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This module is about how legal action may help those affected by or vulnerable to climate change (“CC”). Legal actions around climate change have become more common in recent years, and the period of 2015 – 2018 has seen a large number of cases. Not all those have been brought by people concerned by climate change, and not all have been successful. However the law is increasingly a useful tool to those who consider that the political response to climate by governments and industry is too little and too slow. The cases are being brought by all sorts of concerned people – sometime national or state/regional officials but more often by civil society organisations or groups of concerned citizens
This page given an introductory overview, with key topics addressed in more detail in other pages.
What is Climate Change ?
CC refers to the changes in climate because of the increase in “mean” or average global temperature which is currently happening and which will continue to happen. This temperature has increased by about 1 ° C in the last 115 years (see here). Weather conditions experienced by people have always varied. But the change in climate is in terms of trends or patterns over a long period. The effects are and will be very different in different places in the world. They are very varied and not limited to increase in temperature. This section of the website is about how legal action can help prevent or lessen climate change itself, and its adverse effects.
There is almost universal acceptance by governments and scientists that CC is happening, will continue to happen and could have very serious effects indeed if not controlled. There is a political and scientific debate about exactly how serious those effects could be and in what circumstances they may happen. The best summary of the scientific consensus is in reports of the IPCC, the international scientific panel on climate change. A summary is here.
Climate change experts use a lot of technical terms or “jargon”. The IPCC has a glossary which explains these. There are two important terms often referred to, which often cause confusion. “Mitigation” means the process of minimising or limiting climate change. “Adaptation” refers to minimising or avoiding the effects of CC by adapting to the changing conditions.
What Causes Climate Change ?
This used to be a subject of intense debate. Now however there is overwhelming consensus among scientists and governments that it is mainly “anthropogenic” – that is caused by human activity since the beginning of the industrial age in about 1750. This is because of the increased emission, from various sources of “Greenhouse Gases” or GHGs. The most important is Carbon Dioxide (CO2), whose level now exceeds 400 ppm, the highest for 3 million years , but others such as methane are also relevant. Most of these emissions come from the burning of fossil fuels (oil, coal, gas) for energy for heat, power and transport, but there are also significant emissions from agriculture and land use.
How may legal action help ?
Much energy and attention has been focused globally and nationally on CC. Many national laws and some international treaties have been passed. The two most important international treaties are
However neither of these treaties provide a directly enforceable legal mechanism for the taking of action which will prevent CC or its effects, or compensate those who have suffered damage. So legal action in the courts is still potentially very important
CC is often described as an environmental problem. But it has some unique features which make it unlike other types of environmental problem such as pollution of the air by a factory
Tip: Some projects which are a threat to CC globally also have very specific local effects. These were raised in the Greenpeace claim against the Norwegian Government (dismissed in 2018)
Because of these unique features
Example: In 2015 a Dutch Court found that the Netherlands must do more to avert the imminent danger posed by climate change in view of its duty of care to protect and improve the living environment, even though the Dutch contribution to global climate emissions is 0.5%, The Court determined that the Dutch government must reduce CO2 emissions by a minimum of 25% (compared to 1990) by 2020 to fulfil its obligation to protect and improve the living environment against the imminent danger caused by climate change. The Dutch Court of Appeal upheld this decision in 2018, emphasising also that climate change involved violations of Human Rights. (In November 2018 the government announced its intention to appeal again)
Example: In the Leghari case in Pakistan the “Green Bench” court directed responsible ministries and departments to: appoint a focal person on climate change to appear before the Green Bench, and prepare a list of adaption measures to be completed by the end of 2015. The Green Bench also established a Climate Change Commission to help the Court monitor progress and achieve compliance with guidelines.
Global average temperatures are rising. But this does not mean that everywhere becomes a little hotter or that effects are limited to temperature change. There is separate section in this module [to be completed] to problems and damage caused by CC. Different places are affected differently.
There is a wide range of different problems caused by climate change at a local level, Damage can be caused by any change in climate, whether it is hotter, colder, wetter or drier. The main direct problems are
All these potentially cause physical damage (damage to property and injury or death to people) as well as economic loss and adverse social and political changes. These include
The worst effects likely to fall on vulnerable and often poor states – Bangladesh, Philippines, Nepal are examples
In addition CC has a disproportionate impact on the poor and marginalised people within any state, often including indigenous peoples, the elderly and women. Young people (and future generations) are also vulnerable in the sense that CC is likely to increase in severity in the future and in the long term.
It is not only people who are vulnerable. Biodiversity and the environment generally are threatened by climate change, with many animals and plants adversely affected. Marine life including coral reefs are particularly vulnerable to warmer and more acidic oceans.
Anyone who has been affected or who will or may in future be affected may be able to take legal action. This covers a much of the global population, although as explained above there may be no direct or immediate benefit from the legal action. Particular people or groups of people might include
Often the most effective action is by groups of citizens or regional communities such municipalities or indigenous communities.
Example: In 2005 the Innuit Circumpolar Conference presented a petition to the Inter American Commission on Human Rights.
The most common types of remedy sought in climate change cases are
Example: Greenpeace Nordic Association v Government of Norway, where the claimants challenged the grant of licences by the defendant for oil and gas production, based on Article 112 of the Norwegian constitution giving a right to a healthy environment.
Example: In the Kivalina case, the claimants were Innuits whose village on the coast of Alaska had become uninhabitable because of ice melt and sea level rise. They sought, in a claim brought in the USA the cost of relocating from a number of major fossil fuel companies. The failed but on technical legal grounds, not because of a lack of proof that CC had caused damage.
Example: Three Californian coastal communities have sued major fossil fuel companies in relation to the cost of protection against sea level rise, alleging that the companies have committed various wrongs including nuisance and negligence and that they deliberately concealed the dangers of these fuels.
Example: In the case of Lliuya v RWE the claimant is a Peruvian farmer seeking to claim from RWE, a power generator, a declaration that it would be liable for a proportion of the cost of protection against glacial melting. His claim, in the German courts, is based on the German law of nuisance contained in its civil code under which a party may be liable for interference with property. As at the end of 2018 attempts to stop the case have failed and a trial will determine issues of causation of damage.
Example: The US Army Corps of Engineers (“USACE”) were held liable to residents of New Orleans for costs incurred by flooding after Hurricane Katrina, on the basis USACE had negligently failed to factor in the potential effects of climate change when designing flood defences. An appeal was allowed on technical grounds of immunity of the defendants.
ELAW have a Climate Litigation Primer to help those interested in taking action. They also have a more detailed section of their website devoted to climate litigation strategies. This provides much useful advice and guidance. in 2018 Greenpeace have published a practical People’s Guide to help communities holds governments accountable for climate change problems, based on upholding Human Rights.
This is covered in more detail in other sections of this module. However the key types of claim are usually based on one or more of the following types of actions
Example: In 2017 in New Zealand a concerned citizen challenged the Government’s decision not to set more ambitious emissions reductions targets.
Example: The Indian Ministry of Environment and Forests approved a proposal to clear 1,900 hectares of forest land for coal mining. The Indian Green Tribunal concluded in 2014 that the “Minister acted arbitrarily”.
Example: In Juliana v. United States, 21 youth and others challenge decisions of the President of the United States and several federal departments and agencies because those decisions “have substantially caused the planet to warm and the oceans to rise.” (Opinion and Order, pg. 4). The action relied on the doctrine of public trust and other rights of young people. On November 10, 2016, federal District Court Judge Aiken issued an Opinion and Order adopting a magistrate’s Findings and Recommendations and denying the federal government and industry intervenors’ motions to dismiss the case. Judge Aiken determined that the political question doctrine does not apply to this case; the plaintiffs have standing; and the plaintiffs have properly asserted due process and public trust claims. Repeated government attempts to halt the action have failed although at the end of 2018 permission was given to the government to appeal an Oregon federal court decision which permitted trial to go ahead.
Relevant factors and arguments
These vary widely from case to case, but may include these