions from governments and/or victims at the sub-national level.
Adopt provisions that allow for the implementation of strict liability regimens, especially for environmental litigation cases.
Adopt constitutional reforms that allow the inclusion of nature rights and environmental rights.
Reverse burden of proof principle
Increase access to justice against corporate impunity by ensuring that the burden of proving whether harm or abuses were committed by transnational corporations or certain actors should fall to the accused, not to the past, present and future victims of such abuse.
What does this look like?
Adopt provisions to reverse the burden of proof principle to help ensure victims are better positioned within justice processes that displace national law.
Adopt provisions to place the burden of proof on polluting corporations, not the people holding them accountable.
Establish primacy of the rights of nature
It all begins with an idea. Maybe you want to launch a business. Maybe you want to turn a hobby into something more. Or maybe you have a creative project to share with the world. Whatever it is, the way you tell your story online can make all the difference.
What does this look like?
Formally recognize the rights of nature, enshrining its right to be protected and conserved, and concretize the primacy of the rights of nature and human rights above all else.
Countries where similar action has been taken include Ecuador, Bolivia, India, and New Zealand, though it is essential to note that in all cases, meaningful implementation is yet to be achieved. Click here to read more about the measures in each of these countries.
Climate damages tax on polluters
Implement national taxes on corporations on fossil fuel extraction to incentivize a shift away from fossil fuels and to help justly and directly finance this shift. Such a tax must not be placed upon people but rather to serve the people—a tax on polluting corporations and the wealthy elites that benefit from them.
What does this look like?
Establish a national climate damages tax for every unit that polluting industries pollute or extract.
The payment of the tax should not be used to permit or legitimize more pollution to take place.
Corporations must be legally barred from passing on the cost of the tax to consumers.
A climate damages tax should incentivize a reorientation by the power-producing industry away from fossil fuels by reducing the profits they derive from that activity. This also which makes them a less attractive investment option.
The tax should be seen in relation to a host of complementary measures including the removal of fossil fuel subsidies to make polluting industry business increasingly non-viable.
The design of the tax should ensure that it escalates annually making polluting industries’ fuel business increasingly unprofitable year on year.
It must be a tax on extraction, with the cost borne directly by the corporations, not the country where the extraction is taking place. By targeting the very beginning of the carbon cycle, the number of tax-paying entities is kept relatively low.
Implementation of the tax must include reporting transparently on what is being paid, making it more difficult for polluters to lobby politicians for preferential rules, and prices.
Finance received through the collection of such a tax should directly contribute to the international financing facility for Loss and Damage and go directly to communities to address climate impacts.
End subsidies, “bailouts” and liability waivers for polluting industries
End a variety of mechanisms that artificially prop up polluting industries and insulate them from addressing the damage they’ve caused, including but not limited to subsidies, bailouts, and liability waivers.
What does this look like?
Reject outright any policies or proposals that seek to waive the liability or culpability of corporations, whether it be past, present or future. Guard against these clauses being embedded in otherwise positive climate action legislation.
Reject any and all “bailouts” that incentivize polluting industries when they must instead be phased out. Rather, fund the relief and recovery people and nature need by advancing liability measures in this roadmap that require corporations to pay for the damage they’ve knowingly caused and the broken systems they have intentionally helped create.
Stimulus and relief packages such as those responding to the COVID-19 pandemic should be harnessed as opportunities to advance liability measures at the national level.
End government subsidies to polluting industries and corporations, with no incremental phase-out period.
International
Advancing liability locally to globally relies on strengthening international legal instruments and institutions that already exist, drawing from best practices and precedents, and tapping into bold and visionary aspiration for what is needed to transform systems and advance justice.
Finance for Loss and Damage
Establish mechanisms within United Nations institutions such as the United Nations Framework Convention on Climate Change (UNFCCC) as well as multilateral or bilateral funds such as the Green Climate Fund that deliver financial support and compensation to frontline communities for climate impacts (loss and damage).
What does this look like?
Establish a Loss and Damage financing facility within or across UN institutions, which could include the United Nations Framework Convention on Climate Change (UNFCCC). This facility should be financed by wealthy countries and support developing countries experiencing climate disasters.
The guidelines for its establishment should include:
1) requirements for wealthy/Northern countries to contribute to this facility annually in line with their fair share of historical emissions.
Allocating an adequate percentage of finance governments collect through liability measures taken nationally- including litigation,[link to investigate and sue section] fines, climate damages taxes [link to climate damages measure under national] and other measures detailed in this roadmap—towards a nation’s contribution to the Loss and Damage financing facility.
2) requirements that funding (whether from the financing facility directly or via national funds) be distributed to and in the control of communities enduring the greatest impacts of climate change.
The governance of this facility must:
Include strong requirements to protect against the risk for conflicts of interests to unduly influence how the finance is distributed.
Centre the representation and decision-making of communities in the Global South, including women, indigenous peoples, youth, and local communities.
Allocate a proportion of multilateral and bilateral funds that finance climate actions to go towards mandatory Loss and Damage funding.
Examples of relevant funds include the Green Climate Fund (GCF), Climate Investment Funds (CIF), Global Environment Facility (GEF), and the Adaptation Fund.
Liability at the International Criminal Court
Advance laws beginning at the International Criminal Court to protect the earth by criminalizing ecocide as the fifth “Crime Against Peace”, allowing for legal claims against corporations for breaching these laws and committing ecocide.
What does this look like?
Amend the Rome Statute of the International Criminal Court to formally recognize loss, damage, or destruction to ecosystems or the natural world ( or ‘ecocide’) as a crime under the International Criminal Court (ICC), as the island nations of Vanuatu and Maldives have called for, and as previously proposed in 2010 to the International Law Commission (ILC).
The Rome Statute is one of the most powerful documents in the world, assigning “the most serious crimes of concern to the international community as a whole” over and above all other laws. Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known collectively as Crimes Against Peace. They are currently:
1. The Crime of Genocide
2. Crimes Against Humanity
3. War Crimes
4. The Crime of Aggression
The inclusion of Ecocide as a crime in international law prohibits mass damage and destruction of the Earth and creates a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to Ecocide. The duty of care applies to prevent, prohibit and pre-empt both human-caused Ecocide and natural catastrophes. Where Ecocide occurs as a crime, remedy can be sought through national courts and the International Criminal Court (ICC) or a similar body.
To create an international crime of Ecocide, it only takes one Member State of the Rome Statute to call for an amendment. This triggers a process: once 83 States ratify the amendment to include Ecocide as a crime, it becomes binding. Member States are countries who have signed and ratified the Rome Statute; there are currently 123 State Parties.
Ensure that the definition of ecocide addresses not only environmental and climate action crimes, but crimes committed against environmental defenders.
Formally recognize transnational corporations’ role in driving ecocide, and try them at the International Criminal Court when they are accused of violating these laws.
Formalize an international process at the International Criminal Court for Global South countries and communities where transnational corporations and their subsidiaries are operating to seek compensation or reparations for the crimes these corporations have committed.
Through the United Nations Framework Convention on Climate Change and other U.N. institutions, register a formal call to the ICC to recognize ecocide as a crime.
Binding treaty on corporate abuse and human rights
Establish a legally binding instrument, currently under development at the United Nations Human Rights Council, to regulate the activities of transnational corporations and other businesses via international human rights law.
What does this look like?
Governments are currently negotiating the text of a draft treaty on business and human rights. This instrument should:
Formalize the primacy of human rights and the rights of nature (see below) over and above international trade and commerce and any associated agreements or treaties.
Require polluting corporations to remediate and restore the environments they have polluted, damaged, or adversely impacted.
Establish the direct obligation for transnational corporations—as well as their subsidiaries—to respect human rights and socio-economic rights.
Establish a state’s obligation to protect human rights and the rights of the nature.
Adopt guidelines that prohibit international economic and international financial institutions from giving money toward or participating in activities that directly or indirectly enable corporations to continue to act with impunity.
Prohibit international financial institutions from funding the fossil fuel industry and other polluting industries.
Prohibit subsidies from going to the fossil fuel industry.
Adopt measures to withdraw consent to Investor-State Dispute Settlement (ISDS), to limit immediate exposure to investor lawsuits.
Suspend all trade and investment treaty negotiations.
Expand these measures to default on the payment of outstanding debts as a result of ISDS awards.
Revoke the immunity of international financial institutions such as the World Bank’s International Finance Corporation (IFC), following the lead of the U.S. Supreme Court’s ground-breaking decision that such institutions can be held liable for environmental damages, following the claim brought by Indian fishermen.
To understand why these measures are necessary to be able to meaningfully advance liability and to counteract attempts by corporations to avoid liability, read this case study on Chevron and Texaco in Ecuador.
Several jurisdictions have developed versions of regimes that enshrine the rights of nature, including Ecuador, Bolivia, New Zealand, India.1 Not all of these regimes take nature as a whole to be a juridical person; in some cases, parts of nature—for example, a river or a species—are granted personhood or are otherwise equipped to litigate their own rights. See here for more information on the measures advanced in these countries.
Fossil fuel non-proliferation
Establish international mechanisms such as a fossil fuel non-proliferation treaty, via new or existing regimes, to end the proliferation and use of fossil fuels, hold the industry liable for its abuses, and use liability to help fund a just transition centred on real climate solutions.
What does this look like?
There are a variety of possible avenues for establishing international mechanisms to stop fossil fuel non-proliferation. Regardless of the forum and process, such mechanisms should:
Base these efforts on clear equity principles, and new forms of international cooperation, building on the experience of other international regimes such as the nuclear non-proliferation regime.
Use funds garnered through liability measures to help finance such a transition.
End all new exploration and production of coal, oil and gas, effectively immediately.
Phase out existing stockpiles and production of fossil fuels in line with keeping global temperature rise to 1.5 degrees Celsius, and in line with the principles of a just transition for every worker, community, and country.
Draw from research that demonstrates that phasing out fossil fuel supply should be prioritized in wealthy, diversified economies that are in the best position to lead in large-scale transformative action right now with the least social cost. These include countries like Canada, the U.K., U.S., and Norway.
People’s monitoring body for polluting industry activity
Create a democratically controlled, independent formal monitoring body that tracks, documents, and publicizes the activities of polluting corporations.
What does this look like?
While there are a variety of initiatives that monitor and attribute the greenhouse gas emissions that can be directly attributed to specific corporations at source, establish a body to focus specifically on closely monitoring:
Indirect emissions that occur throughout the value chain of a corporation (sometimes referred to as Scope 3 emissions).
Identifying actions, inactions, and business decisions of corporations that contribute to or have the consequence of violating environmental and human rights
Attempts by polluting industries and corporations to advance climate change denial, deception, greenwashing, and interference with policymaking on all levels of governance, and track and trace the finances spent toward these activities
This monitoring body should be housed independently of multilateral or bilateral institutions (i.e. a monitoring body of the people), and should be comprised of independent experts and representatives of frontline communities.
Monitoring activities should include unannounced and periodic field audits to be able to more accurate identify and access true environmental and social impact of polluting corporations’ practices.
Independent international expert committee on liability
Establish a democratically controlled, independent international liability expert committee to develop guidelines that support the drafting and implementation of binding national, sub-national, and local legislation that advances liability mechanisms.
What does this look like?
This expert group should be housed independently of multilateral or bilateral institutions), and should be comprised of independent experts, attorneys, and representatives of frontline communities.
Ensure representation by people on the front lines of the climate crisis who hold first-hand expertise on polluting industries’ abuses.
Ensure the work of this committee is bound by timelines that match the urgency of the need.
Protect the work of this committee from the undue influence and manipulation of polluting corporations and industries, or those directly or indirectly representing them.
Multi-level
Investigate and sue polluters and their enablers
Through a variety of legal mechanisms, people and entities at all levels should initiate investigations and lawsuits that hold polluting industries and their enablers liable for their multifaceted roles in the climate crisis.
What does this look like?
States/regions/communities/individuals formally launch investigations into polluting industry corporations and actors to firmly establish what they knew about climate change, and when, and what actions they did or didn’t take to address these findings.
States/regions/communities/ formally sue polluting industry corporations for compensation for the damage caused or projected to be caused as a result of their business practices, failure to comply with climate action commitments, or their deception and manipulation.
Compensation received should directly support frontline communities and those that endure the direct abuse of polluting corporations, or to funds that distribute to these communities, such as those detailed here
Register legal claims with national and international judicial bodies to expose and challenge the damage and abuses (environmental or personal) endured as a result of specific projects or business practices of transnational corporations.
These claims, often brought by local communities, have the ability to set ground-breaking precedents that spur lasting change. For example, a local community of Indian fishermen launched a lawsuit that wound up setting a powerful legal precedent for international financial institutions via the U.S. Supreme Court. Read more about this here
Judicial systems should guarantee specific prescribed time frames that should be a matter of months (not years), and that states or legal systems are required to adhere to when liability claims are registered.
File liability lawsuits against the institutional investors and financiers that enable corporations to pollute, destroy, abuse, and to use the corporate personhood or corporate veil to protect themselves.
In recent years, climate change litigation to advance liability claims has been increasing significantly across global jurisdictions. In the past, the majority of these lawsuits have been brought against governments. We’re now, however, witnessing an intensifying focus in launching climate liability cases against corporations based on several robust legal arguments and claims. This shift in focus on holding corporations legally liable for climate change has been facilitated by advancements in climate attribution science, knowledge from previous legal challenges and precedents, increased evidence regarding corporations’ climate change denial and deception efforts, increased public action to hold corporations accountable for climate change, as well as more effective collaboration between governments, attorneys, scientists and advocates across various jurisdictions and legal contexts.
Some of the most prominent types of legal claims that may be utilized to sue corporations directly, collectively, or individually include but are not limited to:
Public Nuisance
Nuisance is an act or omission that interferes with the rights of the community, or the public generally. Public nuisance claims focus on the argument that the extraction and promotion of fossil fuels contributes to climate change impacts, such as sea-level rise, and that these impacts create a public nuisance that interferes with rights of individuals or communities represented.
Negligence
Most polluting corporations had prior knowledge of climate change science and impacts, in some cases decades before it was commonly known by the public. Being able to demonstrate this prior knowledge forms the basis for negligence claims related to a corporation’s breach of their duty of care by not preventing foreseeable harm, and for negligent failure to warn of the likelihood of this harm.
Misleading advertising
These claims focus on corporate advertising that misled the public regarding the corporation’s climate change activities and impacts. Misleading advertising cases allege that promotional and advertising campaigns by polluting corporations violate national law or even the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises, which require accurate communications between businesses and people.
Consumer protection
These claims focus on breaches in consumer protection law, which typically forbids corporations from engaging in any unfair or deceptive trade practices. Consumer protection cases assert that polluting corporations engaged in deceptive marketing and promotion of their products by disseminating misleading information refuting the scientific knowledge generally accepted at that time, advancing junk science and developing public relations materials that prevented reasonable consumers from recognizing the risk that products like fossil fuels would cause serious climate change impacts.
Strict liability
Rather than alleging fault (such as negligence or tortious intent by the defendant), these cases claim strict liability for “design defects," - i.e. problems with a product’s design that render it dangerous to use. In these cases, fossil fuels, for example, are the product, with the defect in this case being the impact of the emissions and the known risks associated with them. For strict liability claims to be robust, the evidence needs to show the defendants engaged in business, sold the product to plaintiffs, the product was used as intended and it caused harm to the plaintiffs.
Human rights
Human rights-based climate litigation focuses on the role of corporations in driving climate change and the related impact on an individual’s human rights. These types of claims utilize human rights law to demonstrate corporate obligations to respect human rights, such as expressed in the UN Guiding Principles on Business and Human Rights or European Convention on Human Rights. These types of claims demonstrate that domestic human rights bodies may also provide leverage for further action on climate change.
Nature rights
Torts
Administrative actions
Health recovery costs & strength sanitary healthcare systems.
Violation of Free, Prior and Informed consent as granted under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs)
Violations under the Convention on the Elimination of All Forms of Discrimination against Women
Violations of customary and traditional rights of communities
Click here to read about the lessons learned through the precedent of advancing tobacco industry liability through the Master Settlement Agreement.
Compel the release of industry documents
Through measures laid out elsewhere in this roadmap, or via other means, decision-makers may obtain access to industry documents that evidence wrongdoing. Releasing this data is critical for people, civil society, the media, and officials alike to hold corporations accountable for their harms.
What does this look like?
Publicly disclose and release any data and documentation from polluting corporations that has been previously withheld from the public, making it possible to monitor and expose their wrongdoings.
Click here to read about how the release of tobacco industry documents through the Master Settlement Agreement in the U.S. helped advance tobacco industry liability.
Protect policymaking from polluters’ manipulation
Pass and implement conflict-of-interest policies to create the space for policymakers and public-serving actors to advance justice and real solutions.
What does this look like?
Reduce the ability of polluters to advance policymaking that protects their profits by implementing measures to firewall policymaking from their interference and influence.
This includes but is not limited to:
1) instituting a firewall to end polluting industry access to decision-making processes.
2) addressing vested or conflicting interests.
3) ending preferential treatment of and rejecting partnerships with individuals or organizations directly or indirectly representing dirty industries.
End business with polluters
Withhold a corporation’s license to pollute and abuse by blacklisting polluting corporations, especially those that are currently under public scrutiny or investigation.
What does this look like?
Ban corporations that are currently the subject of legal investigations or found guilty through such investigations (sub-nationally, nationally, regionally or internationally) for allegations related to fraud, misconduct, or human rights abuses from receiving any privilege or incentives, including but not limited to subsidies, stimulus funds, tax breaks, and access to policymaking spaces and negotiations.
International institutions such as the UN bodies and the World Bank or other financing and investment bodies cease relationships with, or blacklist, these corporations.
These measures should also be taken toward polluting corporations and industries in general, in addition to applying them immediately to entities under legal scrutiny.
End the World Bank’s Ease of Doing Business rankings, which grades economies not on the strength of their environmental or corporate accountability policies, but effectively pressures countries to deregulate.
Cut ties and contracts with such corporations at all levels, including local-level partnerships that allow polluters to “greenwash” their image and buy goodwill among community members.
Recognize and deliver climate reparations
Global South communities, women, youth, and Black, and other communities of colour, and Indigenous communities are on the front lines of the climate crisis. Recognize that they are owed reparations for the damage wrought by climate change. And deliver reparations by compelling polluting corporations to pay their debts.
What does this look like?
Distribute and deliver reparations owed to communities on the frontlines of the climate crisis by requiring corporations to pay their climate debt to these communities.
Reparations should be impunitive to avoid dependence on polluting corporations.
Reparations could be delivered in part through a variety of means, subject to the approval of affected communities, including:
Direct compensation for losses incurred (both past, present, and future).
Restoring land unlawfully or unduly under the control of polluting corporations back to its natural stewards, i.e. indigenous communities or local/frontline communities.
Making accessible technology that directly helps impacted communities respond to and address the impacts of climate change.
Cancel any and all debt from Global South countries or frontline communities that arises out of financing real and legitimate climate action within a country.
Community-based climate damage funds
Provide support needed to frontline communities and countries that are adapting to climate change while simultaneously enduring its impacts.
What does this look like?
Establish national or local climate damages/self-defence funds that collect, govern, and disburse the funds retrieved from liability measures advanced internationally, nationally, or sub-nationally.
These should be community governed.
Funds should provide for:
the development of community controlled renewable energy initiatives;
ensuring food sovereignty;
increasing resilience against climate disasters.
Contact us.
This liability roadmap is meant to be a living document. We intend to update it as new opportunities, guidance, and case studies emerge.
Please reach out to info@liabilityroadmap.org if:
You would like to suggest an addition to the roadmap, such as a case study, a toolkit, or liability measure not currently reflected here.
You are a public decision-maker looking for support in advancing one or more of the liability measures laid out in this roadmap.
While we may not be able to assist with every request, we will do our best to provide additional resources and connect you to a convening organization that may be able to support you.