Going to court to protect human rights is becoming an important tool in the fight against climate change. Courtrooms around the world have become one of the front lines for those seeking to limit the scale of the climate crisis. The main reason for the lawsuits is the inaction or too weak policy of most governments to address this global problem. In the following article Ecoaction NGO volunteers describe the most high-profile lawsuits on climate change in the last decade.
The United Nations recently published a Global Report (pdf) on climate change litigation in 2020. The report notes that in 2017, 884 cases were registered in 24 countries, and in 2020 the number of cases almost doubled: to 1,550 in 38 countries. This wave is causing extremely important changes in the world
Cases in which climate change is seen as one of the main problems mean, in particular, expanding the range of those who can represent the interests of future generations in court. The court’s decision can also set a precedent for other courts around the world to follow. With each new case, judges learn from each other in different jurisdictions (for example, internationally and nationally). Due to the lack of adequate climate action in other contexts, courts act as “rulemakers” who may require the implementation of their decisions.
Climate litigation is forcing governments and businesses to set more ambitious goals for climate change mitigation and adaptation. Some disputes also force better disclosure of climate information and stop “corporate greenwashing”.
But how exactly do citizens and NGOs prosecute their governments? What are the arguments of the courts when making their decisions in climate matters?
Case 1: Urgenda v. Government of the Netherlands
Lets’ start from the Hague, The Netherlands. The country faces a combined threat of climate change and subsidence. Sea level is rising; extreme rainfall occurs twice as often as 50 years ago; almost a third of the territory of the Netherlands lies below sea level. At the same time, large areas are constantly falling (subsidence) due to the application of many centuries of practice of salt water drainage and reclamation.
In 2013, the Dutch environmental group, the Urgenda Foundation, and almost 900 Dutch citizens sued their government, demanding more efforts to prevent global climate change. The plaintiffs argued that their government was exposing them to “unacceptable danger” by setting an insufficient target of reducing greenhouse gas emissions by 14-17% by 2020 compared to 1990.
As a result of many years of hearings and appeals, in 2019 the Supreme Court of the Netherlands ruled that the country’s government should reduce greenhouse gas emissions by at least 25% in 2020 compared to 1990. The New York Times called the court ruling “the strongest court ruling in history.” According to preliminary statistics, the Netherlands has almost succeeded in enforcing the court decision: emissions in 2020 were 24.5% lower than in 1990.
Back in 2015, in the case of this case, the court of first instance ruled that the state violated the “standard of proper care” for its citizens and must ensure sufficient reduction of greenhouse gas emissions. The court did not specify how the government was to fulfill its obligations, but suggested several possible solutions, including greenhouse gas emissions trading and tax measures.
In its judgment in the case, the District Court of The Hague cited, in particular: Article 21 of the Constitution of the Netherlands, which defines the authorities responsible for keeping a country viable, protecting and improving the environment; EU targets for reducing greenhouse gas emissions; principles enshrined in the European Convention on Human Rights; the principle of international law “no harm”; the doctrine of hazardous negligence; the principle of justice, the precautionary principle and the principle of sustainability, embodied in the UN Framework Convention on Climate Change; the principle of a high level of protection, the precautionary principle and the precautionary principle embodied in European climate policy.
A few years later, in 2019, the Supreme Court of the Netherlands upheld previous court decisions and reached three main conclusions:
* the European Convention on Human Rights obliges us to take the necessary measures to prevent climate change;
* these measures should reduce greenhouse gas emissions by at least 25% in 2020 from 1990 levels;
* despite the relatively small impact of the Netherlands on climate change, the country is still committed to reducing emissions.
In its ruling, the Supreme Court noted that the international and scientific communities have reached a consensus that developed countries urgently need to reduce greenhouse gas emissions by at least 25% by 2020. The Dutch government did not explain why the reduction was lower that justified.
The final verdict of the Dutch court (District, Court of Appeal, and then the Supreme Court) was the first in the world to decide to limit emissions to the state for reasons other than the obligations already established by law. The court documents in the Urgenda case contain important substantiations on which the case law in such cases will be based.
The Urgenda case has demonstrated how a court can determine the responsibilities of an individual state, despite the fact that climate change is caused by a large number of other actors who are responsible for their harmful actions. As a result, litigation has begun around the world to establish the legal responsibility of those who contribute to climate change.
Case 2: Ioani Teitiota v. New Zealand
Let’s talk about South Tarawa, Kiribati, a thin strip of land between the lagoon and the ocean. The Republic of Kiribati is an island nation located on 33 Pacific islands and has about 100,000 inhabitants. Scientists believe that during the 21st century, these islands may become uninhabitable due to rising ocean levels due to climate change. Photo source: Kiribati government
From 2012 to 2015, Ioane Teitiota, a Kiribati native and New Zealand resident, sued in numerous courts to avoid being deported. Teithiota argued that returning to a country threatened by rising ocean levels and other negative effects of climate change was a risk to his life.
After the New Zealand Supreme Court rejected Teithiota’s application for asylum as a refugee affected by climate change in 2015, he referred his case to the UN Human Rights Committee. In 2015, Teithiota and his family were deported to Kiribati. The UN Committee later also rejected Teitiotti’s motion on the grounds that he was not in imminent danger.
At the same time, in 2020, the UN Human Rights Committee made a historic decision that countries cannot deport people who face climate risks that violate their right to life. The Committee stated that “given that the immersion of an entire country under water is an extremely extreme risk, living conditions in such a country may become incomparable with the right to a dignified life before this risk is realized.”
Ioani Teitiota lost his case because his claim was found to be insufficiently convincing based on the specific circumstances and evidence of the case. However, on the basis of this case, the UN Committee made an important statement on the responsibility of states for displaced persons due to climate change. The UN recognizes that the effects of climate change will intensify in the future, so governments cannot repatriate people at risk. This conclusion may be important in the future, as at some point countries may have an obligation to accept climate refugees.
Case 3: Climate activists against the German government
Climate protest in Nuremberg, Germany, September 20, 2020. According to Climate Action Tracker, Germany’s official targets for reducing greenhouse gas emissions by 2030, as well as its intention to phase out coal use in energy by 2038, remain “critically insufficient” to meet the Paris Climate Agreement.
In 2020, nine young activists, with the support of Friends of the Earth Germany (BUND), Germanwatch, Greenpeace and Fridays for Future, filed a lawsuit against the German government. They criticized the Climate Change Resolution approved by the government in 2019 to reduce greenhouse gas emissions by 2030. Climate activists have argued that the regulation “violates their right to a humane future” and does little to reduce emissions and limit global temperature rises to 1.5 ° C under the Paris Climate Agreement.
On April 29, 2021, the Federal Constitutional Court of Germany declared the federal resolution “On Climate Change” partially unconstitutional and decided to strengthen the protection of fundamental rights of young people. By this decision, the Court established a new standard of climate protection as a human right of significant global significance. A German court has recognized the extreme climate crisis and provided an interpretation of fundamental rights under the Constitution as being fair to present and future generations. The court also ordered the German government to set clear targets for reducing greenhouse gas emissions after 2030.
Legal experts note that such a court decision was unexpected and unprecedented for Germany and will have far-reaching consequences. To date, there has been no successful action in German case law on climate protection.
The Court’s ruling states that in order to achieve the goal of the Paris Agreement, climate goals after 2030 should be achieved faster. “These future emission reduction commitments have a practical impact
for every kind of freedom, because almost all aspects of human life are still associated with greenhouse gas emissions. Thus, [these aspects of life] are potentially at risk of severe restrictions after 2030. ” The Court notes that the legislature should take precautionary measures to mitigate these serious consequences and protect fundamental freedoms.
According to experts, if climate change mitigation and corresponding emission reductions are not distributed fairly over the next 30 years, it could disproportionately affect the fundamental rights of future generations. The Constitutional Court acknowledged this and signaled to the German government that climate debts should not be postponed.
As early as May 5, just a week after the court ruling, the Federal Government announced its readiness to strengthen the country’s climate commitments: to achieve climate neutrality by 2045 instead of 2050 and to reduce emissions by 65% by 2030 compared to 1990.
Let’s check the next three high-profile lawsuits in the second article.
