Climate litigation — addressing fundamental rights… for having a future
Interview with Laura Burgers, specialist on climate litigation
When does climate change action turn from a political ambition into a legal obligation? To what extent are governments held accountable by litigation for undertaking action to counter climate change? Worldwide many cases have been brought to court, by climate activists, by individuals, and even by (local) authorities to force governments, but also companies, to adhere to commitments made or comply with climate legislation in force. Among legal scholars in Europe, one of the most well-known climate cases is the Urgenda judgment in the Netherlands. Up to as many as three times in a row, the judicial authorities have directed the Dutch state to comply with the legal obligation to reduce at least 25% of its emissions compared to 1990 levels by the year 2020. Laura Burgers, currently with the Amsterdam Centre for Transformative Private Law of the University of Amsterdam, is a specialist in this case, having made it one of the central pieces of her PhD thesis on the legitimacy of judicial law-making in European private law cases on climate change. She argues that the issue goes a lot further than a debate on whether judges make climate change law.
By Gaston Moonen
Climate issues — politics into courts?
The issue of climate litigation has been receiving ever more attention, with cases being brought to court in the EU and beyond. According to different academic databases, for example those of the London School of Economics/Grantham and Columbia University, over a thousand cases have been launched on responsibility issues for the dangers of climate change. For Laura Burgers this was important but not the main reason why she got into this subject matter: ‘I was supposed to write a PhD about the role of the judiciary in European private law when I started in January 2016. Six months before, the first judgment in the Urgenda case1 had been handed down, a case I found extremely interesting. It was immediately controversial: many people had articulated opinions on the court’s decision.’ She explains that more climate cases came up, so she decided to write her entire PhD on climate litigation. She refers to an article she wrote in January 2020, entitled Should Judges Make Climate Change Law?, which provides a good insight into the contents of her PhD thesis.
Laura Burgers identifies an important transnational element in the existence of all these cases . ‘Seeing an increasing number of climate cases is in itself fascinating. Actually, many people still think or deem climate change to be something for politics rather than the judiciary. But interestingly enough that standpoint is being challenged with all these cases.’ In her analysis, she leans upon what scholars such as Jacqueline Peel and Hari M. Osofsky have identified as a ‘rights turn’ in climate change litigation. ‘Meaning that the cases that had most success displayed reasoning based on fundamental rights.’ It turns out that those relating the cases to fundamental rights, to constitutional foundations, have a higher success rate than those who do not. ‘Take the Urgenda case: the rights applied directly to this case were the rights to life and private life in the European Convention for Human Rights.’
“… the [climate] cases that had most success displayed reasoning based on fundamental rights.
One of the risks often associated with litigation relating to climate change is that judges are being accused of putting themselves more in the political seat instead of taking the judicial seat. Laura Burgers finds it understandable that such discussion arises. ‘Of course it is controversial, because climate change is a topic that transcends the national boundaries of our constitutional democracies. In this respect, it is interesting that many defendants in climate cases point out that not they are responsible but it is rather a global responsibility.’ She adds that for instance in the Urgenda case, the Dutch state claimed that the Dutch emissions as such were quite a minor part of global emissions. ‘And also — without exception — all the corporations sued say that this is a matter for society, that corporations alone should not be blamed. And they are right — climate change is a global issue that can only be addressed effectively if everyone is on board. At the same time, it means that we all should actually be on board! It is also understandable that environmentalists think that they should go to court to enforce the obligations that certain actors have taken upon themselves.’
This free riding aspect, whereby everybody is responsible and therefore nobody is responsible, or people can easily duck such responsibility, has a historical dimension. Laura Burgers: ‘Much international environmental law is not per se legally binding and often it is intentionally made ‘non-justiciable’ — meaning that it was never meant to be invoked before a court by individuals. That also explains the unease that many people feel when all of a sudden all of this climate change law is enforced in the courts.’ This is exactly where she thinks fundamental rights are so important. ‘Because it is not controversial that governments should respect fundamental rights. But these rights are, in a way, very abstract: the right to life, the rights related to health .’ She explains that these general notions clearly need interpretation by a judge.
“… these rights are, in a way, very abstract: the right to life, the rights related to health.
Here, an analogy with criminal law comes to mind: the law merely states that murder is forbidden, without clarifying means of killing. ‘Judges always have the responsibility to interpret the law so that it makes sense in concrete cases, and so that laws that were enacted maybe decades ago still hold their relevance today. I imagine that when the criminal provision about murder was introduced, the legislator did not think of machine-guns at that time because they simply were not invented at that time.’ For her it makes perfect sense that judges render these provisions up to date and include them in their interpretations. ‘There is one instance where fundamental rights are particularly relevant. That is where the interpretation at hand goes against the majority decisions, which are usually made or represented by the legislative branch of government. Only reliance on fundamental rights can legitimise the overturning of a decision against a democratic majority.’
She adds that fundamental rights, irrespective whether they relate to a minority in the population or a majority, need to be respected. ‘This is because fundamental rights shape the conditions for democracy as such.’
“… fundamental rights shape the conditions for democracy as such.
Political theory underpinning fundamental rights
Laura Burgers links her position to constitutionalism and democracy. ‘In legal theory there is always a bit of tension between what prevails — democracy on the one hand, or the veto rights of the minorities. This is always presented as a tension. Habermas — in his work Faktizität und Geltung [Between Facts and Norms] comes up with a very elegant solution for this tension. He argues that these fundamental rights and democracy or — if you like — popular sovereignty and human rights are, as he calls it, “co-original.” They cannot exist without each other, they are necessary conditions for each other. He says that democracy can only exist when our fundamental rights are protected.’
“ And vice versa: only through democracy can we ensure that our fundamental rights are sufficiently protected.
She points out that Habermas’s argument is that if your fundamental rights are at stake, you are also prevented from participating in these society-wide deliberations on what the law should look like. ‘You can no-longer actively be there as a citizen. And the other way around: it is only through your public or political autonomy, only through your capacity to join in the deliberations, that you can gain assurance about your private life, your private autonomy — that they are protected.’ She makes clear that you need these fundamental rights in order to be able to exercise your democratic rights. ‘And vice versa: only through democracy can we ensure that our fundamental rights are sufficiently protected. The whole idea of democracy is that that those who are bound by the law are also the authors of the law. This we can only maintain if we have both — these fundamental rights and democracy, both public and private autonomy. And that is exactly the element that legitimises judicial interference when a fundamental right is at stake. Not because the judge thinks that this is a problem, but because the democratic project as such is built on fundamental rights.’
“…we see the environment as a foundation of society, as a part, a necessary condition, of constitutional democracy…
For Laura Burgers it is clear that what happens nowadays — climate protest against some kind of political decision-making, also through litigation — is a global movement, a transition in which increasing constitutional value is attached to the environment. ‘We see the right to environment emerging globally. This means that we see the environment as a foundation of society, as a part, a necessary condition, of constitutional democracy, as a condition to be able to exercise the other rights you have. Even to have a democracy at all. And this makes sense. Imagine that you are an elderly person and you die because of a heat wave. Then there is not much left of your democratic rights. This is a bit of an extreme example, maybe, but even if your health is already impaired, this is also the case.’ Other conditions can relate to air pollution, and even to the current Covid-19 crisis situation. ‘We are in a state of emergency now and we will definitely be in many more states of emergency if climate change reaches its full effect. We really do not want to imagine half of the Netherlands overflowing with seawater.’ She believes the Netherlands may be able to cope through technical solutions. ‘But this might be different for people in poorer nations, such as Bangladesh.’
The Urgenda case — fundamental rights to the forefront
For her the Urgenda case is a clear illustration of her viewpoint, if not the claim that only fundamental rights can legitimise counter-majority interpretations by a judge. The claim in this case was brought by an NGO called Urgenda — standing for ‘Urgent Agenda,’ with the underlying thought that climate change is of utmost urgency.’ She explains that this NGO Urgenda challenged the Dutch government decision to lower its CO2 reduction goal. While, initially, the Dutch government had aimed to reduce at least 30% of the Dutch emissions by the year 2020, it then lowered that goal to less than 20%. Then, in 2013, the Urgenda foundation launched a case against the Dutch state.
‘What is interesting is that the legal basis, at the first instance when the court actually ruled in favour of Urgenda, was tort law — there was an open norm of national tort law saying that one should not act in a hazardously negligent manner and this was interpreted with regard to climate law and international human rights law.’ She adds that international climate law and international human rights law were elements that the court used to make sense of the tort law provision at issue, that one should not act in a hazardously negligent manner. ‘That, of course, is not a fundamental right and it ordered the government to do something which was not based on fundamental rights.’ She recalls it was an enormous controversy. ’But then, during the appeal in 2018, the Court of Appeal said that it would uphold the order. But this time based directly on Articles 2 and 8 of the European Convention of Human Rights. And those are, of course, fundamental rights.’
She notes that it was then immediately obvious that there was much less opposition and much less controversy around the case than after the first verdict. She also specifies that the case was actually dealt with by Dutch courts at least three times. ‘It also went to the Supreme Court in the Netherlands. You can actually argue even four times in a row as even the Advocate General found that it made perfect sense to uphold this order. So we had four judicial authorities — if you also consider the Advocate General to be one — in the Netherlands who had said “It is a legal obligation on the Dutch state to reduce at least 25% of its emissions compared to 1990 levels by the year 2020.” So that is by this year!’
The transnational element of this case is also rather interesting. ‘Most relevant is the fact that an international convention was upheld in this national case, because this is likely to have a persuasive effect on interpretation of these rights in other jurisdictions as well . What I could also see very much in my own research, where I looked into many of the European climate change cases, is that they all invoke Urgenda.’
“… the fact that an international convention was upheld in this national case (…) is likely to have a persuasive effect on interpretation of these rights in other jurisdictions…
Surprisingly, both defendants and claimants invoke the Urgenda case. Laura Burgers: ‘It is always used as an argument by the claimants saying that in the Netherlands this has successfully led the courts to confirm the climate obligations of the Netherlands. But, for instance, a company that was sued in Germany said that Urgenda proved that the case was against the state and it should not be a case against the company.’ She gives another example regarding Norway, where there was a climate case launched against the government and the argument was that this Urgenda case concerned general policy. ‘While, in the case of Norway, we are talking about a specific decision. So it is interesting that everybody is referring to this case, but from different perspectives.’
When discussing possible consequences, also in the sense of liabilities towards other parties, Laura Burgers makes it clear that the reactions of the Dutch government to the verdicts have not been too inspiring on that aspect. ‘To begin with, it is highly regrettable that the Dutch government did not act more swiftly upon the judgment that was already delivered in 2015. Since then it has only challenged the Urgenda verdicts and has not really acted upon achieving this 25% reduction. While it publicly said it will do so, it did not in practice. So time has been lost, regrettable for the climate, only increasing the climate problems in the Netherlands and elsewhere. Secondly, because of the rule of law; the government should act in line with judicial decisions.’ Here she believes it was and is not unrealistic to achieve this.’ As NGO Urgenda has presented a plan with some 40 suggestions on how the Netherlands could possibly reduce more of its emissions.’ She adds that, overall, most other EU Member States have reduced far more than the Netherlands. ‘The Netherlands has this self-image of being very green and being a front-runner in the energy transition. But if you look at the figures it is actually not true; we are really among the worst in Europe.’
Climate litigation at EU level and beyond
While the Urgenda case has been invoked by several parties elsewhere, the question arises whether a comparable case can happen at EU level. Laura Burgers makes it clear this is already the case. ‘A case has been launched before the Court of Justice of the European Union [CJEU] called the People’s Climate Case. Perhaps a slightly populist name, but this was launched by a group of families, both from inside and outside the EU. The first sentence of their claim is: “This claim is brought by children and their parents.”’ She adds that the emphasis on children is not coincidental. ‘Because children will suffer the most from climate change, simply because they will live longer and the effects of climate change will be felt more in the future than now.’ It turns out that this claim was rejected by the CJEU’s General Court and that the claimants will appeal to the next level, being the Court of Justice. (1)
The Dutch climate litigation expert explains that the plaintiffs launched their claim on the basis of Article 263 of the Treaty on the Functioning of the EU (TFEU). ‘This provision contains admissibility requirements laying down that they should be directly and individually concerned. According to the General Court these requirements were not fulfilled because everybody is effected by climate change.’ She observes that if the Court of Justice, during the appeal, agrees with that, it would mean that climate litigation at the CJEU is not possible. ‘The Court has been criticised for this position because it leads to a paradox — the more people that are involved with a certain damaging event, the less judicial means you have, at least at EU level. And I doubt that everybody is effected the same way by climate change.’ This paradox was also pointed out by the claimants in this case.
Laura Burgers notes that these admissibility requirements were introduced in the 1960s. ‘When we were not really concerned about climate change yet. In addition, she believes that in this particular case the Charter of Fundamental Rights of the EU was invoked in a rather interesting manner. ‘Two aspects were particularly interesting. Article 21 of the Charter was invoked — the right to equality. The claimants say that this right to equality means that also people from outside the EU should be able to bring a claim to the CJEU. Secondly, that the fundamental rights that are under pressure due to climate change have to be protected for people now and in the future. So they say that this right to equality applies regardless of place and time.’
Also in the People’s Climate Case, reference was made, by the CJEU, to the Urgenda case. ‘One of the reasons the General Court gave for not accepting this case was that the right to effective remedy was not violated, since the Urgenda case showed that people who disagree with the climate policy of their government should go to national courts rather than the CJEU.’ According to Laura Burgers this relates to the fact that climate and environment are areas where the EU and its Member States share competences — the EU setting certain minimum levels, which does not mean that Member States cannot do more or have more ambitious climate policies. ‘And some of them have such possibilities.’
The question remains of what legal remedies there are if the Member State level does not deliver. Does this mean that an EU citizen or organisation has no resort to a higher court, at EU level? Are any infringement cases possible as provided for under the TFEU, which would result, for example, in the imposition of financial penalties? Laura Burgers: ‘Under Article 263 of the TFEU individuals can bring a claim against an institution of the EU, whereas Article 260 is rather about the European Commission bringing claims against the Member States. What is important is which law you are looking at. And one of the issues here is precisely that the EU does not have ambitious climate goals. The ambitions in the relevant directives are not that high.’ She refers again to the Urgenda case. ‘One of the arguments of the Dutch state was: we comply with EU law, namely the minimum reduction of 20% by 2020. But if you look at climate change science data you will see that it is actually not enough to prevent the Earth from warming up by more than two degrees Celsius.’
While existing EU climate law is not so ambitious, this might change in view of the work currently being done on the European Green Deal. ‘Perhaps in the future there will be infringement procedures. But one of the climate change issues is problematic — it is the notion of tipping points: once the CO2 has been emitted into the air, at a certain point there is just so much that warming processes can no longer be stopped.’ As an example, she refers to the permafrost that may have melted, triggering even more global warming. ‘So penalties are perhaps not what we need. At a certain point we cannot repair the damage to the atmosphere .’ She concludes that for now the focus should be on mitigation. ‘But where mitigation is no longer possible, of course we must focus on climate adaptation.’
Outside the EU there has also been a proliferation of climate litigation. ‘There is an interesting case in Pakistan, of a farmer, Mr Leghari, charging his government with failure to carry out the National Climate Change Policy of 2012.’ It turns out that in 2015 the appellate court in Lahore, citing domestic and international legal principles, determined that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens .”’
Another prominent example is a recent case launched before the commission that is overseeing the UN Convention of the Rights of the Child. ‘This claim was launched by the famous Greta Thunberg and some other youngsters. They argue that their rights to life and their rights to health and culture are violated by five signatory states to the Convention of the Rights of the Child. There is another case — Our Children’s Trust — a national case directed against the U.S. government [Juliana v. United States], also on the basis of that Convention, asserting the violation of youth’s rights to a safe climate.’
Climate litigation urging: stop talking and start acting
Quite often, where courts have expressed themselves in favour of claims for climate action and protection, accusations of ‘judicial activism’ or ‘judges delivering a political verdict’ have surfaced. Laura Burgers underlines that in her article she wanted to contrast the role of law and politics. ‘At a certain point somebody asked me: “What is the added value of law against politics?” I think that politics, in its essence — and here I am very much inspired by Habermas — is the discussion on how we want to regulate society. As long as we are still in a discussion on what we want to do as a society then we are in the political domain. But as soon as we have made a decision — saying this is now the rule that we will now obey, then we enter the legal domain. So once we have made the law, through politics, then we can start to enforce it. Start acting!’
She adds that for a long time climate change was seen as something for politics. ‘But the law is dynamic: we can change the law at any time by adopting new laws. But it can also change through interpretation, especially open norms.’ She continues that politics is — ideally speaking — not only taking place in institutions that form the centre of government, but in the whole of society. ‘Politics is something that takes place in the whole of society or at least everyone in society should be able to participate in the relevant debates. What we see is that we are increasingly considering climate change to belong to the legal rather than the political domain . Climate litigation cases are signalling just that. Apparently the claimants feel so sure about this that they dare to bring a case to court. One only brings a case to court if one thinks that there is a chance of winning. Thus, the environmentalist claimants are articulating the opinion that climate change is no longer something for politics, it is for the legal domain: and we can stop talking and start acting.’
With a laugh Laura Burgers explains that this is not only her imagination but is supported by others, a transitional thought shared by many legal experts and ventilated in 2015 in the Oslo Principles, articulating the obligations of states to act against climate change under existing law. This group of scholars looked at existing laws — at all levels, international, national and regional — and they deduced from that that nation states already have hard legal obligations to act upon climate change. Later on they continued this work and formulated principles relating to climate obligations for corporations and even investors.’
When it comes to climate change action and its urgency, legal scholars, colleagues of Laura Burgers, have even used the phrase ‘If a bus speeds on to plunge into a ravine, then a sharp turn of the wheel is imperative.’ While she agrees with the urgency, she also puts the capability of litigation to achieve it into perspective. ‘Litigation is slow. If a government does not act well upon its obligations for a long time, and all of a sudden you have a judge saying “Now you really have to act,” that may also create political tensions.’ She thinks that a government stalling about undertaking climate action can also lead to polarisation in society. ‘That is another reason why it is such a pity that, for example, the Dutch government has not already done more on reducing CO2. Because we will have to do this at some point, and the longer we wait the more painful it will become. The longer we wait the more we have to reduce, making it harder for ourselves and contributing to polarised views , particularly from those who have to decrease emissions substantially.’
Laura Burgers concludes that the results of the Urgenda case are in that sense disappointing because the government is slow in implementing the judgment. ‘On the other hand, it has generated a lot of publicity and attention in the media, which must have had some effect on the whole political debate on climate change policy in the Netherlands. And we do now have, in the Netherlands and in Belgium, a Climate Law.’ She sees another, secondary effect of litigation. ‘It not only addresses legal institutions; it is seen in other parts of society and thereby also has a wider political effect; if you like, contributing to a more society-wide debate on what the law is or how the law should look.’
Although adopted later than it could have been, Laura Burgers finds it positive that the Netherlands has adopted national climate legislation with goals for 2030. ‘Actually, many countries have national climate legislation. It is a wide-spread phenomenon in Europe.’ Although this is comforting as such, it also raises the question as to what extent climate litigation can produce effects in non-democratic societies, since some of those societies belong to the more polluting nations in the world. While she looked particularly at Europe in her research and did not concentrate on less democratic societies, she finds there are still signs of at least some impact of climate litigation in societies where the judiciary might not be considered independent. ‘What is striking in non-democratic systems is that they still adhere to fundamental rights, or at least aspire in their communications to appear democratic and represent the people. But if the judiciary is controlled by government, climate litigation might not be that influential.’ She recalls, however, a case in China: ‘There we also see climate change litigation, but against companies. It concerns more the issue of companies not delivering the performance indicated, for example, for their solar panel system, or commitments for energy grid composition, connecting several sustainable energy sources to a city, etc. Then there is litigation against them by state-funded NGO-type organisations.’
Climate litigation as a means to enforce accountability…for a green planet
While Laura Burgers has immersed herself in the topic of climate litigation, it is also clear for her that it is not the solution to the climate challenges the EU and the world face. ‘Climate litigation is not a goal but a means to achieve our common goal to save the planet. It is important to realise this, because judges cannot move too much on controversial grounds. As soon as things get very controversial, it is arguably still part of the political debate, rather than law. Judges can only enforce the bare minimum of what is necessary .’
“As soon as things get very controversial, it is arguably still part of the political debate, rather than law. Judges can only enforce the bare minimum of what is necessary.
In addition, she thinks that climate litigation can contribute to raising more awareness. ‘And to holding governments accountable, to make them do what they promise. But litigation is not the solution, for that we need hands-on politics and creative thinking. And a lot of stimulus to innovation, where the EU has a huge role to play, as one of the richest regions in the world.’ She underlines how much effort is still needed by referring to some recent Covid-19-related data. ‘I just read that now, because of the Covid-19 crisis, we are emitting much less than we would have done otherwise. But even if we continue to reduce our emissions at the rate we have done now — due to the current crisis conditions — we will not reach the goal of the Paris Agreement, keeping global warming to 1.5 degrees.’
“As soon as things get very controversial, it is arguably still part of the political debate, rather than law. Judges can only enforce the bare minimum of what is necessary.
While climate litigation can be a way of holding governments accountable, she sees an important role for public auditors. ‘By asking actors what the risks are and how you would address them — that is already very helpful.’ But she believes that, apart from liability and pointing out existing obligations, public audit has another rather essential task. ‘I think it is crucial to look at effectiveness, what governments propose as measures. One of the arguments that keeps coming back in climate litigation cases is that it is economically unwise not to do something against climate change right now. It is because the effects will be so much greater later on that climate mitigation now is a lot cheaper than climate adaptation later.’
(1) Another recent verdict from the CJEU relating to climate is the Deutsche Umwelthilfe judgement of 19 December 2019, which concerned a rather extreme measure of judicial enforcement of EU environmental law. In that case. the Land of Bavaria refused to comply with an injunction issued by a German court to introduce a ban on diesel cars in certain locations. As the imposition of periodic penalty payments did not lead to a solution (sums were paid but in reality did not entail a decrease in the Land’s own resources), the national court asked the CJEU whether it had to order the detention of regional officials to enforce the injunction. The CJEU responded that, if a judgement cannot be enforced, the essential content of the right to an effective remedy is violated, in particular if public health is at stake. The CJEU held that detention of officials may be required if all other remedies fail. But it emphasized that the fundamental right to liberty must not be infringed either if national law does not provide for a sufficiently clear basis for detention or if detention is not proportional.
This article was first published on the 2/2020 issue of the ECA Journal. The contents of the interviews and the articles are the sole responsibility of the interviewees and authors and do not necessarily reflect the opinion of the European Court of Auditors
