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Forget the Kyoto protocol: it’s a waste of time and energy. Why spend a decade arguing over the odd percentage point reduction in greenhouse gas emissions? The only way to get to grips with climate change is to take it to the courts, claims maverick climate modeller Myles Allen of the University of Oxford. If science can nail climate change as a probable cause of deadly weather events, like the heatwave that hit Europe in the summer of 2003, then global warming becomes a matter for product liability law. Get the big oil companies in court, Allen says, and sue the pants off them. Even the threat of action will change their behaviour more radically than any government policy. Fred Pearce talked to the scientist who wants us to stop creating grand plans for stabilising greenhouse gases in the vague future and fight where we stand. In the courts. Now!

Can we really pin individual weather events on climate change?

Scientists usually say we can’t attribute individual weather events to climate change. But I think the European heatwave of 2003 is the first weather event where we can make the link. It was probably a once-in-a-thousand-year event. The immediate cause was a series of anticyclones over Europe. We can’t say those were made more likely by climate change. But we can say that climate change made the background temperatures within which those anticyclones operated that much higher.

And that’s the crux. Small changes in averages make extreme events much more likely. The 2003 heatwave was far outside the range of normal climate uncertainty. We can say with 90 per cent certainty that the risk of such a heatwave in Europe has at least doubled as a result of climate change. Our best estimates suggest it is more like a four to sixfold increase. The finding of a doubled risk is significant because established legal precedent holds that this is the threshold at which civil liability sets om. The lawyers have a case against the people who caused the warming.

If that sounds silly, remember that the heatwave caused up to 30,000 deaths. Most of the dead were old, it is true, but fewer than a quarter would have died in the following year. If this had been the toxic effect of a drug or a chemical spill, lawyers would have been swiftly involved. Of course, victims and their families would want governments to intervene to stop future disasters. But they wouldn’t wait around for that. They’d sue.

So who should they sue?

At the time of the heatwave, everyone blamed the healthcare services for not being prepared. That is a bit unfair. Not many sectors of society can cope with a once-in-a-thousand-year event. It’s well beyond what the Thames flood barrier in London is designed for, for instance. I’d say the real culprits are the 20 or so coal and oil companies that we know have been responsible for 80 per cent of carbon dioxide emissions.

A lot would depend on which statute the lawyers go for. If they go for product liability, then everyone down the supply chain would be liable: the company that sold you the petrol, the oil company that pumped it out of the ground, and the showroom that sold you the car that burnt it. But if you say this is an industrial waste issue, then the polluter pays. That might be the car driver.

Actions have already been taken against greenhouse gas polluters under public nuisance and human rights legislation. But none yet alleges actual harm. That will be the critical moment. It could be over an apparently trivial thing, like someone in Alaska suing an oil company because their conservatory subsided as the permafrost melted. But when it happens it could set a huge precedent.

But to sue someone you have to show they knew the harm in what they were doing and did it anyway.

Yes of course. So the question is, at what point in history did the impacts of climate change become foreseeable. Should it be 1896, when Svante Arrhenius first calculated the greenhouse effect? Or when the Intergovernmental Panel on Climate Change first reported it in 1990? Of course, according to the Bush administration it’s still not foreseeable, and their lawyers may be helping them stick to that position. If we accept 1990 as the start date for foreseeability, then companies can get away with some of their past emissions. But by the 2030s, more than half of the excess greenhouse gases in the air will probably have been emitted since 1990. So the issue of foreseeability will rapidly diminish.

“The legal route would be the most effective way to tackle climate change”

This is very different from the Kyoto protocol approach of national emissions targets. Why go this way?

The legal route would have much more impact on the use of fossil fuels than any conceivable formula devised by governments under Kyoto or anything else. I think it would be the most effective way to tackle climate change. And we might have to choose between the two: one thing I fear is that if governments start to seriously regulate carbon dioxide emissions then the companies producing them will have a defence – that their government had acted, so they didn’t have to. They might be off the hook.

So the Kyoto protocol is a bad idea?

If it were the only game in town then of course I would support it. But if we continue with decade-long negotiations over a 2 per cent cut in emissions by industrialised countries, which is what we have been doing, then we are not going to get very far. I think it is a mistake for environmentalists to put all their energy into that. The legal route is a viable alternative.

Most of my fellow climate scientists don’t like the liability idea. They believe action on climate change should be a managed process. It’s true the law can be unfair and arbitrary in its effects. Rich people might get settlements and poor people would not. But the conventional approach introduces its own injustices. Besides, the real goal is to cut emissions, not win compensation.

Just the possibility of legal action would have a big effect. Climate change would very rapidly become a bigger issue in boardrooms. Look at the impact on share price that the threat of legal action against food companies over obesity is having. That hits home in a way that 10 years of climate negotiations have not. If we seriously want to force companies to cut their emissions, this is the best route.

How can science help?

We need to work much harder at showing how greenhouse gases are altering our world right now. Climate scientists, including my modeller colleagues, have spent far too much time thinking about what could happen in a hundred years’ time. We should be helping today’s victims. I feel quite passionately about that.

My research group is compiling reports of how the weather today would have been different without climate change. We are working on the year 2000 right now, describing it as it was and as it might have been. The American legal community is very interested in this, because that year was very dry in the US. Reservoirs emptied and there were brown-outs when they couldn’t get enough hydroelectricity. Our studies could become a basis for legal action.

We want these kinds of comparisons to become as common as weather forecasts. When that happens, people will accept that we can show causality in the weather, and that will make the case for legal action. Right now, many judges would say it’s ridiculous to sue for bad weather. We have to educate them. And by the time the lawyers get their act together, we scientists will be able to make many more solid scientific statements about climate change and bad weather.