Posted originally on Buzzfeed News on November 30, 2019, at 11:12 a.m. ET
TACLOBAN, the Philippines — When the winds blow this strong, the rain stings like needles, scraps of wood cut through flesh like bullets, and corrugated metal sheets slice like knives.
On that morning in November 2013, the wind churned the ocean into a mountain of water and pushed it onto the city. Survivors remember the sea crashing ashore in three massive black waves, so tall even the coconut trees were drowned. The water lifted five cargo ships huddled by the city’s port into the air and sent them crashing on top of a slum on the opposite bank.
It was as if the sea was suddenly everywhere — even the rain tasted like salt.
Street artist and photographer AG Saño was asleep when the storm crashed into Tacloban, a small port city on the Philippines’ Pacific coast. The winds woke him at 4 a.m., shaking the walls of his hotel so loudly that it sounded “like a horse running on the roof.”
Saño raced to the ground floor, taking shelter with around 50 other guests. The storm surge soon shattered the hotel’s front doors. Water chased guests up to the first floor and kept rising.
When the storm finally passed and Saño could step outside, he saw two men pushing the corpses of a mother and daughter on a wooden cart through ankle-deep water. Then he met four fathers carrying the bodies of their children from the school where they’d drowned. He found a doctor who’d taken command of a dump truck. Saño volunteered to help him gather the dead, who were emerging from the receding waters by the hundreds.
Typhoon Haiyan was the most powerful storm to ever make landfall when it smashed into the Philippines on November 8, 2013, with wind speeds up to 235 miles per hour. The government said more than 6,000 people died, but the country’s top forensics expert later said she thought the real number was more like 18,000.
Saño spent four days helping to pile bodies into body bags to await identification or burial in mass graves. Then he decided he had to leave, because there was one body he could not face seeing.
He already knew his best friend in Tacloban — a tattoo artist called Agit Sustento — was dead, and Saño didn’t want to be the one to find him. Sustento’s corpse would be instantly recognizable from the tattoos that covered him from head to toe. Sustento, who originally studied to be an accountant, had just opened a new shop dedicated to reviving ancient traditions from the days when tattoos commemorated the victories of warriors in the remote northern mountains. Tattoos were not just fashion or art to Sustento, his friends and family said. They represented the connections between people, their identity, and the Earth.
Saño had come from Manila to document and photograph Sustento at work. Instead Sustento was washed away. So were his parents, his wife, and his 3-year-old son.
The only members of Sustento’s immediate family to survive were his younger siblings, Mal and Joanna. During the storm, Joanna struggled to hold their mother above the churning waters, but she drowned in her arms.
Saño and Joanna decided to dedicate the years after the storm to winning justice for their loved ones.
Typhoon Haiyan was not a natural disaster, Saño believed. Warming oceans cause storms to grow more powerful, and global warming is caused by greenhouse gas emissions. The Philippines had played little part in this — it’s a poor country estimated to have contributed less than 1% of all greenhouse gasses to the atmosphere.
Saño came to see Tacloban’s citizens as the victims of a crime, but no one was trying to hold to account the people he saw as responsible.
“When people would die in, let’s say, an apartment in New York City, investigators would find out who caused it, right? ... They find justice for that person,” Saño said. “But how come we have [thousands of] dead people in Tacloban and nobody was asking whose fault it was?”
This question would help revolutionize climate activism over the years that followed Typhoon Haiyan. World leaders had wasted decades failing to reach a collective agreement on climate action, and not everyone was equally to blame for global warming. Oil companies and other large polluters had grown rich while the world got hotter, pouring millions into lobbying efforts to keep people hooked on fossil fuels. Activists like Saño came to believe that this was a kind of mass destruction in slow motion. If they could start getting judges to agree, courts might be the lifeline needed to prevent the Earth from warming further.
To lay the groundwork for future lawsuits, Saño and a group of other citizens and NGOs are petitioning the Philippines’ top human rights tribunal to declare fossil fuel giants like ExxonMobil and Shell responsible for violating the fundamental rights of the Filipino people by contributing to climate change. This coalition, led by the local chapter of Greenpeace, includes not just survivors of Typhoon Haiyan, but also people hurt by climate change in other ways — fishers whose stocks are disappearing from the ocean, and farmers whose crops are failing in changing weather.
They filed their petition in 2015 and will get an answer next month when the Philippines Commission on Human Rights is due to release the results of an investigation conducted over three years and three continents. It has chosen to release its findings during the global climate summit in Madrid, a sign it wants to send a message to the world.
The legal team knows its argument is a long shot — only a few tribunals anywhere in the world have considered whether human rights law applies to climate change, and no one has successfully sued a fossil fuel company for climate impacts.
We won’t know exactly what’s in the report until December, but the commissioner leading the investigation, Roberto Cadiz, suggested the commission intends to give the petitioners one of their key demands: a declaration that the major carbon emitting firms have “negatively impacted the human rights of the Filipino people.” But, he said, the report would not weigh in on whether courts should hold corporations directly liable for climate damage. He said he had a number of concerns about people suing companies for the way they’d been hurt by climate change. First, he thought there were too many steps in between carbon being emitted and something like an extreme storm to hold a company directly liable for damage. Second, since everyone feels the effects of climate change, what gives any individual or group a greater claim on climate damages than anyone else? And, finally, he didn’t think it was fair to sue companies over specific climate damages when the whole world has relied on their products.
“It’s not a black-and-white issue from the point of view of climate justice … Right now they’re being sued, the carbon majors, but if they totally stop production, they’re going to be sued!” Cadiz said.
But even if the petitioners don’t get everything they want, they believe it’s an important step in changing the way jurists around the world think of climate change.
“Agit’s death was the responsibility of those corporations,” Saño said. “I know in my heart that it’s the case.”
Litigation is one tool climate activists haven’t fully tested, and they hope the Philippines investigation could inspire people around the world to fight global warming in court.
In recent years, lawyers and activists around the world have brought hundreds of cases in several countries in an unprecedented push to get courts to force action on climate change. The Philippines petition was among the earliest to be filed. The most successful strategy so far has been to sue governments for failing to protect their citizens from climate impacts, and top courts in a handful of countries have already ordered governments to implement climate plans on those grounds.
But it’s an uphill battle. For one thing, the science connecting the dots from carbon emissions to an individual storm like Typhoon Haiyan is complicated and incomplete, though it’s getting better. No court has yet concluded there’s a direct enough connection between a fossil fuel company’s emissions and the climate that would impose legal liability on the company for major catastrophes.
There’s also the problem of location. Courts will typically only try a crime if it happens within their own country, but carbon emissions are everywhere. If someone is hurt by climate change in the Philippines, and they want to sue an oil company like Shell — which is based in the Netherlands, but drills oil and sells it in many other countries — where do they go to court? If they find a court, how do they ask a judge to punish a fossil fuel company for selling a product that remains legal, one that governments even subsidize because it’s still considered essential?
Winning a case like that requires a legal revolution. There have been revolutions like this before, where arguments that were once unthinkable become obvious. The US Supreme Court outlawed racial segregation after upholding it for half a century; same-sex couples won the right to marry nearly 30 years after the Supreme Court ruled gay people could be arrested for having sex.
But these changes take years of work, in courts and in the culture. And for years, the most familiar story about climate change has been the one pushed by fossil fuel companies themselves once they were forced to acknowledge it was a reality: The burden for stopping climate change falls on individual consumers, who must drive less, fly less, and buy less. Everyone is to blame and so no one can be truly held accountable.
If judges are to take action on climate change, they must first believe it is a story of injustice.
That’s why Greenpeace’s lawyers decided to take this case to the Philippines Commission on Human Rights rather than directly to the courts. The commission is an independent agency under the constitution, with broader powers to investigate alleged abuses than courts have, but lacking a court’s power to enforce its findings.
This obviously has a major downside: The commission can’t force polluters to change their behavior or compensate climate victims. But these kinds of commissions can do a lot to change the thinking of judges when a related case comes before them.
The Philippines is a powerful place to challenge the climate change narrative. The country must cope with massive storms while more than half the population earns less than $5.50 per day. But, despite the efforts by a handful of local environmental activists, many people from Tacloban still don’t believe that climate change is a story of wealthy corporations inflicting harm on the vulnerable. If they’ve heard of climate change at all, residents will say they caused it themselves by burning too much trash or by throwing too much garbage into the ocean. Some priests in this deeply Catholic country even gave sermons saying Typhoon Haiyan was a form of divine punishment for human sins.
Challenging this idea is also hard because environmental advocacy is a deadly business in the Philippines. Shortly after he became president in 2016, Rodrigo Duterte gave a speech in which he said he wanted “to kick” an ambassador who asked about reducing carbon emissions. On Duterte’s first full day in office, a leading anti-coal activist was assassinated, and at least 30 other environmental activists were killed in 2018.
Both Duterte and the Typhoon Haiyan petitioners agree that the Philippines is a victim of richer nations. But for Duterte, that victimhood is not a chance to rally for climate accountability, but rather a reason to treat it as inevitable and continue business as usual.
The president sent the chief of his cabinet, Karlo Nograles, to a Typhoon Haiyan memorial ceremony in Tacloban earlier this month, where he boasted of a plan to build a sea wall to protect against storm surges — a “Great Wall of Leyte,” he called it, because Tacloban sits in Leyte province. This sea wall is planned to be about 13 feet high — even though Haiyan’s storm surge reached almost 20 feet in some places.
Nograles grew angry when asked in an interview with BuzzFeed News about plans in the Philippines to expand coal power, and whether the government could put more pressure on foreign fossil fuel companies.
“You’re always playing, looking at us — what’s the US doing?” he said as he stormed off. “You guys do it in the States. You show us the way. You show that you can win.”