Climate change: civil society steps up legal action

Climate change: civil society steps up legal action

Director of the Urgenda Foundation, Marjan Minnesma, accompanied by 11-year-old plaintiff, Anica van Staa, in front of a local Court in The Hague, in the Netherlands, on 24 June 2015. They represent a group of almost 900 citizens petitioning their government to assume its “duty of care” and to protect them from the imminent dangers of climate change. In an unprecedented verdict, the Court ordered that greenhouse gas emissions be cut by at least 25 per cent by 2020.

(AP Photo/Peter Dejong)

Climate change litigation has been flourishing since 2015, almost all over the world, from Pakistan to the Philippines, the Netherlands to the United States. Taking the “climate cause” to court is not, however, novel. It dates back over ten years in the United States, with well-known cases such as Massachusetts v. Environmental Protection Agency (2007) or American Electric Power v. Connecticut (2011), chiefly aimed at ensuring the application of existing regulations on air pollution and expanding it to include climate change.

In Australia, a country pioneering the judicialisation of climate change, climate litigation has existed since the early 2000s, seeking both to limit carbon emissions and to press for preventive measures against climate change.

What is new is the legal action taken in the last three years to press states to assume their responsibilities with regard to climate change. States, by virtue of their duty to protect their people, have an obligation to respond to citizens over their inaction or inadequate action on climate change. Climate lawsuits initiated against states by civil society are not, however, based on newfound rights, but on those already enshrined in national constitutions, laws, climate plans or even international commitments (Kyoto Protocol, Paris Agreement) signed with regard to climate change. These lawsuits not only frame the climate issue in terms of justice but also in terms of long-standing, pre-existing rights.

Civil society is now taking on the climate cause in a radically new way. The issue of climate disruption is no longer the sole remit of scientific experts. Nor is it a matter confined to international negotiations within the United Nations. It has become a case taken up by citizens, and one that is managing to catch the interest of judges, lawyers and associations alike.

Two examples can be quoted of emblematic cases in which the courts ruled in favour of the plaintiffs and deemed the state responsible. One is the Leghari case, initiated in September 2015 by a small farmer in Pakistan, petitioning the state to protect him and all citizens against the adverse effects of climate change.

The other was filed at around the same time in the Netherlands, by around 900 citizens who joined forces with the NGO Urgenda to hold the government accountable, based on its duty, enshrined in the Dutch constitution, to take care of them and to take every action necessary to ensure their survival. In India, then in South Africa, suits have been successfully filed by individual citizens, such as nine-year-old Ridhima Pandey, as well as associations.

Towards a global movement

Further cases filed in other countries remain pending and others have managed to pass the first stage of being accepted by the judge and are waiting for a verdict to be delivered. Some have not been won, but have succeeded in sending out a strong message, across the globe, such as the case of the Peruvian farmer who filed action against [German energy giant] RWE before a German court. He was suing the firm for damages and interest for the costs he had been forced to incur to adapt to the rising water levels in his country.

In Belgium, the NGO Klimaatzaak called on the court, following a petition, to force the authorities to respect their commitments: to cut the country’s greenhouse gas emissions by 40 per cent relative to 1990 levels, by 2020. In New Zealand, law student Sarah Thomson filed suit against the government on account of its “unreasonable and irrational” policy on climate change. In the United States, it is young citizens who mobilised around the NGO Our Children’s Trust, on behalf of present and future generations, to hold the federal government to account.

In Norway, Greenpeace filed action against the Norwegian government for having issued new oil production licences, arguing that this production and its impact on the climate violate rights established in the Norwegian constitution. In January 2018, the court ruled that the government had not breached the constitution. Greenpeace has decided to appeal.

The same organisation has requested the Commission on Human Rights of the Philippines to issue a resolution acknowledging that the major fossil fuel producers have violated human rights by contributing to the climate change process.
This petition, still under investigation, has led climate litigation to be extended to include the issue of indigenous peoples’ rights and the rights of nature, as seen in the recent case on the impact of deforestation and the historic ruling issued by the Supreme Court of Colombia. The NGO has based its case on scientific expertise attesting the fact that climate change is a threat to all humanity and ecosystems, and that it is no longer a question of mere probability or speculation but well-established facts.

Breaking new legal ground

Going to court to settle a planetary issue not dealt with by international law, that’s where the novelty lies. And the key lies in getting creative with the law. Associations are now mobilising rights never or hardly ever invoked in direct relation to climate change. Judges, for their part, are showing open-mindedness and innovation by agreeing to hear such cases and deeming them admissible. Some have gone as far as to recognise, in their conclusions, that it is time to act: “It is time to move on,” the judge said in the Pakistani case, for example, whilst the Australian judge spoke of the “court’s duty to react and to do something in response to the government’s inaction and apathy”. It is what might be called judicial activism.

This positive, proactive approach taken by judges is combined with growing awareness about climate change among the public and the growing expertise of the associations bringing these actions. The associations do not hesitate to refer to the numerous scientific studies highlighting the intensifying and unrelenting nature of the climate disruption phenomenon.

As regards the arguments put forward in these cases, rights are being mobilised that already exist in various country’s laws and jurisprudence, such as the “duty of care”, or in their constitutions, such as the “right to a healthy environment”. The deployment of these rights to protect citizens against climate change is a reflection of the associations’ grit and legal astuteness.

Holding states and companies accountable

States are being called on to assume their responsibilities, to take action, to be more proactive. In the Netherlands, the case put forward was that the state had neglected its “duty of care” towards its citizens, based on the presence of a “danger” placing their lives “at risk”. Moreover, the unpredictability of this threat, it was argued, meant that the state had all the more reason to be “cautious”, triggering the application of the “principle of precaution”. In other cases, such as in Belgium, the “duty of caution” has been evoked, or the violation of fundamental rights, such as the “right to life”.

Such lawsuits are now being extended to the private sector, and the major fossil fuel companies are being held to account. In California, a movement bringing together 40 municipalities has been built around various lawsuits against the so-called “Carbon Majors”, the world’s largest fossil fuel producers, liability suits, in the main, accusing them of “endangering others”, “deliberately misinforming shareholders” or “irresponsible acts”.

The City of New York, meanwhile, petitioned the Attorney General last winter to support its demand for climate justice against Exxon Mobil and Chevron. And at the end of February 2018, the City of Paris adopted a motion proposing that action be envisaged against fossil fuel industries, given the risks and dangers presented by the Seine bursting its banks and the flooding linked to climate disruption.

Civil society has started a movement that is spreading across the world at high speed. One of the most innovative arguments put forward is that all states have a duty to work towards building a “sustainable society”. Associations are thus defending an interest that clearly goes beyond national and generational boundaries. This transnational and transgenerational interest is probably the key to the success of these lawsuits and the reason they have managed to rouse the support of judges and the public. A case to be watched…