Major polluters and governments could be held to account by “climate justice” court cases, said Jeffrey Sachs, Professor of Economics at Columbia University, at a lecture hosted by the Grantham Research Institute on Climate Change and the Environment at the London School of Economics and Political Science last week.

Some court cases are already underway. Professor Sachs cited a settlement of US$18.7 billion for the 2010 BP oil spill. He suggested that citizens could similarly take action against governments and big polluters to claim compensation for losses and damages caused by climate change.

In his ‘proposal for climate justice’ Sachs pointed out that it is those regions that have contributed least to climate change that are most vulnerable to its impacts.

Last month, parts of the Caribbean were devastated by two major hurricanes (Irma and Maria), though it contributed “almost nothing” to climate change said Professor Sachs. The losses from Hurricane Maria are expected to total more than US$50 billion – less than half of which is covered by insurance.

Professor Sachs emphasised that people who are worst hit by extreme weather events made worse by climate change are usually poor with no buffer to the costs of losses and damages and also tend to live in more exposed locations because that is where they are pushed to by wealthier people.

He said that compensation for losses and damages from oil and gas companies could provide some “distributive justice” and also help fund adaptation and mitigation against future extreme events.

Court cases based on the common laws of public nuisance and the doctrine of public trust would set a precedent for polluters taking their share of responsibility for the impacts of climate change, Professor Sachs pointed out. He added that such cases would be a temporary strategy for dealing with loss and damage.

Professor Sachs said that the success of legal cases would depends on three things – that perpetrators can be identified; that causation can be established between their action and the public nuisance; and that it can be shown that the impact was known or foreseeable. He told the LSE audience that the ground work on all three issues had already been carried out.

Researchers have attributed the emissions from major oil and gas companies and could be used to demonstrate their share of responsibility. Exxon Mobil and Chevron together are responsible for almost 7% of global emissions since 1750.

Scientists have shown that the increase in frequency and intensity of individual extreme weather events can be linked to climate change with enough certainty to provide legal proof of ‘probabilistic liability’ in court. Claimants have to show that the link exists on the balance of probability, which means “more likely than not”, or over 50% certainty.

An Environmental Research Letters paper which provides a detailed analysis of Exxon Mobil’s climate communications shows that “as documents become more publicly accessible, they increasingly communicate doubt” which could help to back up claims of intent, said Professor Sachs.

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