Originally published 27 October 2020. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
Will Big Oil face the same legal challenges as Big Tobacco?
A recent Special Report in The Economist had a section heading called ‘Courtrooms are the new battleground for climate activism’. It chronicles the growth in litigation against oil companies and others as campaigners raise the stakes and the climate change debate matures, especially in the United States.
Cases vary enormously. Some rely on the argument that companies have continued to extract fossil fuels and thereby made extreme weather events more likely. Some have been based on human rights, and others have targeted Oil Executives for taking risks with shareholder values by disregarding the existential threat to their core business. In Europe, ClientEarth bought shares in EnEa, a Polish utility and challenged the economic arguments for a proposed new coal-fired power plant. When it went to court, they won.
Last December, the Dutch Supreme Court ordered its Government to cut the country’s greenhouse-gas emissions. Two months later, the plan for a Third Runway at Heathrow collapsed when the Court of Appeal declared it to be inconsistent with the UK’s commitment to zero-emissions. In a few weeks, eyes will be on an Australian case. This is against a pension fund for not safeguarding its investors' funds by continuing to pour money into fossil-fuel industries despite the avalanche of regulations coming from Governments around the world.
Underpinning many of these actions is growing evidence that, for decades, major oil companies knew and understood the mounting evidence that their products were a major factor in disastrous climate change. Lawyers compare this to the fate of the tobacco industry. It took decades but ultimately it was shown that the industry had concealed evidence about health risks. In the UK, this culminated in the high-profile case when it took Jeremy Hunt to Court alleging that the Government consultation on plain packaging was unlawful. It lost despite packing the Court with more QCs than the US Supreme Court has judges! Climate activists see this as history repeating itself. Powerful commercial interests are resisting change and Governments frustrated in their attempts to clean their environments. No wonder passions run high.
Against this backcloth, we should ask this question. If important decisions more often required a full and proper consultation, would it be more likely that relevant evidence would be forthcoming? Could industries such as Big Oil and Big Tobacco continue to conceal information and intimidate opponents? In other words, could improved transparency have changed history?
The entire principle of consultation is that it should be an informed debate. Decision-makers are meant to enjoy the benefits of having heard evidence - both for and against. Those likely to be affected are meant to have confidence that adverse implications have been properly calibrated and taken into account. The general public is meant to be reassured if it knows that decisions are taken in line with the idea of evidence-based policy-making. At least that’s the theory.
Three trends work against this ideal. First, as western democracies have abandoned the post-war consensus, and become polarised, more and more decisions become matters of ideology rather than evidence. Second, social media’s widening of access to any and anyone’s ideas has encouraged many ‘alternative truths’. Fake news is just the latest terminology, but lies, half-truths and deceptions make it less easy to know what the real facts are. Thirdly, the speed of decision-making militates against calm deliberation and the time taken to assemble the evidence. Examine the story of COVID-19 in the United States – it is a case study in all three.
A lawful consultation requires the information placed before consultees to be sufficient to allow ‘intelligent consideration’. Although the consultor prepares the narrative, anyone who thinks they are not being told the truth can mount a judicial review. It is costly (and we certainly need a mediation/arbitration service for consultations) but, unless curtailed by the Government’s current review, it works well enough to stop the most blatant abuses.
But we must go further. One of the excellent features of Citizens’ Assemblies is that, when run well, their citizen members have a role in selecting what evidence they hear. Indeed, they can demand certain evidence. In more traditional consultations, are we approaching the point where stakeholders and those in dialogue in the pre-consultation phase can insist upon certain issues being addressed in the consultation narrative? In the case of oil and public policy about energy sources, for example, should not consultations be obliged to present the science in an unbiased way?
The tobacco industry avoided necessary scrutiny for years because it was lightly regulated and Governments had little interest in upsetting a major taxation revenue-stream. There was no consultation. The world has changed. The Grantham Research Institute at the London School of Economics estimates that there are now 1,900 pieces of climate legislation around the world. Many of these are subject to whatever form of public consultation that countries undertake. If these were sound enough, just imagine the impact on national politics. Climate activists complain that politicians have become risk-averse. They worry about antagonising voters who are nervous about behaviour change. But change is being demanded, and politicians’ reluctance to make difficult choices has emerged as a key stumbling block.
The global pandemic may be changing all this. We have suffered unprecedented limits on our human rights and freedoms, and often in the name of ‘following the science.’ A new emphasis on the evidence can only be good news, and a stronger commitment to consultation and public debate is a major element in achieving this.
TRIGGER POINTS
- For details of the ClientEarth action against EnEA, click here
- For details of the Faulks Review of Judicial Review
- Tuesday Topic 304 in 2016, covered important aspects of the Tobacco case - New insights for the interpretation of conflicting consultation responses.
- Despite the Faulks Review, the Institute anticipates continuing legal challenges, and consultation specialists need to understand the key principles and major precedents. The best way may be through through e-learning – specifically, Law of Consultation online
This is the 364th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement