Climate justice: can lawyers help in the fight against climate change?
Since the beginning of January, Belgian students have been skipping school every Thursday and they will not stop until politicians set more ambitious goals for the climate. This is a provocative act of civil disobedience in a country like many where students are required by law to go to school until they turn 18. Let’s not forget: they do not have the right to vote but the decisions that are made now will affect their generation more than any other generation.
Last Thursday, there were as many as 35 000 students trying to make their voice heard in Brussels and, when kids take a stand, we all react whether we agree with them or not. Unfortunately, I am not an engineer or a scientist but I started wondering if my own skills could be of some use to defend this cause. Like many who chose to embark into legal education, I first believed law to be a vehicle for positive social change. But what can lawyers really do about climate change?
That is exactly what I decided to find out. In this post, I want to share some of my findings with those of you who also notice climate-related unfairness and those of you who have been trained to fight injustice.
Climate change litigation is real — just like climate change.
Yes, people are going to court to defend the environment. Yes, not only in the country where you can try to sue God. Law suits have already been filed against companies and public authorities all around the world and they are increasingly successful. In fact, significant legal battles have recently been won in Austria, Colombia, the Netherlands, Pakistan and the United States.[1]
What are the plaintiffs asking for? They want to raise awareness, challenge legislation, prevent further harm to the environment, obtain compensation and even demand government actions. While it may sound very idealistic, the Courts are actually going as far as requiring specific government actions.
In 2015, the Urgenda Foundation brought a case against the Dutch government arguing that it should reach lower emission levels sooner than it had planned and they won! The Dutch State appealed but in October 2018 the Hague Court of Appeal upheld the judgment: “the emission of greenhouse gases must be reduced by at least 25% by the end of 2020 compared to the level of 1990”.
To simplify, the reasoning goes as follows:
- life on earth is threatened by greenhouse gases;
- the State has a duty to ensure the protection of the life and family life of citizens (also in the long term) under the European Convention of Human Rights;
- the provisions of treaties which are directly effective must be applied by the Court and take precedence over national laws which are not in line with the treaties;
- more ambitious measures are needed to protect the life and family life of citizens in the Netherlands.
The Dutch government did not dispute the scientific facts but it defended that courts do not have the right to impose a political decision. Although the government appealed again and a report leaked this month shows that the climate targets will not be met, this case inspired legal action in many other countries. Indeed, activists are well aware that the Netherlands is only 1 of the 47 countries having ratified the Convention. It is worth noting though that the effects of the treaty in national law remain a highly divisive issue in international law.
Political views vs legal rights
The Dutch case illustrates that climate change litigation requires the ability to distinguish between rights which already exist in the current law and aspirational rights, although the boundaries might not always be crystal clear. In order to do this, the expertise of a wide range of lawyers can prove useful so don’t think that company law specialists don’t have anything to contribute. In fact, human rights aren’t the only arguments used to bring legal actions.
For example, the Supreme Court of the United States ruled this month that the Massachusetts’ attorney general can investigate a company in order to assess whether it deceived consumers and investors regarding the impact of its products on climate change. Legal arguments can be drawn from many other sources: consumer law, constitutional law, administrative law, environmental permits, access to information, tort law, etc.
What about EU law? Cases have already been brought but until now they mostly targeted specific Member States. A few months ago however, the General Court decided to hear a case brought against the European Parliament and the Council of the European Union. In the case of Carvalho and Others v Parliament and Council, now known as the People’s climate case, the applicants demand to annul three EU climate laws to avoid threats to fundamental rights to life, health, occupation and property.
Regardless of the legal arguments, let’s keep in mind that law can also be used to defend the opposite interests. For instance, Arcelor Mittal challenged an EU law regulating the total amount of greenhouse gases that can be emitted (Emissions Trading Directive). The action was dismissed but the reality remains that corporations, and to some extent public authorities, have more resources than individuals to cover legal expenses.
Klimaatzaak/Affaire Climat
This brings me to an ongoing legal action in my own country: Belgium. In 2015, a case has been brought against the federal government and each regional government to require them to adopt a more ambitious approach to reduce greenhouse gas emissions. If you haven’t heard of it yet, it is probably because a procedural dispute about the language in which the case should be heard delayed the oral pleadings until 2020 — yes, it is Belgium after all.
An NGO based in Anderlecht — my hometown — has been specifically set up for this purpose and their work is impressive. The subpoena is publicly available in French and in Dutch for anyone to read and analyse the legal claims that are made. In my opinion, it might even be a source of inspiration for similar proceedings in other countries without having to wait for the final judgment. There are no subsidies involved and the legal costs are entirely covered by donations.
The NGO makes clear that this is not a political movement but the largest collective citizen action in the history of the country. On the day of publication of this article, the legal proceedings already count 55 128 plaintiffs. It is possible to become a plaintiff for free through a straightforward online form and an authentication system via mobile phone. Of course, a paper form is also available. Actually, this is probably a high impact legal tech solution which doesn’t receive enough exposure: the subpoena is available online, you can join the proceedings online and the legal proceedings are explained in everyday language as well as in an infographic.
Do you want to know more?
This is only a small preview but if you are curious about what is happening in the world or in your own country, I would highly recommend to have a look at the Climate Change Litigation database from Colombia Law School. In 2017, the law school also published a comprehensive review of the status of this new type of litigation worldwide together with the United Nations Environment Programme (UNEP).
Feel free to get in touch or comment if you are also curious and hopeful about the positive social impact of the justice system! I would love to hear your ideas to bring about change and your own experiences.
[1] For the lawyers: Austria (Austrian Federal Administrative Court case no. W109 2000179–1/291E), the Netherlands (Urgenda Foundation v. Kingdom of the Netherlands), Colombia (Decision C-035/16 of February 8, 2016), Pakistan (Leghari v. Republic of Pakistan) and the United States (Juliana v. United States).
