Climate change goes to court

Some twenty-four years after the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), a lot has been done to advance climate change law, both internationally and in Germany and the European Union. The UNFCCC entered into force, as did the Kyoto Protocol of 1997, with its flexible mechanisms. International environmental law now regulates international emissions trading and the calculation of emissions from land use change.

Meanwhile, the global 2°C target has been nearly unanimously recognized as necessary, even if opinions differ as to whether this political consensus should result in a legal obligation. The EU Emissions Trading Scheme, in place since 2003, regulates emissions-intensive sectors and imposes a certificate scheme on power plants throughout the European Union.

However, neither international law nor national law have been able to achieve true progress. Global emissions continue to rise, and the anticipated impacts of climate change are now becoming reality. No affected party has ever been compensated for the damage thus inflicted on them, nor are compensation or protective measures ensured.

Working with the law

To date, the preventive mechanism of international climate law has remained relatively ineffective. While the Conference of the Parties in 2015 could possibly mitigate these shortcomings, scientists concur that it will not be able to fully avert the anticipated climate change impacts. Nonetheless, this does mean that there is a out-and-out legal vacuum. Indeed, numerous approaches are being developed in the framework of existing law, and irrespective of international environmental law, to hold nations and climate change offenders accountable and to oblige them to take action. The Climate Justice Programme, for example, has been facilitating exchanges between jurists across the globe and prompting them to make the best possible use of the existing legal framework to protect the climate as well as human rights since its founding in 2002.

In the United States, courts have had to hear cases on climate change on numerous occasions. For example, as early as 2007, the US Supreme Court ruled that CO2 is a pollutant. As a result, the installation of new coal power plants was prevented, and damages and injunctive relief were sought against large emitters, albeit unsuccessfully so far. A look at the database of Columbia Law School also points to many other efforts made. Among these is the lawsuit of Our Children’s Trust filed against the government and the president of the United States on the basis of human rights and the rights of future generations.

The trend toward fighting climate change in court has also been taken up in Europe. There, a lawsuit filed, and won, by the association Urgenda in a district court in The Hague has shown the power which courts can wield. The court did no less than to dictate hitherto politically unpopular reduction targets to the Dutch Government. Also, a Peruvian homeowner dared to file a suit against the largest European emitter in order to protect himself and his neighbors against an imminent glacier flood.

In September 2015, several environmental groups also submitted the first human rights petition against fifty of the largest greenhouse gases emitters (“carbon majors”) to the Philippine Commission on Human Rights, a national body to monitor human rights. They are holding corporations co-responsible for climate change impacts and are pioneering new legal ground by demanding the respect for human rights not only by governments but also by private companies.

What’s causing this trend?

One explanation for this trend toward legal action, aside from the failure of global climate policy, is certainly the corroboration and accumulation of scientific findings. The IPCC states in its Fifth Assessment Report that:

Human influence has been detected in warming of the atmosphere and the ocean, in changes in the global water cycle, in reductions in snow and ice, in global mean sea level rise, and in changes in some climate extremes […]. It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.

In plain English this means that: Yes, there is a causal link between the observed changes and greenhouse gas emissions. Moreover, by means of detection and attribution, or so-called fingerprint studies, calculations are being made about the role of global climate change in the probability of the occurrence of extreme events. Thus, the links of the causal chain—up to now the biggest problem for legal practitioners—are increasingly being revealed and identified.

Another reason for this trend, from the perspective of those affected, is certainly the inadequate implementation of adjustment measures, and the financing thereof. For years, the international community has been in a debate over whether climate change is likely to cause loss and damage. In that context, the industrialized and emerging countries are keen to prevent any distribution of responsibility and oppose the introduction of regulations concerning damages—damages which, according to the IPCC, are invariably bound to occur.

Last but not least, the digital globalization is empowering people in the most affected countries of the South to fight back. Internet-enabled mobile phones in the Philippines, Kenya and Peru are in the hands of those who are already threatened or impacted by climate change, such as farmers experiencing droughts or floods.

The problem will not go away on its own, as recognized by the International Commission of Jurists. Complementing the climate law principles of the International Law Association (ILA), the Oslo Principles on Global Climate Change Obligations comprise a compilation of climate law principles and regulations that would obligate governments and corporation to account for claims and damages. The ILA and the Oslo principles comprise the legal norms and principles that are applicable in national and international law. A overview of these shows that climate law no longer has any significant gaps; if anything, it is the application that is lagging behind. Whether all this will lead to effective judgments remains uncertain, of course. Nevertheless, it is safe to assume that a Urgenda type of ruling could easily take place in many other jurisdictions. The same applies to the still undecided case of Lliuya. Whether nor not it is a good idea if courts instead of governments assume the task of ensuring the protection of the climate and human rights is another question.

Dr. Roda Verheyen is a lawyer specializing in environmental and international law and is also a political consultant.