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Can emitters be held liable for climate change loss and damages?

20 March 2024 at 12:05 pm


The Centre for Environmental Rights (CER) has launched a new report that explores liability and accountability of emitters, particularly major greenhouse gas emitting entities in the context of climate change loss and damage. The report is based on the major flooding that took place in KZN in April 2022. The unprecedented rainfall and flooding caused the deaths of over 400 people and economic losses were estimated at R17bn.

The deadly flooding caused a wide range of immediate and long-term impacts that killed people and devastated lives and livelihoods, as well as the natural and urban landscape in ways that are still visible today.

The report, being launched in Durban, explains how the climate change that is caused by greenhouse gas emissions from human activities are at least partially responsible for the catastrophic weather event that devastated the KZN coastline at that time. The report further explores the polluter pays principle, a globally accepted environmental law concept that requires any person or entity that causes pollution to be responsible for the costs of managing such pollution to prevent or repair harm caused.

While the 2022 floods caused widespread damage, it is worth noting that in most cases, at-risk communities living in informal settlements experience the impacts most acutely. Many of these settlements are close to rivers, below flood lines or situated on steep hillsides with little or no infrastructure to protect them from the elements. The report contains testimonies from people who watched their homes collapse before their eyes, as well as recollections from rescue workers who were unable to assist community members, during the unprecedented rain fall.

Much of the loss that occurred in the KZN floods has been attributed to climate changes that are exacerbated by the ongoing emissions from Carbon Majors. The Carbon Majors are the private and state-owned entities responsible for 63% of CO2 and methane emissions from over the last 150 years. 83 of these are fossil fuel producing entities, and 7 are cement manufacturers.

The fossil fuel industry makes staggering amounts of money – up to USD2.8bn of profits per day – while people, communities and governments endure most of the impacts and do not have the resources to recover from the losses and repair the damage. The research indicates that the cumulative cost of climate damages (based on loss of GDP) for the period 2025 to 2050 is broadly estimated at USD99 trillion

Michelle Sithole Attorney at CER says, “we are seeing how the state is having to foot much of the bill for loss and damage from the Durban flood and other similar events. Many vulnerable people and communities have their lives devastated, with no avenue for compensation. This report is intended to join the dots between harmful emissions and impacts on the ground, and it is promising that our legal system is potentially able to facilitate claims for climate loss and damage.”

Finally, the report contains an explanation of how South African law could potentially be used to institute a claim for compensation for losses and damages against entities such as the carbon majors. It finds that while there are challenging aspects to winning such a case, litigation like this is a viable proposition. Both legal advocacy and litigation will strengthen climate justice in many regards, support vulnerable communities and help get the necessary money from where it is to where it needs to be.


For Editors

Read the full “Polluter Pays for Climate Change Loss and Damage”

Read the Impact report by Professor Cathy Sutherland

Read the Legal Opinion

Visit our Loss and Damage webpage