The most high-profile lawsuits on climate change. Part I

    28 May 2021

    Let’s continue our review that we started in the previous article. Thanks to Eco Action NGO volunteers for their brilliant work.

    Case 4: Julian v. The US Federal Government

    The United States is the largest producer and consumer of oil and natural gas, has one of the largest parks of coal-fired power plants and is the second largest country in the world with the highest greenhouse gas emissions. To sum up anthropogenic CO2 emissions throughout history, the United States has produced more of them than any other country in the world. That is why their role in combating climate change is considered as prominent.

    In 2015, 21 young people and the plaintiff organization Earth Guardians filed a lawsuit against the United States government. In their complaint, they alleged that the government’s actions had caused climate change and thus deliberately violated the constitutional rights of the younger generation to life, liberty and property, and failed to protect key public trust resources by encouraging and allowing the burning of fossil fuel. The plaintiffs called on the government to propose “both a declaratory and an enforceable decision on their claim, namely, a statement on the federal government’s fiduciary* role in preserving the atmosphere and a ban on actions contrary to such a role.”

    * Fiduciary nature is one that is based on trust. The fiduciary role is the duty to act in the best interests of the country’s citizens. In this case, it is said that the federal government (fiduciary) would be obliged to act in the interests of citizens. The fiduciary is always required to act in good faith and dispassionately. The fiduciary must be honest and must not conduct business in a way that gives him unconditional benefits or harms the interests of citizens.

    This case has become an important example in the field of environmental law, which is called “atmospheric trust litigation”. It’s based on the doctrine of public trust and international responsibility for natural resources. All similar previous lawsuits have been dismissed by U.S. courts. But in 2016, Juliana’s case against the US government received a lot of attention when an Oregon District Court judge refused to dismiss it and ruled that access to a clean environment was a fundamental right. In 2020, the U.S. Court of Appeals for the Ninth District overturned the judge’s previous decision and closed the case on the grounds that the plaintiffs had no grounds to sue. But the plaintiffs’ lawyers have filed an appeal, so the case is ongoing.

    At the beginning of the case, the plaintiffs ranged in age from 8 to 19 years. They were represented in court by Our Children’s Trust and supported by climatologist James Hansen, who acted as “guardian of future generations” in the lawsuit. All young people were able to show the immediate damage caused by climate change: some homes were destroyed by extreme rainfall, rising sea levels or desertification.

    The case was filed against President Barack Obama and several US executive agencies. The plaintiffs demanded:

    ·        to confirm that the actions of governments violated their constitutional rights and the rights of “public trust”;

    ·        issuing a decision prohibiting defendants from continuing to violate their rights;

    ·        development of a plan to reduce carbon emissions.

    Among the plaintiffs ‘lawyers’ main arguments was the government’s lack of action to combat climate change, which in turn violates the rights of young people, as they are most affected by climate change and do not have the right to vote to influence government decisions.

    In the early stages of the case, three industrial groups involved in fossil fuel extraction acted as defendants on the side of the US government. Their main motive was to withdraw the lawsuit. After Donald Trump won the presidential election, in 2017 the new US president became the main defendant in the case, and representatives of industrial groups were expelled from the country thanks to the support of the new leadership. Since then, the plaintiffs have repeatedly applied to the court for a court order, having on hand already 30 thousand pages of the collected proofs.

    In 2020, judges of the United States Court of Appeals for the Ninth District voted two to one against the termination of the proceedings. The court argued that under Article III of the US Constitution, federal courts do not have jurisdiction to hear cases of compensation for damage caused by climate change. Instead, the court ruled that the appropriate subjects for such appeals were the executive or the legislature or the electorate as a whole. However, the court still accepted many of the plaintiffs’ arguments to deny the speed and scale of climate change – impossible; the case file convincingly demonstrates the long-standing awareness of the federal government about the risks associated with fossil fuel use and increased CO2 emissions; as a result of climate change, the plaintiffs received specific and personal damage; Sufficient evidence suggests that the country’s federal policy was an important factor in inflicting these injuries.

    In 2021, the plaintiffs are trying to re-file a lawsuit, narrowing their complaint and aiming to succeed in the new circumstances in the country and in the world. In April 2021, it became known that as part of a formal trial, the administration of President Joe Biden called on the district court to reject a new attempt by a group of young people to file a lawsuit against the US government. The administration argues that the new lawsuit, according to the court’s decision in 2020, will not have the same procedural basis as the previous one.

    Case 5: The Friends of the Environment of Ireland case against the Irish Government

    Despite its small population due to weak climate policy, Ireland is making a disproportionate contribution to Europe’s overall greenhouse gas emissions. The country has not met either national or European (EU) targets for reducing greenhouse gas emissions by 2020. Due to its inability to decarbonize sectors such as agriculture and road transport, the country has some of the worst per capita emissions from all EU member states.

    In July 2020, the Friends of the Irish Environment won a landmark lawsuit against its government. The organization accused the government of failing to take sufficient measures to address the climate and environmental crisis. As a result, the Supreme Court of Ireland ruled that the National Climate Change Mitigation Plan (hereinafter referred to as the National Plan) adopted by the Government in 2017 was inadequate and did not provide sufficient details on the mechanisms needed to reduce greenhouse gas emissions.

    Irish environmentalists have said in a lawsuit that the Irish government has an obligation to reduce greenhouse gas emissions over the next few years, otherwise the country will face the serious consequences of climate change. The organization noted that the possibility of increasing greenhouse gas emissions in the National Plan contradicts the Irish Government’s 2015 regulation on climate action and low-carbon development, the Irish Constitution and its obligations under the European Convention on Human Rights. According to the plaintiffs, the National Plan, on the one hand, aimed at the transition to a low-carbon economy by 2050, and on the other – was not aimed at achieving emission reductions in the short term and did not comply with current regulations and obligations. Ireland’s commitment to the protection of human rights.

    Friends of the environment have asked the court to overturn the government’s decision to approve the National Plan and, if necessary, to oblige it to prepare a new plan. The Court concluded that the organization was entitled to bring such an action on the basis of human rights arguments, but did not accept the Government’s allegations of a breach of the Irish Constitution and the European Convention on Human Rights, as the National Plan was “extremely important, but only puzzle ». Friends of the environment appealed the decision to the Court of Appeal and decided to go directly to the Supreme Court of Ireland.

    In 2020, the Supreme Court unanimously ruled that the government needs to specify how the climate goals approved in 2015 will be met by 2050. The decision was made on the basis that the competent and interested parties can make judgments about the realism of the document (National Plan) and comment on the proposed policies. However, the Supreme Court also ruled that the organization could not file such claims, citing inconsistency with the Constitution or the European Convention on Human Rights. The Court also found that the Friends of the Environment had not provided sufficiently convincing arguments to define the right to a healthy environment apart from the rights expressly enshrined in the Irish Constitution.

    The Friends of the Environment climate case against the Irish government is considered historic. This is the first thing, as a result and the consideration of which an Irish court has brought the government to justice for inaction in combating climate change. In 2021, the Irish government plans to approve an updated regulation on climate action and low-carbon development (to replace the 2015 resolution) and relevant action plans to implement it. These documents are expected to be more ambitious than the previous ones in terms of goals and will contain more specific commitments and policies for the country to achieve climate neutrality by the middle of this century.

    Case 6: Youth for climate justice against Ukraine and others

    In November 2020, The Guardian reported that the European Court of Human Rights had ordered 33 European governments, including the Government of Ukraine, to respond to a landmark lawsuit filed by six young activists from Portugal. The 27 EU Member States, as well as the United Kingdom, Norway, Russia, Turkey, Ukraine and Switzerland, were obliged to respond by 23 February 2021 to the plaintiffs’ complaints that the governments of these countries were moving too slowly towards reducing greenhouse gas emissions. which in turn exacerbates climate change.

    In response, the governments of the respondent countries asked the court to revoke the priority status of the case and to hear their arguments that would prove that such a case was inadmissible. The court instead completely rejected the government’s request.

    Portuguese plaintiffs, ages 8 to 21, allege that heat waves and forest fires violate their right to life and harm their physical and mental health. The reason for this, they call the inability of governments to significantly reduce greenhouse gas emissions. The plaintiffs allege in their complaint that the lack of effective action to combat climate change constitutes a violation by the countries of Articles 2 and 8 of the European Convention on Human Rights, which define the right to life, the right to private and family life. The complainants also allege that European governments discriminate against young people in violation of Article 14 of the Convention, as they will be much more affected by climate change than the older generation. They say that “there is no objective and reasonable justification for shifting the burden of combating climate change to the younger generation by applying inadequate precautions.”

    The 33 respondent countries now have until 27 May 2021 to respond to youth complaints. The case is still at an early stage and the court has not yet made any decision on its admissibility and merits. But it can be expected to pay close attention to governments’ commitments to reduce greenhouse gas emissions and their willingness to protect the rights of children and young people from the worst effects of climate change.

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