The changing climate of climate change litigation
In our October blog which reflected on the UN Intergovernmental Panel on Climate Change (IPCC)’s report on climate change, we touched on the increasing use of litigation in the fight against global warming, given the lackadaisical efforts of some governments and companies to take more urgent action on climate change. Here we dig a bit deeper into some of the more prominent cases and the issues being contested, which have been boosted by the IPCC’s report.
It should be noted that the IPCC report does not essentially alter anyone’s legal obligations; climate change cases still rely on a mixture of existing national and international legal principles. “It doesn’t change the law,” said Jonathan Church, lawyer at London-based firm Client Earth, “but at the same time it does potentially provide a lot of ammunition for those of us seeking to use the law to effect change in this area.”
Many current cases worldwide are using human rights arguments, in which plaintiffs make the case that climate change has threatened or taken away populations’ basic rights to shelter, health, food, water and even life. Lawyer Dr Roda Verheyen is representing ten families in a lawsuit against EU institutions, the People’s Climate Case. She will argue in the European General Court that the EU must adopt a more ambitious 2030 climate target to defend the families’ human rights, citing the science in the IPCC Report, and saying, “Climate change is already an issue for the courts in many European countries and around the world. The plaintiff families are putting their trust in the European Courts and legal system to protect their fundamental rights of life, health, occupation and property which are under threat of climate change.” In a letter to EU politicians, the plaintiffs said the IPCC had confirmed that only European emissions targets that hold warming below 1.5C were compatible with their “fundamental rights”. The signatories included Maurice Feschet, a lavender farmer in the south of France. Drought has affected his lavender harvest repeatedly, making it harder for his son to continue the family tradition, Mr Feschet saying,“It is very difficult to live now on this… we joined the ten other families to ask Europe to protect our way of life.” He added: “It is not for me I do it, it is for my children.”
This generational injustice is highlighted in one of the most high-profile of a rapidly growing list of international climate lawsuits, Juliana v US, in which 21 child and youth plaintiffs are taking the US federal government to court, alleging it is violating their rights to “life, liberty, and property” and is in breach of its obligation to “hold certain natural resources in trust for the people and for future generations”.
The case has faced huge resistance from the federal government, and the oil, coal and gas industries, and is still pingponging through the US legal system, but in a significant development in November 2016, Judge Ann Aiken of the US District Court in Eugene, Oregon, not only ruled that Juliana should go to a substantive hearing but recognised a key role for the judiciary in the fight to save the climate system from disaster, ruling that “This action is of a different order than the typical environmental case…It alleges that the defendant’s action and inactions … have so profoundly damaged the home planet that they threaten [the] plaintiffs’ fundamental constitutional rights to life and liberty.” Aiken said she had “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society … a stable climate system is quite literally the foundation of society, without which there would be neither civilisation nor progress”.
Some governments, faced with climate change lawsuits, have tried to argue that it is a matter for government and not the courts to set such targets (key arguments being adopted by the US government in Juliana), but the failure of the Dutch government’s appeal in the Urgenda case , demonstrates that such an argument will not always be successful. The Hague Court of Appeal affirmed the 2015 decision of The Hague district court that the Dutch State violated its duty of care by not taking enough action to lower its CO2 emissions by 25% in 2020. The Court of Appeal based the duty of care on the human rights provision of article 2 (the right to life) and article 8 (the right to family and private life) of the European Convention of Human Rights. It held that there was no violation of the separation of state powers because it was the duty of the judiciary to protect human rights which have direct effect in the Dutch legal order, such as articles 2 and 8 of the Convention, and the State had sufficient freedom in policy in choosing adequate measures to achieve the goal.
This separation of state powers argument was also debated in a New Zealand case brought by Waikato University student Sarah Thomson against the New Zealand government in which Ms Thomson sought a judicial review of the government’s decision not to reset emissions reduction goals after signing the global Paris Climate Agreement. In this case, Justice Mallon confirmed that the courts have a role to play considering matters of climate policy, and that it is not a “no go” area that must be left exclusively to the executive arm of government. Having considered the numerous international climate lawsuits, including the Urgenda case, Justice Mallon said these cases showed that it “may be appropriate for domestic courts to play a role in Government decision making about climate change policy…The courts have not considered the entire subject matter is a no go area…The courts have recognised the significance of the issue for the planet and its inhabitants and that those within the court’s jurisdiction are necessarily amongst all who are affected by inadequate efforts to respond to climate change.”
The inadequacy of current federal governmental efforts in Australia to respond to climate change has been made increasingly manifest in recent months, as has the public’s mounting desire to see action being taken, particularly amongst young people who, like the Juliana plaintiffs, are desperately worried about the future of the planet. The ABC reported last month that “Intensifying climate change protests 'could rival Vietnam War activism'” . The report quotes Greenpeace chief executive David Ritter as saying, "The divide between the Government and the young people of Australia is probably the greatest it's been since those huge protests of the Vietnam War era, and I think it's for a similar reason…Back then, 18 to 20-year-olds [facing conscription in the 1960s] felt their future was being callously taken away by a war they could see no justification or point for…The young people of Australia today can see the future being callously taken away to prop up the old fossil fuel industries that have to go if we are to have a flourishing future.”
Action on climate change is sorely needed, and fast, and there is clearly an increasing momentum from populations across the world to take matters into their own hands through climate change litigation against institutions for failing to act proportionately on emissions reductions. Here at Energy360, we are continuing to work on bioenergy systems as part of the solution to global warming and emissions reduction. Bioenergy is not only part of the solution to climate change, it presents a $3.5-5bn investment opportunity in Australia as highlighted in a recent report prepared by KPMG and released by Bioenergy Australia at the beginning of December 2018. Speaking at the launch of the report, former Liberal Party leader and bioenergy advocate, Dr John Hewson said, “An overlooked and very important consequence of the ‘climate wars’ in the last couple of decades has been the failure of governments to develop a comprehensive national waste and bioenergy strategy”.  Such failures to act prompt climate change protests and activism, but increasingly people are taking the next step and going to the courts to establish climate liability around the world.
 Climate Home News, 9 October 2018
 Rebecca Macfie, noted.co.nz, 18 August 2017
 Opinion and Order in the US District Court for the District of Oregon Eugene Division, 10 November 2016
 State lawyers had argued that the judges were ‘sidelining democracy’ by trying to force a policy change
 Rebecca Macfie, noted.co.nz, 2 November 2017
 Malcolm Sutton, ABC News, 18 December, 2018
 Bioenergy state of the nation report, November 2018
 Angela McDonald-Smith, Financial Review, 4 December 2018