Siobhán Stack-Maddox, who is currently working on the implementation of Imperial College London’s Sustainability Strategy 2021-2026, considers what legal action involving states means in the context of net zero carbon pledges and commitments to reduce emissions.
As temperatures soar, wildfires burn and floods wreak devastation, communities across the globe are feeling the impacts of climate change more acutely than ever before. It is clear that things must change – is legal action the tool needed to make governments and big corporations step up?
In 2021 alone, legal cases have prevented the Australian government from going ahead with constructing a new coal mine and compelled Germany to bring forward its climate targets, while the fossil fuel giant Shell has been ordered to cut its global carbon emissions by 45% by 2030 compared to 2019 levels. Meanwhile, in the ‘case of the century’, the French state was convicted for failing to meet its climate commitments after a petition was signed by 2.3 million citizens.
Climate litigation cases involving the state are a relatively novel phenomenon, but these recent cases are not the first. The landmark Urgenda Foundation v. State of the Netherlands case in 2015 resulted in the Dutch Supreme Court mandating that the Dutch government must reduce greenhouse gas emissions by 25% from 1990 levels by the end of 2020. Three years later, the Future Generations v. Ministry of the Environment and Others case resulted in the Colombian government being ordered by the Supreme Court to implement protective measures to stop deforestation in the Amazon. The Grantham Research Institute, London School of Economic (LSE), has identified 37 of these ‘systemic mitigation’ cases worldwide, and last year the International Bar Association released a Model Statute, which suggests that more of these cases can be expected in future.
Outcomes and arguments
These cases seem symbolic and significant, but what can they actually achieve? A positive outcome would lead to more effective climate laws or policies being established, or damages being paid to individuals who are negatively impacted by ecological damage. The Urgenda case in the Netherlands led to the Dutch government proposing 54 additional measures to reduce greenhouse gas emissions, including phasing out coal power sooner than they had planned. So far, cases focusing on protecting human rights have been the most successful in compelling governments to act, and cases of this type have been brought before courts on every continent.
The French case cited human rights concerns that the population’s well-being was negatively impacted by ecological damage caused by past behaviour. The case also sought to influence future actions and policy by highlighting France’s Paris Agreement commitments. Under this legally binding international climate change agreement, 196 countries have pledged to limit global warming to well below 2°C, preferably to 1.5°C, compared to temperatures before the industrial revolution that began pumping greenhouse gases into the atmosphere. However, last year’s UNEP Emissions Gap Report showed that the climate is on track for 3 °C of warming, which scientists say would be catastrophic for life on Earth.
Countries that signed up to the Paris Agreement set targets for reducing their greenhouse gas emissions, known as Nationally Determined Contributions, or NDCs. These commitments have been central to several climate litigation cases, including recent ones brought by youth climate groups in Brazil and Germany. The ruling in favour of the German plaintiffs resulted in the government bringing forward the country’s net zero target from 2050 to 2045 and setting more ambitious interim targets.
Emissions reduction targets are not perfect, but given the gap between these pledges and current climate action, meeting them will still require significant policy changes and action. Additionally, as these cases show, because these targets are legally binding, they can be a powerful tool with which to hold governments and corporations to account and directly influence policy.
Looking beyond the 2050 deadlines central to most Paris Agreement commitments, the case brought by German youths emphasised the rights of future generations, which they stated were being violated by the government’s insufficient climate plans. The judges who ruled in their favour said it was unfair that the current lack of climate leadership would mean that future generations would have to reduce emissions very quickly. They emphasised that ‘virtually every freedom is potentially affected by these future emission reduction obligations because almost every area of human life is associated with the emission of greenhouse gases and is therefore threatened by drastic restrictions [on emissions] after 2030.’
Similarly, the #ChildrenVsClimateCrisis group of 16 young people, including the activist Greta Thunberg, has filed a legal complaint against the lack of climate action by five nations – Argentina, Brazil, France, Germany and Turkey – on the grounds that young people will suffer far more from the impacts of climate change. They are awaiting a decision from the UN Committee on the Rights of the Child in September 2021.
Beyond anthropocentric law
While the French ‘case of the century’ drew on the concept of préjudice écologique – which states that environmental damage which affects a ‘legitimate collective interest’ requires reparations in the same way as damage to a person or their goods – some emphasise the need for the law to go further. They argue that nature must be given an equal importance in its own right, rather than only in relation to human rights, transcending a human-centred worldview. The rights of nature have been asserted in several countries, notably those whose Indigenous populations ‘have challenged western concepts of owning and exploiting nature‘. Earlier this year, Canada joined this global movement by granting legal personhood to the Magpie River.
Recently, a group of lawyers published a definition of a new international ecocide law which makes environmental damage a criminal offence. For now, cases that focus on more familiar ideas of responsibility and impacts are perhaps more pragmatic and likely to achieve results, but if ecocide law is adopted by the International Criminal Court’s members, this would create significant opportunities for cases relating to issues such as deforestation and oil spills.
The future of climate activism?
The role of legal action in bringing about meaningful policy changes is perhaps even more relevant in the context of the immediate threat of the COVID-19 pandemic, which has slowed progress on climate action, and in the UK, the potential limitations on protest if the proposed Police, Crime, Sentencing and Courts Bill is implemented. Climate litigation can sometimes lead to more immediate, concrete outcomes than protest because cases lay out specific demands, as shown by some of the cases above. However, even if cases are successful, it can be a lengthy and costly process, particularly if there are appeals. For this reason, Joana Setzer of the Grantham Research Institute at London School of Economics emphasises that legal action must be one tool of many in the fight against climate change, rather than the only one.
Climate litigation cases highlight the fact that while individual actions are important, there is an obvious and urgent need for accountability and large scale, systemic change instigated by governments and corporations in order to tackle the climate crisis seriously. A large and captive global audience is watching closely to see if rulings are complied with and sufficient action is taken to meet Paris Agreement targets. Until then, climate litigation will continue to play a crucial role in establishing accountability and catalysing the green policymaking and investment needed for a just transition to a more sustainable future.
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