This week, it was reported that:[1]
A deluge of rain and wild weather could extinguish all remaining fires in New South Wales by the end of the week, the Rural Fire Service hopes.
Torrential rain over three days in the state, which has been ravaged by bushfires and endured a prolonged period of drought, has already extinguished one megablaze, with the Gospers Mountain fire that has burned for months in the Hawkesbury declared out on Monday. …
An RFS spokesman said that “all going well” it was likely those five fires would be out “in the next 48 hours”.
He said [that] there was optimism that all remaining fires in the state would remain at a contained status by the end of the week. It was possible all of them could be extinguished.
“It would be an absolute miracle. We hope so,” he said.
After the New South Wales bushfires, flooding, power outages and property damage, two questions will remain. Are we able to guarantee the fundamental rights of future generations? If so, what about those of the estimated eight billion people who are alive?
The scale of these challenges is great:[2]
Across the globe, the climate crisis is already having severe impacts on the health and welfare of all people. This crisis leaves no county and no person untouched. For those on the frontlines, the impacts are particularly severe. Access to food, water and sanitation, adequate housing, health, and decent work – all fundamental human rights – are being eroded. In many cases, lives are at risk. …
The world has never seen a threat to human rights, human health and human welfare like climate change. The economies of all nations; the institutional, political, social and cultural fabric of every State; and the rights of all people – and future generations – will be impacted. This crisis demands your urgent action.
Of the three branches of government – legislature, executive and judiciary – the role of the judiciary in tackling climate change may be the least analysed, understood, and, perhaps, most controversial. Accordingly, this article sheds light on to nine of the leading cases from around the world in which the judiciary have tackled climate change-related issues.
Climate change & the judiciary
What role has the judiciary played to prevent, prepare for and mitigate against the adverse effects of climate change? According to a UK Supreme Court Justice, President of the UK Environmental Law Association, and member of the editorial board of the Journal of Environmental Law:[3]
Judges have long had a central role in developing and enforcing effective laws for the protection of the environment and ensuring access to justice for its champions. The response of British judges to the problems created by the Industrial Revolution in the 19th century, using the tools of the domestic common law, has been mirrored in recent years by the responses of judges round the world to the environmental challenges of their own countries, using a range of legal mechanisms, derived from their varied constitutions or statutory codes.
Judiciaries in Europe, the United States and the Indian subcontinent have been amongst the most fearless in identifying, grappling with and ruling on the issues raised by climate change. They have exerted a real impact on the legal rights of citizens, as well as the duties of state and non-state actors. Last month, a court directed the state of which it is a part to reduce greenhouse gases by the end of 2020 by at least 25 percent compared to 1990.
Europe
Before turning to a recent case from the United Kingdom, it must be noted that, in June 2019, the Climate Change Act 2008 was amended. Section one now reads:
The target for 2050
(1) It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline.
(2) “The 1990 baseline” means the aggregate amount of—
(a) net UK emissions of carbon dioxide for that year, and
(b) net UK emissions of each of the other targeted greenhouse gases for the year that is the base year for that gas.
This is probably a world first. These Isles are likely to be the first major economy to enshrine such an ambitious climate change aspiration in primary legislation. Accordingly, the fact that you may not even have heard about this amendment shows that climate change is not politically contentious in the United Kingdom.
The question is: ‘How do we reach our target?’ One means to test whether a legal obligation has any bite is to bring a test case. So, how have the courts approached, analysed, and opined on climate change-related issues?
R (on the application of Spurrier) v Secretary of State for Transport (2019)
In R (on the application of Spurrier) v Secretary of State for Transport [2019] EWHC 1070 (Admin), [2019] JPL 1163, the High Court refused permission to bring four judicial review claims challenging the decision to designate a third runway at Heathrow, as opposed to designate a second runway at Gatwick. In a postscript, Hickinbottom LJ and Holgate J said:
“We understand that these claims involve underlying issues upon which the parties – and, indeed, many members of the public – hold strong and sincere views. There was a tendency for the substance of parties’ positions to take more of a centre stage than perhaps it should have done, in a hearing that was concerned only with the legality (and not the merits) of the [Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England].”
In a key paragraph, the High Court noted (with emphasis added) that this was essentially a test case, probing whether the court would grapple with the bigger principle of whether a substantial increase in airport capacity should be promoted:
“We should add that the grounds pursued by [Friends of the Earth Limited] and Plan B Earth, and Mr Spurrier, also raise the issue of standard of review. The former each raised several grounds of challenge relating to climate change, in particular alleged legal errors arising out of the Paris Agreement. These arguments are not directed at a choice between Heathrow or Gatwick or indeed other locations, but instead the principle of whether a substantial increase in airport capacity should be promoted. As we explain below, the Paris Agreement raises a policy issue for the Government and for Parliament to address, namely the future carbon reduction target for the UK as its contribution to the revised Paris Agreement target expressed solely in global terms. This is plainly a policy matter at a high strategic level, which engages the widest possible range of economic and social considerations in the UK. Most of Mr Spurrier’s submissions involve challenges to the merits of judgments reached by the Secretary of State, and were dependent on him establishing Wednesbury unreasonableness.”
The court declined the invitation. The ‘Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England’ was lawful.
An appeal is outstanding, however, so the High Court may not have had the last word.
Notre Affaire à Tous and Others v Total (2019)
If this action is not dismissed, it will be the first French climate change litigation against a fossil fuel company. The claimant’s formal letter to the defendant states that a court order is sought requiring the defendant to issue a corporate strategy complying with two criteria.
First, identifying the risks from emissions consequent upon the goods and services that Total produces, and the associated risks of serious climate change. Secondly, undertaking action to ensure that the company’s activities are compatible with the Paris Agreement.
The legal basis is the Commercial Code, prescribing that companies must establish, effectively implement and publish a ‘plan of vigilance’ that includes:
… reasonable vigilance measures to allow for risk identification and for the prevention of severe violations of human rights and fundamental freedoms, serious bodily injury or environmental damage or health risks resulting directly or indirectly from the operations of the company and of the companies it controls … as well as from the operations of the subcontractors or suppliers with whom it maintains an established commercial relationship, when such operations derive from this relationship.
Urgenda Foundation v State of the Netherlands (2020)
This case is unique. It will have ramifications across the international legal landscape. In particular, lawyers within the 47 member states of the Council of Europe will be able to see how the reasoning in this case, by analogy, can be deployed within their jurisdictions.
In the Netherlands, a recent decision of the Supreme Court was handed down on whether the Dutch state is obliged, by the end of 2020, to reduce the emission of greenhouse gases originating from Dutch soil by at least 25 percent compared to 1990, and whether the courts can order the state to do so.
The court held that the “risk of dangerous climate change is global in nature” and the United Nations Framework Convention on Climate Change “is based on the premise that all member countries must take measures to prevent climate change”. Accordingly:
“Each country is thus responsible for its own share. That means that a country cannot escape its own share of the responsibility to take measures by arguing that compared to the rest of the world, its own emissions are relatively limited in scope and that a reduction of its own emissions would have very little impact on a global scale. The State is therefore obliged to reduce greenhouse gas emissions from its territory in proportion to its share of the responsibility. This obligation of the State to do ‘its part’ is based on Articles 2 and 8 ECHR, because there is a grave risk that dangerous climate change will occur that will endanger the lives and welfare of many people in the Netherlands.”
The court expressed its conclusion succinctly:
“In short, the essence of the Supreme Court’s judgment is that the order which the District Court issued to the State and which was confirmed by the Court of Appeal, directing the State to reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990, will be allowed to stand. Pursuant to Articles 2 and 8 ECHR, the Court of Appeal can and may conclude that the State is obliged to achieve that reduction, due to the risk of dangerous climate change that could have a severe impact on the lives and welfare of the residents of the Netherlands.”
The impact of this judgment is hard to overstate. The Supreme Court acknowledged that: “In the Dutch system of government, the decision-making on greenhouse gas emissions belongs to the government and parliament.”
Nevertheless, the court went on to reason that: “The Dutch Constitution requires the Dutch courts to apply the provisions of [the ECHR], and they must do so in accordance with the ECtHR’s interpretation of these provisions.” As such, the Supreme Court was mandated “to offer legal protection” against the government “to protect the residents of the Netherlands from dangerous climate change”.
United States of America
The US Climate Change Litigation database is the gateway to US climate change case law. At the time of writing, 1,157 cases were included, with links to 5,613 case documents.
This includes the following cases: 750 federal statutory; 74 constitutional; 334 state law; 21 common law; 24 public trust; 37 securities and financial regulation; one trade agreement; 84 adaption; 44 climate change protesters and scientists. The largest sub-category of claim are federal statutory claims under the Clean Air Act. There are 196.
Unsurprisingly, the US has the greatest amount of documented “climate change litigation”. Three cases provide an indication of the issues, attitudes of the judiciary and outcomes of climate change litigation over the last decade and a half.
Massachusetts v Environmental Protection Agency (2007)
The starting point for considering US climate change litigation is the Supreme Court case of Massachusetts v Environmental Protection Agency et al 549 US 497 (2007).
The relevant facts can be stated shortly. A group of private organisations petitioned the Environmental Protection Agency (“EPA”) to begin regulating the emissions of four greenhouse gases.
The EPA refused for two reasons. First, it was alleged that the EPA was not authorised to issue mandatory regulations to address global climate change. Secondly, it was alleged that it would be unwise to do so, as a causal link between greenhouse gases and the increase in global surface air temperatures was not unequivocally established.
It was held that the EPA does have authority to regulate the emission of such gases. Further, the EPA could not avoid its obligation by noting the uncertainty surrounding various features of climate change, and therefore concluding that it would be better not to regulate.
This judgment is all the more powerful given the significant role that the EPA has played in reducing emissions:[4]
‘[S]ince the 1970s, when the Environmental Protection Agency was established, the United States has slashed its emissions of five air pollutants by almost two-thirds. Over the same period, the population grew by more than 40 percent, and those people drove twice as many miles and became two and a half times richer.’
American Electric Power v Connecticut (2011)
In American Electric Power Co Inc et al v Connecticut et al 564 US 410 (2011), the US Supreme Court rejected the complainants’ case that federal common law public nuisance claims could be brought against carbon-dioxide emitters, including four private power companies. Accordingly, the relief sought was also refused, namely, a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be reduced annually.
The reasoning was as follows:
“It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”
Juliana v United States of America (2020)
In Kelsey Cascadia Rose Juliana et al v United States of America et al (Case No. 6:15-cv-01517TC, 2020), the complainants: alleged climate change-related injuries caused by the federal government continuing to permit, authorise and subsidise fossil fuel; complained that the government violated the youngest generation’s constitutional right to life, liberty and property; and sought declaratory relief and an injunction ordering the government to implement a plan to phase out fossil fuel emissions, and to draw down excess atmospheric carbon dioxide.
The US Government tried to have the case dismissed. Magistrate Judge Thomas Coffin refused to dismiss the case. On 10 November 2016, this was upheld by District Judge Ann Aiken, who opined that:
“This action is of a different order than the typical environmental case. It alleges that defendants’ actions and inactions – whether or not they violate any specific statutory duty – have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”
There is a prolonged procedural history, concluding on 17 January 2020, when the US Court of Appeals for the Ninth Circuit reversed the decision of the District Judge on the ground that the complainants lacked standing. Nevertheless, the summary reflects the appeal court’s attitude towards climate change:
[T]he record left little basis for denying that climate change was occurring at an increasingly rapid pace; copious expert evidence established that the unprecedented rise in atmospheric carbon dioxide levels stemmed from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked; the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction.
Indian subcontinent
Asghar Leghari v Federation of Pakistan (2015)
In Asghar Leghari v Federation of Pakistan etc WP No 225501/2015 (2015) (“Asghar”), the claimant sued the government of Pakistan for failure to carry out the National Climate Change Policy 2012 and the Framework for Implementation of Climate Change Policy (2014-2030). In absence of any strategy to implement policies, the claimant feared that he would not be able to sustain his livelihood as a farmer.
The legal complaint was that the claimant’s fundamental rights under the constitution were offended, as well as the constitutional principles of social and economic justice, and international environmental principles, including the doctrine of public trust, sustainable development, the precautionary principle and inter-generational equity.
Chief Justice Mansoor Ali Shah opined that:
“Notwithstanding the fact that Pakistan’s contribution to global greenhouse gas emissions is very small, its role as a responsible member of the global community in combating climate change has been highlighted by giving due importance to mitigation efforts in sectors such as energy, forestry, transport, industries, urban planning, agriculture and livestock.”
This chimes with the recent decision of the Dutch Supreme Court. The Chief Justice said that:
“Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court.”
The Chief Justice continued his analysis by considering the related, but separate and distinct concepts of “environmental justice” and “climate justice” as follows (with emphasis added):
“On a jurisprudential plane, a judge today must be conscious and alive to the beauty and magnificence of nature, the interconnectedness of life systems on this planet and the interdependence of ecosystems. From Environmental Justice, which was largely localized and limited to our own ecosystems and biodiversity, we have moved on to Climate Justice. … The environmental issues brought to our courts were local geographical issues, be it air pollution, urban planning, water scarcity, deforestation or noise pollution. Being a local issue, evolution of environmental justice over these years revolved around the national and provincial environmental laws, fundamental rights and principles of international environmental laws. …
Enter Climate Change. With this the construct of Environmental Justice requires reconsideration. Climate Justice links human rights and development to achieve a human-centered approach, safeguarding the rights of the most vulnerable people and sharing the burdens and benefits of climate change and its impacts equitably and fairly. Climate justice is informed by science, responds to science and acknowledges the need for equitable stewardship of the world’s resources. The instant case adds a new dimension to the rich jurisprudence on environmental justice in our country. Climate Change has moved the debate from a linear local environmental issue to a more complex global problem. In this context of climate change, the identity of the polluter is not clearly ascertainable and by and large falls outside the national jurisdiction. …
Climate Justice, therefore, moves beyond the construct of environmental justice. It has to embrace multiple new dimensions like Health Security, Food Security, Energy Security, Water Security, Human Displacement, Human Trafficking and Disasters Management within its fold. Climate Justice covers agriculture, health, food, building approvals, industrial licenses, technology, infrastructural work, human resource, human and climate trafficking, disaster preparedness, health, etc.”
The claim was allowed.
Ridhima Pandey v Union of India & Central Pollution Control Board (2017)
As in Asghar, the petitioner in Ridhima Pandey v Union of India & Central Pollution Control Board (Application No 187/2017, 2017): invoked the principle of sustainable development, the precautionary principle, the inter-generational equity principle and public truth doctrine; and raised the issue of non-implementation of various acts, relating to conservation, prevention and control of pollution and environmental protection, leading to adverse climate change across the country.
The applicant was nine years old at the time of his application, directly affected by adverse climate change and rising global temperatures, and within a class of people who were not part of the decision-making process. He sought the intervention of the National Green Tribunal at Principal Bench, New Delhi (“the Tribunal”) to take effective, science-based action to reduce and to minimise the adverse impacts of climate change in India.
The petitioner identified the following facts:
[In] 2015, India emitted 7% of the total global CO2 emissions (2.3 billion tons), making it the third most climate polluting country in the world. …
India is one of the most vulnerable countries to adverse climate change impacts, and the people of India are already experiencing adverse climate change impacts across the country. These include rising sea levels, extreme weather events, and adverse impacts due to rising temperatures.
It was alleged that the Union of India recognised that anthropogenic climate change would likely have adverse impacts on India’s precipitation patterns, ecosystems, agricultural potential, forests, water resources, coastal and marine resources, in addition to an increase in the range of several disease vectors. It was also accepted that large-scale resources would clearly be required for adaptation measures to climate change, if catastrophic human misery was to be avoided.
In January 2019, a two-page order disposed of the petition in these terms:
“[We] do not consider it necessary to issue any direction … There is no reason to presume that [the] Paris Agreement and other international protocols are not reflected in the policies of the Government of India or are not taken into consideration in granting environment clearances.”
Swaraj Abiyan v Union of India & Ors (2015)
In Swaraj Abiyan v Union of India & Ors (Writ Petition (Civil) No 857 of 2015), the Supreme Court of India set out the facts in the first paragraph:
“[L]ack of Will is amply demonstrated in this public interest litigation under Article 32 of the Constitution, in which the States of Bihar, Gujarat and Haryana are hesitant to even acknowledge, let alone address, a possible drought-like situation or a drought by not disclosing full facts about the prevailing conditions in these States. A candid admission does not imply a loss of face or invite imputations of ineffective governance – it is an acknowledgement of reality. An ostrich-like attitude is a pity, particularly since the persons affected by a possible drought-like situation usually belong to the most vulnerable sections of society. The sound of silence coming from these States subjects the vulnerable to further distress. During the hearing of this public interest petition, no one alleged a lack of effective governance, only the lack of an effective response and therefore we are at a loss to understand the hesitation of these States. Ironically, towards the fag end of the hearing, Gujarat finally admitted the existence of a drought in five districts – a fact that could have been admitted much earlier. But at least, it is better late than never. However, Bihar and Haryana continue to be in denial mode.”
If the writing was not on the already on the wall, the outcome was obvious from the next paragraph:
“The failure of these States to declare a drought (if indeed that is necessary) effectively deprives the weak in the State the assistance that they need to live a life of dignity as guaranteed under Article 21 of the Constitution.”
The petitioner sought a direction from the court so as to oblige three states to declare a drought, provide essential relief and compensation to those affected.
The Supreme Court immediately distinguished “public interest litigation” from “no-holds barred adversarial litigation.” The court “made it very clear” that “we were treating the writ petition as one filed in the public interest.”
Authority from the same court was cited from 1998, in which it was held that “public interest litigation is intended to prevent the violation of rights of those segments of society that cannot assert their rights owing to poverty, ignorance or other disadvantages.”
Then, the Supreme Court recognised that public interest litigation had the potential to be controversial, however, the court would not shirk its responsibility:
“To be sure, judicial activism is not an uncomplimentary or uncharitable epithet to describe the end result of public interest litigation. Those who benefit from judicial activism shower praise and those who are at the receiving end criticize it. C’est la vie!”
The court set out its discussion and conclusions in the following terms:
“The adverse or negative impact of a delayed declaration of drought affects the common person, particularly women and children, and postpones the assistance that is needed. It also puts an undue strain on the resources of the State Government and the Government of India. All in all, a delayed declaration is of no assistance to anybody whatsoever …
It is clear from the above chart that it was known in October 2015 that several districts in these three States are facing varying degrees of drought. Yet, no preparatory steps appear to have been taken to tackle a possible disaster. The information provided is from reputed agencies of the Government of India and there is no reason for any of the States to have ignored it. It is this ostrich-like attitude of these State Governments that compels us to make some comment about their concern.”
Accordingly, the Supreme Court made eight directions.
First, the Union of India constitute a National Disaster Response Force within a period of six months with an appropriate and regular cadre strength. Secondly, the Union of India establish a National Disaster Mitigation Fund within a period of three months.
Thirdly, the Union of India formulate a National Plan relating to risk assessment, risk management and crisis management in respect of a disaster at the very earliest opportunity and with immediate concern. Fourthly, the Drought Management Manual be revised and updated on or before the end of 2016, referencing four factors that “the Union of India should take into consideration”. Fifthly:
“In the proposed revised and updated Manual as well as in the National Plan, the Union of India must provide for the future in terms of prevention, preparedness and mitigation. Innovative methods of water conservation, saving and utilization (including ground water) should be seriously considered and the experts in the field should be associated in the exercise.”
Sixthly, the “Government of India must insist on the use of modern technology to make an early determination of a drought or a drought-like situation.” Seventhly:
“The Secretary in the Department of Agriculture, Cooperation and Farmers Welfare, Ministry of Agriculture in the Government of India is directed to urgently hold a meeting within a week with the Chief Secretary of Bihar, Gujarat and Haryana to review the apparent drought situation with all the available data and if so advised persuade the State Government to declare a drought in whichever district, taluka, tehsil or block is necessary.”
Eighthly:
“Humanitarian factors such as migrations from affected areas, suicides, extreme distress, the plight of women and children are some of the factors that ought to be kept in mind by State Governments in matters pertaining to drought and the Government of India in updating and revising the Manual.”
This case demonstrates that the judiciary – as opposed to the executive – in India were leading the charge to prepare for, engage with and mitigate the adverse effects that extreme weather has, especially on the most vulnerable in society, and to ensure that the state provides the assistance necessary to live a life of dignity.
Conclusions: COP 26 & the opportunities for the UK
The Dutch Supreme Court, Lahore High Court in Pakistan and Supreme Court in India have not shied away from engaging with climate change-related issues. All three have ordered the state to act. This demonstrates that the judiciary are playing an active role in tackling the challenges of climate change around the world.
The High Court in England and Wales, French advocates and the US courts, on the other hand, appear to prefer to deal with climate change-related issues using the traditional language of judicial review, standing and statutory interpretation. A higher degree of deference to the executive and legislative branches of state can also be perceived by the English and Welsh and US courts.
In any event, comparative exercises have the potential to assist both lawyers making submissions, and the judiciary who they appear before, to identify, discuss and resolve the legal issues presented to them, under the umbrella of adverse climate change.
The UN Climate Change Conference is scheduled to take place in November. The UK will play host. This provides three opportunities.[5]
First, to showcase the target enshrined in primary legislation, guaranteeing that the net UK carbon account for the year 2050 is at least 100 percent lower than the 1990 baseline. Secondly, to present as a template for other member states of the international community. Thirdly, to learn from judiciaries around the world, insofar as they identify, discuss and resolve cases that involve climate change-related issues.
Dominic Bright
Lamb Chambers
10 February 2020
[1] ‘Rain deluge in eastern Australia set to extinguish NSW bushfires this week’ The Guardian (10 February 2020).
[2] Open-Letter from the United Nations High Commissioner for Human Rights to Member States on priorities for human rights-based climate action at the 25th Conference of the Parties to the United Nations Framework Convention on Climate Change, United Nations High Commissioner for Human Rights (27 November 2019).
[3] ‘Judges and the Common Laws of the Environment–at Home and Abroad’ (2014) 26 Journal of Environmental Law 177, 177.
[4] Steven Pinker, ‘Enlightenment Now: The Case for Reason, Science, Humanism and Progress’ (Penguin Books, Great Britain, 2018) 129.
[5] Introductory remarks by Lord Carnwath CVO, ‘Climate Change Litigation: Comparative and International Perspectives’, British Institute of International and Comparative Law (16 January 2020).