Insurers facing climate change coverage litigation, creating climate change policies
While insurers are bracing for potentially significant climate change coverage litigation (see, e.g., Kivalina) under past and current policies, insurers are simultaneously beginning to develop insurance products for risks associated with technologies designed to address climate change issues.
Some of the insurance industry effort will likely be geared towards shaping public policy on these issues through the sponsorship of studies, such as the Catlin Group’s $6 million Artic Survey. Other insurers, such as Zurich, have created “climate initiatives,” which include internal “climate offices” and “climate change advisory councils.”
While insurance industry efforts to fund research and studies are laudable, even if ultimately designed to create markets for new insurance products, policyholders should be wary that insurers do not use those insurance industry-funded efforts in a self-serving way to develop “evidence” to defeat coverage claims by policyholders for these risks under past and current policies.
Oxfam launches "Climate Change Litigation Competition" while declaring that "Litigation is seldom the best way to solve a dispute"
Oxfam’s recent report, Climate Wrongs and Human Rights, advocates a human rights-based approach to climate change. The report largely focuses on the application of human rights principles, defined by Oxfam as a “fundamental moral claim each person has to life’s essentials – such as food, water, shelter, and security,” to international climate policymaking. But it also advocates changes to human rights laws and institutions to overcome what Oxfam cites as barriers to litigation against “countries and corporations that have long been producing excessive greenhouse gas emissions.”
In a section entitled “Litigate or Negotiate?” Oxfam argues (p. 10):
Human-rights laws and institutions must evolve fast to rise to the unprecedented international challenge that climate change creates. Creative human-rights lawyers could push to have courts recognise future injury (because of the delay between emissions and climatic events), and joint liability (since emissions come from multiple sources) in such cases. They could likewise seek to clarify and activate international legal obligations (due to the far-reaching international impacts of greenhouse-gas emissions), and call for an international venue (perhaps under the UNFCCC) where people whose rights are effectively being violated by other countries’ emissions can seek some form of redress.
This proposal raises numerous potential issues, not the least of which is whether there is room for a threshold analysis of specific causation in these “creative” legal theories. That question takes on more significance given the given the suggestion that courts recognize future injury.
Advocacy of the use of human rights principles as a tool in climate litigation is not new. In December 2005, a coalition of Inuit – on behalf of “all Inuit of the Arctic regions of the United States of America and Canada” purportedly “affected by the impacts of climate change,” – petitioned the Inter-American Commission on Human Rights to declare that the United States, “as the largest source of greenhouse gases,” was in violation of the OAS Declaration of the Rights and Duties of Man. Among other things, the 175-page petition asked the Commission to recommend that the United States:
Adopt mandatory measures to limit its emissions of greenhouse gases and cooperate in efforts of the community of nations – as expressed, for example, in activities relating to the United Nations Framework Convention on Climate Change – to limit such emissions at the global level.
After significant lobbying, the Commission invited the lead petitioner, Sheila Watt Cloutier, to present to the Commission on the broad question of the link between climate change and human rights. But the Commission declined to hear the specifics of the petition “laying blame for the Inuit situation.”
On the same day that Oxfam released its recent report, it also launched an international Climate Change Litigation Competition calling “lawyers, academics and law students to come up with the most innovative legal case for a developing country to take legal action on injuries suffered from climate change.”
This competition is somewhat surprising given that the author of the Oxfam report acknowledged that “[l]itigation is seldom the best way to solve a dispute.”
Trying to fashion international climate policy through piecemeal litigation in front of an international tribunal yet to be created or empowered – and unlikely to be created or empowered given the stated endgame of the would-be plaintiffs – may not be the most productive approach to international climate issues. Perhaps a competition for innovative international policy proposals would be a better first step?
We look forward to analyzing the winning entry in a future post.
