Climate Change Litigation – How lawyers and you could help save our planet

Intro

With all the modern conveniences created by industrial and technological innovation, humans continually ignore the natural resources which enable the progression of technology.

As cities become more industrialized and energy consumption increases, so, too, do the problems with our environment quality. While most of us may be oblivious or unaware – still others simply do not care–  the reality is temperatures are rising and Earth’s climate is rapidly changing rapidly. Carbon dioxide (CO2) levels in the air are at their highest in 650,000 years. Eighteen of the 19 warmest years on record have occurred since 2001, and the Arctic summer sea ice shrank to its lowest size on record in 2012.

Public international law has been aware of this emergency for decades. In fact, to address the constant warming of our planet, in 1992 the United Nations (UN) established the United Nations Framework Convention on Climate Change (UNFCC). It later extended its scope in 2005 through the Kyoto Protocol, which commits signatories of said Protocols to reducing greenhouse gas emissions.

The planet, however, kept warming, and the United Nations decided to again call for another global action focused on effective commitments towards serious reduction of greenhouse gas emissions.

The attempt to reach an agreement in Paris was therefore initiated in December 2015, wherein nations from all over the world convened to discuss how to fight climate change and how to adjust with its inevitable effects. An agreement was reached on the 4th of November 2016 known as the Paris Agreement.

While the Paris Agreement and other measures are a welcome development in leading a proactive stance against climate change, the fact remains that these actions are far from being sufficient in order to combat and face a problem of transcendental magnitude.

For instance, one of the aims sought to be achieved by the Paris Agreement is to keep the increase of the temperature of global warming to below two degrees celsius and to aspire to limit the increase of temperature to only 1.5 degrees celsius.  The Agreement also calls for the so-called 20/20/20 targets – reduce gas emissions by 20 percent; increase energy efficiency thereby saving up to 20 percent from the consumption of energy; and increase renewable shares on the basis of 20 percent of the world’s consumption.

The Agreement provides for hefty goals and without action on everyone’s part. As such, the Agreement will only be as good as it will be on paper, the results never seeing the light of day and the goals remain just that – goals.

Bear in mind that the continuous warming of our home at highly alarming rate levels is a telltale sign of the pending demise of the human race. For one, more droughts and heat waves will befall the citizens of the world. Hurricanes and typhoons will also become more intense, frequent, and stronger. And sea levels will rise considering ice caps are melting at a terrifying rate. Case in point, the rate of the decline of the  ice extent of the Arctic Sea for the years 1979 to 2019 (40 years) is 38,800 square kilometers per year of 2.64 percent per decade.

If we do not act effectively and industriously, we may soon find ourselves facing an inevitable end.

Considering this, it becomes imperative for us to imbibe the so-called Precautionary Principle in our daily actions and decisions. Accordingly, when threats of serious and irreversible damage to the environment due to human activities arise, although such damage may not be certain but is nevertheless scientifically possible, efforts must be made to avoid or lessen such damage. This principle lends credence to the truism that it is “better safe than sorry” in adopting a preventive, as opposed to a reactive, approach.

Human Rights related to Global Climate Change

We must bear in mind that the issue on climate change touches upon several basic human rights not only enshrined in our civil laws and legislations but rooted in natural law itself. These rights include the basic right to life, right to healthful ecology, right to security, right to safe and adequate food, and right to safe and accessible water sources, among others.

In an effort to curb the negative effects of climate change and to protect the basic human rights of people, a group of experts including those in environmental law, international law, and human rights law, has adopted the Oslo Principles on Global Obligations to Reduce Climate Change (“Oslo Principles”). Under the principles, a national government is deemed to violate its legal duties to its people if it acts in a way in which great and irreparable harm and injury threatens the environment.

Meanwhile, governments argue that they are not bound by any obligation with respect to the prevention of harm or threats of harm to the government in the absence of specific treaties or convention binding them.

It is for this reason that the Oslo Principles contain the benchmarks and theories which will help the Courts of each jurisdiction to determine whether particular governments are compliant with their obligation to address the problems on climate or whether they are remiss in their duties.

Governments can no longer feign ignorance of their duties insofar as several pieces of legislation and even the Constitution of certain countries embody the responsibility of the state to protect the rights of its people.

For instance, in Europe, there are several legally binding laws protecting the rights of the people against threats such as climate change. The European Convention on Human Rights provides that the right to life shall be protected by law. Similarly, Article 2 of the European Charter of Fundamental Human Rights provides that everyone has the right to life. Needless to say, the protection of the right to life is inextricably linked with the fight against climate change. For indeed, there can be no life to protect if climate change on earth, brought about by our actions, has already killed us all. The states are, therefore, mandated to do all means necessary to fulfill their obligations to the people. Fighting climate change and curbing its effects must definitely be on their agenda.

In fact, the Treaty on the Functioning of the European Union (“TFEU”) specifically provides for the duty of European states to the environment. Article 191 mandates that the Union’s policy on the environment shall contribute to the pursuit of the following objectives:

1. preserving, protecting and improving the quality of the environment;
2. protecting human health;
3. prudent and rational utilisation of natural resources; and
4. promoting measures at an international level to deal with regional or worldwide

environmental problems, and in particular combating climate change.

The TFEU further provides that the policy must be based on the Precautionary Principle and on the principle that environmental damage should – as a priority – be rectified at source and that the polluter should pay. From these legislations alone, it becomes clear that is incumbent upon governments to ensure that damage to the environment be promptly rectified and to make liable the persons or corporations causing the damage.

Meanwhile, the United States of America (USA) is also not without its set of legislation in relation to the environment. Its Constitution specifically provides that it intends to “secure the Blessings of Liberty to ourselves and our Posterity.” Indeed, there can be no posterity if the Earth can no longer give life to its inhabitants. Furthermore, applying the Public Trust Doctrine, it is imperative for the government of the USA, especially since it is a nation founded on democracy, to hold the country’s resources, including its environment, in trust and for the benefit of its constituents. To continue turning a blind eye on the catastrophe waiting to happen is to betray that very trust which constitutes the nation.

On the other side of the world, China has recently passed two environmental laws in 2018 aimed to curb pollution in China and mandating government officials to become legally responsible for addressing pollution, specifically water pollution, and ecological restoration. Dubbed as a system of “green taxation”, the Environmental Protection Tax Law of China imposes tax on industrial pollutants as a penalty and the proceeds of which shall be used for the restoration of the environment. Meanwhile, the revised Water Pollution Prevention and Control Law of China enjoins government officials to take a proactive approach in addressing water pollution by legally obligating them to oversee programs and efforts to protect the country’s water resources. Clearly from these two legislations it is not hard to see that the government, indeed, has a duty, and actually has the power to impose such duties, to protect the environment in an ultimate goal of combating climate change.

It is unfortunate that we have reached this certain degree of damage in the environment before the government is compelled to enact measures to minimize environmental harm. In fact, it is because of the inaction of the government in preventing carbon dioxide emissions, among other pollutants, which lead us to the current state of our environment.

Opportunist corporations took advantage of these inactions and it is us, the people, who are now suffering from the adverse effects of such circumstances. It is thus incumbent upon us to become more proactive in insisting and fighting for our rights and to lobby the government for action.

What is Climate Change Legal Action 

All that said, we come now to the questions: what can we do and how can we help fight climate change. Different courses of action are available depending on the jurisdiction where you are in. Nevertheless, the following are the nature of actions, whether against corporations or the government, which may be availed of interested citizens:

1. Actions on the basis of violation of constitutional and human rights.
2. Administrative actions against government officials for violation of their duty to conserve and protect the environment.
3. Oppositions on the applications of violative corporations for government permits and licenses pertaining to the environment such as permits for cutting timbers and mining.
4. Private claims and actions against private corporations or individuals for the abatement of public and/or private nuisance, damages for negligence, prosecution for trespass, and suit for unjust enrichment, among others.
5. Actions for violations of Company law such as failure to disclose environmental risks and organizing shareholder activism actions to cause a change in the policies of the corporation on the environment and climate change.
6. Actions against corporations for perpetration of fraud and violation of consumer protection when companies misrepresent their businesses to customers and/or investors with regard to activities which pose harm to the environment such as the impact of fossil fuel products, among others.

Of course, these actions are not novel. In fact, various cases on environmental protection have already been filed all over the world with some already concluded while others are still pending. The following are some of the notable ones:

Climate Case of Urgenda

Together with almost 900 Dutch citizens, the Urgenda Foundation filed a climate case against the government enjoining the latter to take more measures in preventing climate change. This is the first case in which citizens have been able to successfully establish that the government has a legal duty to prevent and curb climate change. The District Court of Hague granted the petition of the Urgenda Foundation on 24 June 2015 and which decision was upheld by the Dutch Appeals Court on 9 October 2018 when appealed by the Dutch government. The Supreme Court has yet to issue its decision on the matter.

Carbon Majors Inquiry

In May 2016, Greenpeace Southeast Asia, together with other Filipino citizens, mostly comprise of climate change victims, submitted a petition to the Philippine Commission on Human Rights asking the agency to initiate and conduct an investigation on the so-called “Carbon Majors” responsibility for human rights violations resulting from the impacts of climate change. The petitioner base their inquiry on their fundamental right to health and healthful ecology as enshrined in the Philippine constitution. To this date, the Philippine Commission on Human Rights are still completing its investigation, the formal inquiry hearing of which started in 27 March 2018.

People’s Climate Case

Ten families from Italy, France, Portugal, Romania, Germany, Kenya, Fiji, and the Saami Youth Association Sáminuorra initiated a litigation action before the European Union (EU) General Court to seek redress from the adverse effects brought by climate change in their specific livelihoods. The petitioners are asking the EU General Court to order EU legislative bodies to enact firmer measures to prevent climate change and to protect their rights are citizens. The court, however, ultimately dismissed the petition on 15 May 2019 on technicalities, specifically, for lack of legal standing.

Juliana v. US

In 2015, twenty-one (21) youth petitioners, by themselves and on behalf of future generations, brought an action against the United States of America and several of its executive branch agencies and officers to enforce their rights to life, liberty and property by adopting measures and actions to reduce greenhouse emissions which cause climate change. The suit is still pending appeal to this date.

How climate change legal actions could be effective

Fighting climate change through legal actions may not be one of the most popular ways of curbing the effects of pollution and environmental ruin. Some may believe that lobbying and rallying for certain practices such as elimination of plastic straws in commercial establishments is much more effective than going through all these legal processes which may sometimes be too complicated.

Nevertheless, various legal actions all over the world, whether pending or concluded, have proved that pursuing legal actions had enormous effects, not only on the corporate players but also on the government side. That said, the following are the likely outcomes of climate change disputes and actions against the government and industry players.

1. Challenging climate change-related legislation and policies, or their application. In some cases, courts direct government officials and government offices to take a proactive approach and to fulfill their obligations to preserve and protect not only its people but also the place where the people live. Thus, legislative bodies are oftentimes pressured to review existing laws and regulations to address these environmental issues and create new laws when necessary.
2. Preventing future emissions and contributions to climate change. In most class suits initiated by interested stakeholders, the party litigants ask that certain activities and factors be stopped and prohibited insofar as such actions are destructive to the environment. Consequently, when such activities are proven to have been causing and contributing to the pollution and destruction of the environment, courts and government agencies are mandated to issue orders prohibiting others from doing such similar activities. Moreover, these actions and orders serve as deterrents to others who wish to engage in similar destructive actions, thus, effectively prevent future breaches.
3. Requiring governments or regulators to take action to meet national or international commitments. As a form of policy building and enforcement, certain governments and regulators are encouraged and, sometimes, even obligated to fulfill their obligations and duties to their constituents and even to the international community. These include passing pieces of legislations or signing and ratifying agreements and declarations aimed to address climate change.
4. Raising awareness and exerting pressure on corporate actors, regulators, or investors. In the fast-paced world of today, it gets increasingly hard to focus on other matters which have somehow made their way in the background. This is especially true for the government and corporate actors or investors who are preoccupied addressing other areas they are tasked to address. With these legal actions, however, issues on climate change are again brought into the foreground. Consequently, these governments, industry players, as well as investors are becoming more socially aware of the environmental issues and who are likewise pressured to address climate change.
5. Compensation for the costs of adaptation to climate change. In actions against the government and/or corporate violators, courts are likely to award damages to compensate for the injury and harm inflicted on the environment as well as for the reparation of the adverse effects on the people affected caused by such acts.

One notable case in point demonstrating the above-mentioned effects is the aforementioned Climate Case of Urgenda. While the case is still pending, it cannot be denied that government players are now more aware of their legal obligation to protect the earth. These effects of this pending case cascade not only to the whole of the government sectors but also to the corporate and private sectors who are likewise made more aware of their infractions. This awareness alone is already a victory on the part of the environment. Nevertheless, the Dutch citizens, and possibly the whole world, positively await the day that the Dutch Supreme Court finally rules that, indeed, the Dutch government had the legal obligation and duty to protect its citizens, including the right to enforce sanctions on polluters and environmental infractors, with a view of proactively engaging in global policy making and reduction CO2 emissions on a global scale.

Conclusion

Much has already been said on the benefits and advantages of filing legal actions against climate change. Nevertheless, it bears stressing that we, as citizens and main stakeholders of a cleaner and greener earth, have the duty of looking for all possible ways to help in the pursuit of a livable world.

Lest we become complacent, we must be proactive in seeking redress for violations of our rights and in preserving our posterity and environment. Indeed, there is strength in numbers, the more of us who take action, the more our voices will be heard.

What now? Find and connect to lawyers and organizations in your jurisdiction who are working on protecting our environment, learn more about the topic on our blog or on the Legalmondo backed project Climate Change Legal Action.

Do it now, be involved.

Click here to find a list of organizations working in different ways to stop climate change.

It’s never too late to start and make a change in the hopes of a better future ahead.

Photo by William Bossen on Unsplash

The author of this post is Alessandro Mazzi.