Earlier this month, Peter Frumhoff, Richard Heede and Naomi Oreskes published an exciting article entitled “The climate responsibilities of industrial carbon producers” in the journal Climatic Change, suggesting that fossil fuel companies need to take greater responsibility for the harm caused by climate change.
We’ve written before about the responsibility owed by fossil fuel companies arising from the harm that their product is causing, including discussing some of Richard Heede’s past work quantifying the contributions of individual fossil fuel companies to global historic emissions.
This new piece is a different and important step forward because the scientists, by suggesting new ways of apportioning “responsibility” for climate change, are commenting on climate change policy. This is undoubtedly a response to policymakers’ historic refusal to hold fossil fuel companies accountable. The authors underscore the influence Big Oil has had on politics and the ways in which scientific data suggests that these companies are responsible for climate change.
Common but differentiated v. corporate responsibilities
The article calls for the consideration of alternative climate change responsibility regimes – rather than the “common but differentiated responsibilities” principle currently used in international negotiations and adopted by the United Nations Framework Convention on Climate Change at the Rio Earth Summit in 1992. Allocating responsibility this way was consistent with the “general ethical principle, as well as the common sense of daily life, that responsibility for a problem is assumed to fall on those who create it, particularly if they do so knowingly.” However, as the authors argue, “the nation-state framework … tended to obscure other ways of looking at the question of climate responsibility”.
The article suggests that adhering to this ethical principle actually warrants a greater focus on fossil fuel industry players for a number of reasons:
1. A relatively small number of corporations have produced the fossil energy that has contributed a large proportion of total historic emissions.
2. These major corporations had a high level of internal scientific and technical expertise, so they were aware of and in a position to understand the available scientific data on climate change when it was first released in the late 1980s.
3. They chose not to adjust their business models to anticipate policies motivating a transition to low-carbon energy when they could have done so.
4. Instead, large fossil fuel companies have actively sought to discredit and deny scientific evidence of the climate change problem.
The authors note that calls for heightened civil society engagement can be used to put pressure on companies to change their ways, in the form of shareholder actions, divestment campaigns, consumer boycotts, and litigation. The companies need to be made aware that they operate with a social license and that their licenses will be revoked if they fail to act on their moral and social responsibility.
Fossil fuel companies created the problem, and they did so knowingly
This approach to responsibility reflects the role many of these companies took in actively conspiring to block climate policy from governments that showed an initial willingness to enact it. The authors document the response of fossil fuel companies to the evidence of human-induced climate change when that evidence first became available in the 1990s. For example, they point out that industry lobbying factored heavily in the 2001 rejection of the Kyoto Protocol by the US and in the failure of the US Senate to take up federal climate legislation after a comprehensive cap on emissions passed the US House of Representatives in 2009.
According to the paper, the fossil fuel industry:
created a self-fulfilling prophecy: the absence of carbon regulation would ensure that fossil fuels would continue to be a good investment, and the companies would maximize profits for their shareholders to the detriment of the world at large by continuing to expand fossil fuel discovery and development.
This was all done while an alternative low-carbon energy vision had been articulated and was possible. If responsibility should fall on those who create a problem, particularly if they do so knowingly, the authors note that fossil fuel companies qualified when they spent billions to “create a network of front groups to spread misleading claims about climate science.”
Greater ability to pay
As a person who has closely followed climate negotiations over the last decade, I find the authors’ approach refreshing. “Common but differentiated responsibilities” is a scheme that makes sense from an international law perspective, but it is also a concept that has been marked by a lack of progress. The article describes how different countries have “divergent interpretations of what exactly the problem is, how to assess its costs, how to identify the responsible party or parties (particularly if many individuals or groups contributed), how fully they apprehended the consequences of their actions, and whether reasonable alternative actions were available to them”. So far, nobody can come to an agreement, as evidenced by stalled negotiation after stalled negotiation in recent years. Western countries are unwilling to dramatically reduce their current greenhouse gas emissions or to accept responsibility for their historic emissions. Developing countries struggle to balance competing goals of slowing and ultimately reducing emissions while trying to provide their citizens with a minimum standard of living. Scientific reality tells us that developing nations cannot continue down carbon-intensive paths to development without causing serious additional future damage. How do we solve this problem?
In my opinion, shifting some responsibility away from governments and onto companies that continue to develop fossil fuel resources can provide part of an answer. Governments can’t avoid 100% of the cost of climate change because of their unique public duties to deal with many of the problems it will bring (for example, maintaining infrastructure and disaster-response). They face adaptation costs in the billions of dollars but have very limited resources and are accountable to the public for every dollar spent.
Compare this with fossil fuel companies who typically have deep pockets and a much greater ability to pay for the damages they are causing. The question is not whether the public or fossil fuel companies should pay, but rather how much each should pay. If “common but differentiated responsibilities” was based in part on greater ability to pay, then it makes sense to extend this principle even further by shifting some responsibility onto fossil fuel companies.
Emphasizing the power of civil society
The other reason this approach is exciting is because it emphasizes the power that lies with individual citizens as consumers and activists. Sometimes as an individual, it’s hard to imagine how you could possibly be helpful in the fight against mega-corporations with billions of dollars in the bank. Yet as the article mentions, “history is replete with examples of products and activities that were once accepted but later rejected.” For example, the tobacco once touted the opinion that responsibility for smoking-related illness lies with smokers because they choose to smoke. However, “as the evidence of the harms of tobacco became known, this argument was increasingly rejected by a society that concluded that manufacturing a product that killed people, even if legal, was morally problematic”. Litigation was launched resulting in multi-million dollar settlements and laws were passed to reflect society’s changing values.
If it works for tobacco (and asbestos, and lead), why can’t it work for fossil fuels? The bottom line is how important it is for individuals to stay informed and engaged. As the article states, “if consumers, regulators, legislatures, shareholders, or the public at large disapprove sufficiently of an activity, it may become impossible for a firm to remain in business, or at least to continue business as usual.” We know these companies respond positively to market forces – otherwise, they would have stopped fossil fuel exploration and development as soon as climate change was confirmed. Through shareholder actions, divestment campaigns and consumer boycotts, we can change the message the market is sending. By launching litigation and holding fossil fuel companies liable for the costs they are creating, we can force those costs to become part of their accounting mechanisms.
Conclusion
As Frumhoff, Heede and Oreskes’ article illustrates, fossil fuel companies have done their best to mute government responses to climate change. While it is still important to devote effort to changing those government responses, it is time we turned a greater portion of our attention to the actions of these companies. We need to get to the root of the problem, and that means confronting fossil fuel companies head on to let them know their behaviour is no longer going to be tolerated.
By Justine Desmond, Summer Law Student Volunteer