Directors are in the crosshairs of corporate climate litigation

CPAs in corporate director positions should be aware of legal risk

HALIFAX – The directors of RWE, a German energy company, had probably never heard of the small village of Huaraz, Peru before 2015. But Saúl Lliuya, a mountain guide and farmer there, sued RWE for climate-related harms that year.

Lliuya’s lawyers, supported by Greenpeace, argued that RWE’s historic green house gas emissions have contributed to increased global temperatures, which have, in turn, caused the glaciers around Lake Palcacocha to melt. The lake sits above Huaraz, where more than 50,000 residents now face an increased risk of severe flooding.

The Higher Regional Court of Hamm, in Germany, agreed with Lliuya’s arguments and let the case proceed to the evidentiary stage. No matter what the outcome, the court’s statements that climate harms can, in principle, give rise to corporate liability, is historic — no other court has made this decision before.

The intersection between climate change, energy and corporate law is a fast-emerging area. This case is part of a second wave of litigation against corporations, and has implications for directors and their legal duties. Corporate fiduciary duties and corporate law have traditionally been insulated from environmental and climate concerns, but as the impacts of climate change escalate, this may no longer be true.

The second wave of climate litigation

The directors of RWE are not alone. There has been an explosion of climate litigation launched against fossil-fuel intensive, or “carbon major” corporations.

The cities of Oakland and San Francisco have sued, as have New York and Baltimore. So have counties in California, Washington and Colorado, the state of Rhode Island and fishermen in Oregon and California.

Most recently, non-governmental organizations in the Netherlands have launched suits, and others are being considered in Toronto and Victoria.

These cases have been dubbed the second wave of climate litigation against carbon majors. There has never been a successful case against corporations for climate-induced harm — yet.

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U.S. women’s soccer team throw spotlight on fight for equal pay

Alex Morgan & Megan Rapinoe. Photo: Jamie Smed/Wikimedia Commons

Champagne corks were popping in lower Manhattan on Wednesday — not only for the victorious United States women’s national soccer team as it was feted with a ticker tape parade up New York City’s “Canyon of Heroes” on Broadway, passing Wall Street, where the S&P 500 stock index crested 3000 for the first time in history. The 23 women of the soccer team had just returned from winning the World Cup in France. Back in the United States, they will continue another, more difficult battle for pay and working conditions equal to those of their male counterparts in the U.S. Soccer Federation. A sign held during the parade by team member Crystal Dunn, an African-American player from Rockville Centre on Long Island, read, “Parades are cool — Equal Pay is cooler.” The crowd echoed the sentiment. As Carlos Cordeiro, the head of the U.S. Soccer Federation, spoke at the rally that followed the parade, the crowd chanted, “Equal pay! Equal pay!” It was the same chorus that reverberated throughout the Lyon stadium when the women became world champions last Sunday.

The success of Wall Street, juxtaposed with the pay inequality imposed on these remarkable women, recalled the statement made by one of New York City’s most famous mayors, Fiorella La Guardia, in 1946: “Ticker tape ain’t spaghetti.” La Guardia had just taken the reins of the United Nations Relief and Rehabilitation Administration, providing aid to refugees and others struggling to survive in the immediate aftermath of the Second World War. Paper ticker tape was ubiquitous in those pre-digital days as the means by which real-time stock prices were distributed. Hence, vast quantities of used ticker tape in New York’s financial district was repurposed as confetti to rain on returning soldiers, astronauts and victorious athletic teams since the first ticker tape parade in 1886, celebrating the new Statue of Liberty. La Guardia’s point was simple: While the postwar economy may have been booming and those invested in the stock market were doing great, it didn’t translate into food security for war refugees. Likewise, today, a parade celebrating women athletes is an honor, but it doesn’t make up for a lifetime of unequal pay. MORE

The women’s team filed a lawsuit last March, accusing the U.S. Soccer Federation of “paying them less than members of the MNT [men’s national team] for substantially equal work and by denying them at least equal playing, training, and travel conditions; equal promotion of their games; equal support and development for their games.” The U.S. women’s team has won four World Cup titles, four Olympic gold medals, has won many other tournaments and is ranked by FIFA as the No. 1 team in its women’s world rankings. Compare that with the dismal record of the U.S. men’s national team, which didn’t even qualify for the most recent World Cup. Despite their lackluster performance, the men earn far more, on average, than the women.

This disparity is common throughout the U.S. economy. Testifying before Congress last February in support of the Paycheck Fairness Act (H.R. 7): Equal Pay for Equal Work, Fatima Goss Graves, president and CEO of the National Women’s Law Center, laid out the disturbing details: “Women working full time, year-round, typically are paid only 80 cents for every dollar paid to men working full time, year-round. The wage gap is even worse when looking specifically at women of colour: For every dollar paid to white, non-Hispanic men, Black women are paid only 61 cents, Native women 58 cents and Latinas 53 cents.” She added, “Women, and especially women of colour, face overt discrimination and unconscious biases in the workplace which impact pay.”

The U.S. women’s soccer players now have a global platform to highlight the struggle for women’s pay equality and justice. As co-captain Megan Rapinoe said Wednesday: “Yes we play sports. Yes we play soccer. Yes we’re female athletes, but we’re so much more than that.” Rapinoe, the World Cup’s top scorer and best player, is an outspoken advocate for LGBTQ rights, and in 2016 became one of the first major white athletes to take a knee during the national anthem. Throughout the World Cup, she refused to place her hand over her heart or to sing the words of “The Star-Spangled Banner.” MORE

Alberta government only invites industry to consultation on new emissions regulations

First the province scrapped its carbon tax. Now clean energy advocates say they’re being shut out of talks about the province’s proposed new plan to deal with heavy polluters

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Minister of Environment and Parks Jason Nixon (middle), Minister of Energy Sonya Savage and Minister of Agriculture and Forestry Devin Dreeshen announce summer engagement on a new proposed emissions reduction system that would replace the carbon tax. Photo: Government of Alberta via Flickr

The Government of Alberta announced Tuesday it is beginning consultation on the emissions reduction system it hopes will replace the province’s existing carbon pricing for large emitters — but The Narwhal has learned no organizations working on environment or climate change issues have been included on the government’s list of stakeholders

Minister of Environment and Parks Jason Nixon said at a news conference that the government is now “seeking feedback on an improved way to manage emissions” — the province’s proposed Technology Innovation and Emissions Reduction (TIER) system, which focuses on heavy emitters.

Nixon told reporters that government representatives will meet with approximately 150 stakeholders this week in Calgary, including representatives of the oil and gas, agriculture, chemicals, mining, forestry and electricity industries.

list of the stakeholders obtained by The Narwhal does not include any public interest groups.

The Pembina Institute, a clean energy think tank started in Drayton Valley, Alta., in the 1980s, told The Narwhal it was not invited to participate in the consultations.

“It’s highly unusual,” Simon Dyer, executive director of the Pembina Institute, said in an interview.

Dyer said he heard first about the consultation in a news story following the government’s announcement.

“It’s a worrying signal about how this government is going to collect input from stakeholders,” he said.

Jess Sinclair, press secretary for Alberta Environment and Parks, told The Narwhal by email that “because the [emissions reduction] framework is designed with heavy industry in mind, we are beginning the consultation process focusing on affected industries.”

“That said, we are happy to engage with other interested parties in the spirit of collaboration, should they approach us and have relevant information to share.”

Sinclair provided The Narwhal with a list of “companies we’re currently consulting.” They include the Canadian Association of Petroleum Producers (CAPP) and other industry associations, the so-called ‘Big Five’ oil giants and dozens of other companies. (The University of Alberta and the University of Calgary are both also included, as a result of their roles as producers of their own electricity).

SOURCE

Advisors quit, accusing Trudeau government of dithering on corporate watchdog


Emily Dwyer, coordinator of the Canadian Network on Corporate Accountability, attends a news conference in Ottawa on Jan. 17, 2018, about the new federal corporate watchdog. File photo by Alex Tétreault

All the civil society and labour union representatives on a panel appointed by the Trudeau government to provide advice about corporate accountability have resigned, leaving only industry representatives and the government at the table with a lone academic.

The seven members and their alternatives, representing labour unions and other civil society groups, publicly quit their advisory roles on Thursday, complaining that the government had failed to give the newly appointed watchdog the teeth needed to investigate allegations of overseas human rights abuses against Canadian corporate citizens.

The members who resigned included representatives from Amnesty International Canada, the Canadian Council for International Cooperation, the Canadian Labour Congress, the Canadian Network on Corporate Accountability, the United Steelworkers Union, and World Vision Canada.

They said that the government had betrayed them by backtracking on a promise to make the watchdog, the Canadian Ombudsperson for Responsible Enterprise (or CORE), an independent investigator armed with the legal authority to compel witnesses and documents. MORE

 

Is Planting Trees The New Carbon Fighting Technology?

One has to wonder why it has taken so long to discover that tree-planting done on a massive global scale is likely to become one of the most effective tools in the carbon-fighting toolbox. A new study just out in Science journal claims that reforestation is “our most effective climate change solution to date.” This is mind-boggling. We are spending precious time and billions on technologies to suck carbon dioxide out the air we breathe. And trees can do this—for nothing. The following article by Stephen Leahy was first published in National Geographic. (Editor’s intro)

Planting Lots of Trees

An area the size of the United States could be restored as forests with the potential of erasing nearly 100 years of carbon emissions, according to the first ever study to determine how many trees the Earth could support.

Published [recently] in Science, “The global tree restoration potential” report found that there is enough suitable land to increase the world’s forest cover by one-third without affecting existing cities or agriculture. However, the amount of suitable land area diminishes as global temperatures rise. Even if global warming is limited to 1.5 degrees Celsius, the area available for forest restoration could be reduced by a fifth by 2050 because it would be too warm for some tropical forests.

“Our study shows clearly that forest restoration is the best climate change solution available today,” said Tom Crowther, a researcher at ETH Zürich, and senior author of the study.

Not a substitute for phasing out fossils

That does not alter the vital importance of protecting existing forests and phasing out fossil fuels since new forests would take decades to mature, Crowther said in a statement.

“If we act now, this could cut carbon dioxide in the atmosphere by up to 25 percent, to levels last seen almost a century ago,” he says.

It could take more than a hundred years to add enough mature forest to get sufficient levels of carbon reduction. Meanwhile 40 billion tons of carbon dioxide (CO2) from burning fossil fuels are being added to the atmosphere every year, said Glen Peters, research director at Norway’s Center for International Climate Research. MORE

Call of the Forest: The Forgotten Wisdom of Trees

Forests are one of the world’s most significant sources of food, new medicines and oxygen. Scientist and author Diana Beresford-Kroeger explores our profound biological and spiritual connection with trees, and meets people who are taking the lead to replant, restore and protect the last of the planet’s great ancient forests. WATCH THE VIDEO  (52:07)

First Nations in B.C. launch new legal appeal against Trans Mountain pipeline expansion

Chief Leah George-Wilson of the Tsleil-Waututh Nation announced at a press conference in Vancouver that they have officially launched their appeal of the approval of the Trans Mountain pipeline.

VANCOUVER—Several First Nations led by Tsleil-Waututh have again launched an appeal against the approval of the Trans Mountain pipeline expansion, alleging that Canada did not conduct a fair consultation with First Nations.

“The federal government’s approval of the pipeline is unlawful and must be quashed,” said Chief Leah George-Wilson of the Tsleil-Waututh Nation at a news conference in Vancouver. She was joined by representatives from five other nations that have filed for a judicial review.

In June, the federal government approved the expansion project for a second time. Last summer, the Tsleil-Waututh Nation and others won a major court case that forced federal authorities to reconsider the environmental risks of the increased tanker traffic associated with the project and undertake further consultation with Indigenous communities.

George-Wilson said it “feels like déjà vu” to announce yet another application for appeal to get a fair consultation process.

“Two and a half years ago, we were here announcing our latest court challenge, which we won,” she said. “Canada had an opportunity to get it right and they did not. We have not seen any significant difference in the consultation process, and in some ways it was worse.”

The First Nations maintain that building the $9.3-billion pipeline expansion is a constitutional violation, “primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations, and regulatory legal errors by the National Energy Board.” SOURCE

Want to help stop the Trans Mountain pipeline and tankers? We’re launching Pull Together, Round 3. But we can’t do it without you!

Yesterday, a joint legal challenge was filed by the Tsleil-Waututh Nation, Squamish Nation, Ts’elxweyeqw tribes, Shxw’owhamel Nation, Coldwater Indian Band and Stk’emlupsemc te Secwepemc Nation.

These Indigenous Nations are challenging (again) the federal government approval (again) of the Trans Mountain tarsands pipeline and the 700% increase in tanker traffic it will bring to the coast.

We’ve been here before. And we can do it again.

Yesterday, we heard leaders of these Nations share how this federal decision was the result of another hasty and deeply flawed review process that failed to satisfy the duty to consult, accommodate and seek consent from Indigenous Nations.

Chief Leah George-Wilson of Tsleil-Waututh Nation said, “It was clear that Canada had already made up their mind as the owners of the project⁠—they repeated many of the same mistakes again.”

We heard how the project would involve the digging up of burial grounds and sacred sites in Shxw’owhamel and Stk’emlupsemcte Secwepemc territories. It puts the Coldwater Band’s drinking water at risk. These are just a few of the many harms this project will create on the ground.
So the Nations are going back to court. I’m humbled by their leadership and their commitment to defending their lands and waters.

 

Environmentalism’s Next Frontier: Giving Nature Legal Rights

Ships and corporations have legal standing. Should ecosystems?

Matt Chinworth

In the summer of 2014, officials in Toledo, Ohio, announced that the city’s tap water was no longer safe to drink. A toxic algae bloom caused by fertilizer runoff had poisoned Lake Erie, the primary water source for the area’s half-million residents, sickening more than 100 people. Stores emptied of bottled water within hours. For three days, “it was just total panic,” recalls Markie Miller. “People were fighting over it.”

Miller joined Toledoans for Safe Water, a group of residents who had been trying to convince officials to clean up the lake, to no avail. Then, in late 2015, members of the group attended a presentation put on by the Community Environmental Legal Defense Fund about advancing the “rights of nature”—the idea that eco­systems, like humans, have legal rights.

After the presentation, some Toledoans met in a pub and drafted the Lake Erie Bill of Rights. This past February, voters chose to amend the city charter to grant the lake the right to “exist, flourish, and naturally evolve.” The amendment allows any resident to sue governments or businesses that infringe upon the lake’s rights—for example, by polluting it with fertilizer.

Toledo isn’t the only place to recognize the rights of nature. In 2006, Tamaqua Borough, Pennsylvania, passed an ordinance to prohibit corporations from dumping waste sludge into nearby open-pit mines by mandating that any resident could sue to vindicate the “rights of natural communities and ecosystems.” Since then, more than three dozen communities across the United States have adopted similar measures. In 2018, the White Earth Band of Ojibwe, a Native American nation in Minnesota, codified the rights of manoomin, or wild rice, to “flourish, regenerate, and evolve.” As Casey Camp-Horinek, an environmentalist and matriarch of the Ponca Nation in Oklahoma, points out, the rights-of-nature movement “simply recognizes what the indigenous people have always been a part of: the natural cycle of life belonging to all living things, not just humans.”

The White Earth Band of Ojibwe codified the rights of manoomin, or wild rice, to “flourish, regenerate, and evolve.”

Outside the United States, Ecuador wrote the rights of nature into its constitution in 2008. In 2017, a court in India ruled that the Ganges and Yamuna rivers have the same legal standing as people (the ruling was later overturned). The Whanganui, New Zealand’s longest navigable river, has legal standing under a law passed that same year.

Rights-of-nature laws often work by appointing a guardian to advocate for a particular ecosystem or natural feature, much like a parent represents a child’s interests in court. The guardian can sue on the ecosystem’s behalf. If the ecosystem is awarded damages, the money might go into a trust dedicated to funding its restoration. MORE

RELATED:
The Rights of Nature: The Case for a Universal Declaration of the Rights of Mother Earth

Capturing heat wasted in solar panels for use in distilling clean drinking water

Capturing heat wasted in solar panels for use in distilling clean drinking waterThe outlook of future PV farm: not just generating electricity, but also producing fresh water

…Testing of the modified solar panels showed them capable of purifying ordinary saltwater and seawater. In addition to removing dirt and other particles, the distillation process also removes dangerous heavy metals. Testing also showed the modified panels were able to purify up to three times as much as conventional solar stills. The researchers note also that the additions below the solar panels did not reduce their efficiency—they were still approximately 11 percent efficient.

Solar power with a free side of drinking water
Heat from a solar panel (upper surface) drives water vapor from seawater channels (dark blue) across porous membranes (orange) into freshwater receiver channels (light blue). Credit: Wenbin Wang 2019 

The researchers suggest their modified solar panels could be used in places where people have easy access to saltwater, such as the ocean, to provide clean drinking water. They further suggest that if future  included distillation capabilities, it is possible that they could produce up to 10 percent of the water consumed in the world. MORE

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Device could bring both solar power and clean water to millions

CAAP lobbying of the Alberta Energy Regulator

Hundreds of pages of documents. Hundreds of dollars to access. And just about as many acronyms.

Earlier this year, The Narwhal’s readers ponied up the cash to access lobbying records from the Alberta Energy Regulator. Readers wanted to know what Canada’s largest oil lobby group, the Canadian Association of Petroleum Producers (CAPP), was up to at all those meetings, workshops, breakfasts and coffee dates at Second Cup.

Turns out, there’s a lot to talk about.

We found that the regulator is quietly projecting the number of inactive wells in the province will double by 2030.

Then we found the oil lobby was actively pushing for the decision to automate the approval of oil and gas wells — a move that CAPP said would result in 15-minute approvals.

And now, in the final instalment in this series (our Alberta reporter, Sharon J. Riley, will have screen-shaped eyes if she spends any more time on these documents), we’ve found CAPP is lobbying the regulator to “streamline” the public involvement process in many oil and gas projects.

In the documents, the oil lobby group laments that allowing the public to file statements of concern about proposed projects is the “Achilles heel” of the approval process.

Legal experts say the oil industry’s proposed changes will “come at the expense of everyday Albertans.”

Dive into the details of our investigation to read more about how oil lobbyists are proposing to reduce, or eliminate, public involvement in the review of oil and gas projects. MORE