Courtrooms across the globe have become a battleground for climate activists, nongovernmental organizations, and ordinary citizens to compel governments to combat climate change.
Climate claims raise complex questions of how authority and responsibility to deal with the climate crisis are divided between different branches of government in different jurisdictions.
The ways in which various national courts view the role of the judiciary in addressing this crisis differ significantly, as highlighted by two recent national court decisions from the Netherlands and the U.S. taking diametrically opposed approaches.
The Dutch case of Urgenda Foundation v. The Netherlands represents the most successful example of climate impact litigation to date. In 2013, the Dutch environmental group Urgenda Foundation and approximately 900 Dutch citizens sued the Netherlands alleging that the Dutch government’s failure to reduce greenhouse gas (GHG) emissions violated obligations under the European Convention on Human Rights (ECHR), the Dutch Constitution, and the Dutch Civil Code.
Dutch High Court Affirms Lower Ruling
In a landmark victory, on Dec. 20, 2019, the Dutch Supreme Court affirmed the ruling of a lower Dutch court and ordered that the Netherlands must immediately take action to reduce GHG emissions by at least 25% by the end of 2020 (compared to 1990 levels) to comply with its human rights obligations. The court emphasized that the Netherlands had an obligation under the ECHR to protect the right to life and the right to respect for private and family life from environmental threats that present a real and immediate risk.
Like the Dutch courts, other national courts have held their governments to account under the domestic constitutional framework. For example, in September 2015, the Lahore High Court in Asghar Leghari v. Federation of Pakistan found that the failure of Pakistan’s federal and state government to address climate change violated fundamental rights, such as the right to life, under the Constitution of Pakistan and ordered specific action to be undertaken, including the creation of a Climate Change Commission.
But not so in the U.S. On Jan. 17, the U.S. Court of Appeals for the Ninth Circuit in Juliana v. United States dismissed claims brought by plaintiffs, including 21 young individuals, seeking to hold the U.S. government liable for constitutional violations for “continuing to ‘permit, authorize, and subsidize’ fossil fuel use despite long being aware of its risks” and to compel the U.S. government to “phase out fossil fuel emissions and draw down excess atmospheric [carbon dioxide].”
The Ninth Circuit unequivocally recognized the dangers that climate change poses but found that measures of this magnitude were beyond the powers of an Article III court and required action from the executive or legislative branches.
On Mar. 2, the Juliana plaintiffs filed a petition with the Ninth Circuit for an en banc rehearing, requesting that a panel of 11 judges vacate the January decision and send the case to trial.
In the face of a hands-off approach from at least some national courts (including those of the world’s largest GHG emitter), what then of the opportunities and constraints for climate claims at the international level?
The recent decision by the U.N. Human Rights Committee in Teitiota v. New Zealand is a step forward but echoes questions of whether legal processes are the right way to handle this looming disaster. In September 2015 Ioane Teitiota filed complaint against New Zealand pursuant to the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) claiming that Teitiota’s deportation by New Zealand to his home state of the Republic of Kiribati violated his right to life under ICCPR Article 6.
Teitiota and his family migrated to and sought asylum in New Zealand on the basis that rising sea levels and other climate change effects, such as the scarcity of potable water and the erosion of habitable land, forced them to flee Kiribati. New Zealand denied Teitiota asylum and deported him back to Kiribati.
Although the committee ultimately denied Teitiota’s claim, it found that “environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life” such that governments must take into account whether deportation poses a real risk of irreparable harm to the right of life.
Despite the mixed reactions from national courts and international bodies, the recent wave of climate impact litigation gives cause for optimism that litigation can serve as an additional mechanism to spur governments to implement concrete and effective measures to fight climate change.
The Urgenda decision indicates that obligations arising under international law, such as the human rights protections enshrined in the ECHR, could prove a powerful tool that national courts can use to compel governments to undertake specific action to protect against the growing climate crisis.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Emma Lindsay is a partner and Jovana Crncevic is a senior associate in the International Arbitration & Public International Law Team at Withersworldwide.