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Mitigation – reducing emissions – actions against governments and public bodies

This page is about mitigation-related litigation against governments. Around the world, governments are the most common defendants in climate change cases. Concerned citizens and non-governmental organizations are demanding that governments justify all kinds of decisions, from their national climate change mitigation policies to particular projects (for example the expansion of airports and coal mines, licenses for energy projects, etc).

This page covers the following types of mitigation actions against governments (which are not exhaustive and may overlap in a single lawsuit):

  • Claims against a government to enact a law or policy with new or more stringent limits on GHG emissions;
  • Claims against a government’s decision to permit an emissions source;
  • Claims requesting a new or more extensive environmental impact assessment (“EIA”) which includes impacts of climate change on a proposed project;
  • Claims to extend the scope of human rights, property rights or civil rights to provide protection against the effects of climate change.

In the section below, examples are given of cases that have been brought to date. Every case is of course unique on its own facts. However many cases make the same basic points about climate science, the harm which is being caused and will be caused by CC, and about the importance of international law.

Some cases rely on just one legal basis, others several. Anyone considering legal action of this type needs to which of the main grounds for action might apply. The points listed below are all actions, decision or omissions which potentially increase or fail to decrease GHG emissions

  • Acting (or failing to act) in breach of national law, or acting irrationally or (in a legal sense) unreasonably
  • Failing to act to prevent harm to people or property
  • Acting (or failing to act) in breach of constitutional or human rights
  • Failing to have or take account of an EIA (Environmental Impact Assessment)
1

Use of “judicial review” or administrative law on national climate law/policy

Judicial review, also called constitutional review, is the power of courts to review the actions of the executive and legislative branches In these cases the applicant asks the court to declare that a government or public body has acted or make a decision in breach of the law or irrationally or unreasonably. Usually the applicant has to show that they have been adversely affected by the act or decision. For more details of this requirement see the page on “standing in climate change cases” [link to be completed]. This type of action is easier to bring in some countries than others. Judicial review is relevant to stopping energy or infrastructure projects which may contribute to climate change but this type of action is covered in a separate page [link to be completed]

In the climate change context, judicial review can enable plaintiffs to challenge laws and regulations which contribute to climate change or fail to address, in breach of legal or constitutional rights. Claimants should consider whether to go through an ordinary court, a constitutional court or a human rights commission. For example The International Co-ordinating Committee of National Human Rights Institutions (ICC) (https://nhri.ohchr.org/EN/AboutUs/Pages/History.aspx )is an international network of national human rights commission with regional networks in Africa, Asia Pacific, the Americas and Europe.

 

Example: The US Supreme Court case of EPA v Massachusetts in 2007. The US Environmental Protection Authority was under a duty to regulate “pollutants” under the Clean Air Act. The EPA declined to regulate CO2 emissions from motor vehicles for reasons of policy and expediency, declaring that it was not a “pollutant”. The claimants in the case obtained a decision that the EPA was under a duty to make a real determination whether these emissions contributed to CC. The EPA contended that the claimants had not standing and that it had a wide discretion in what to do. The court rejected these arguments and that EPA’s actions were “arbitrary, capricious, or otherwise not in accordance with the law.

 

Examples: The United Kingdom and New Zealand both have statutes setting national emission targets, and requiring the national government to review those targets if there were changes in climate science of international climate law or policy. In two cases, one in each country, the government’s decision not to set more stringent targets has been challenged as illegal or irrational and in breach of the provisions of the national statutes. In each case there is significant reliance placed by claimants on recent changes in international climate law (The Paris Agreement of 2015) even though that does not set any specific national obligations. The judgment (2017) in the New Zealand case of Thomson v Ministry for Climate Change Issues is here and the grounds of complaint in the English case of Plan B v BEIS (2017 – the case was dismissed) is here – both contain much helpful material for anyone considering bringing a case themselves. A similar case has also been brought before the Indian Green Tribunal

 

2

Use of “tort” or “delict” or “prevent harm” principle

An example of a claim against a government for its failure to enact a law or policy that has more stringent GHG emissions limit is the case of Urgenda.

In June 2015, a Dutch Court decided in the Urgenda case that the Dutch government did not do enough to mitigate climate change. The Court ordered that the Dutch government enact more ambitious policies. The case was brought by an environmental group, Urgenda, and 900 individual plaintiffs.

Urgenda is regarded as a landmark case because it is the first time a court found that a government’s policies were not sufficient to properly mitigate climate change. The Dutch government lost an appeal in October 2018 but is currently (at the end of 2018) seeking to contesting this decision on further appeal.

Urgenda’s claim was that the government breached its constitutional duty of care to its citizens by having a low emissions reduction target (which was 16 percent compared to 1990 levels for 2020 instead of the 25-50 percent reduction target endorsed internationally for developed countries).

The court supported Urgenda’s position that the Dutch policy for 2020 is insufficient in light of climate science and international climate policy and issued a reduction order to instruct the Dutch government to create policies that would reduce GHG emissions by at least 25% compared to 1990 levels by 2020.

In relation to “standing” [see LINK – to be completed], the court found that Urgenda satisfied the criteria to bring about the case based on the Dutch Civil Code and that the Court could base itself on the decisions of the European Court of Human Rights to interpret the standard of care for the negligence claim.

The court also found that climate change is a global problem and therefore requires global action. This requires all countries to implement GHG emissions reduction measures to the fullest extent possible. The court did not accept the government’s claim that the emissions contributed by the Netherlands is small in comparison to other countries, especially since the Dutch per capita emissions are one of the highest in the world. The Court also referred to the Netherlands’ duty to take the lead as a developed country under the international climate change regime. The Court of Appeal judgment also referred to the importance in a CC context of Human Rights.

In addition to the UNFCCC, the Kyoto Protocol and the various decisions and action plans within the climate change framework, Urgenda also raised the “no harm” principle under international law. The no harm principle entails that no state has the right to use its territory in a manner that causes significant damage to other states. Urgenda also raised the precautionary principle, which implies that the absence of scientific certainty is not a reason to avoid precautionary measures if the risk is high. The court held that these principles applied between states and did not apply directly towards citizens. Similarly, the court held that EU law did not confer rights on Dutch citizens against the Netherlands.

However, even if Urgenda could not directly use these obligations to assert their claim, the court held that it had a duty to interpret national law in conformity with the rules of international law. The court referred to the internationally agreed 2 degree Celsius target to determine what the standard of care is. It found the 450 ppm scenario was the standard of care and that the Dutch government was obliged to implement more ambitious mitigation measures in order to achieve this scenario.

The court recognised that it must exercise restraint when deciding on disputes which have political implications and which are likely to impact third parties. Nonetheless, it emphasised that it is the duty of the court to decide on disputes between parties.

Tips and Lessons Learned from Urgenda 

  • Tort law can be used to sue government entities for their failure to enact or to implement a law or policy that has more stringent GHG emissions limit.
  • A minimum standard of care of governments to reach the 2C goal of the Paris Agreement is to pursue the 450 ppm emissions pathway scenario.
  • It does not matter that the overall emissions of a country are low. States must implement the GHG emissions reduction measures to the fullest extent possible.
  • Developed countries in particular must ensure that they take the lead in combatting climate change (Article 4.4 Paris Agreement, 3.1 UNFCCC).
  • International law can help interpret domestic legislation: the no-harm principle and the precautionary principles, the international climate change regime and human rights law are particularly relevant.

 

Urgenda can be cited as a precedent to support similar cases. It often cited in climate change litigation cases and has been replicated in Belgium. The case is particularly replicable in jurisdictions that rely on the Dutch Civil Code or are influenced by Dutch civil law (ex: Botswana, South Africa, Suriname and Indonesia). It can also be very helpful in jurisdictions that have a right to a healthy environment in their constitution.

3

Environmental Impact Assessment

Another type of litigation involves claims requesting a new or more extensive environmental impact assessment which includes the impact of climate change on a proposed project. In this type of cases, plaintiffs claim that the government did not consider enough, or at all, the impacts of climate change when granting the permits to develop or the expansion a project that produces GHG emissions. For example, challenges to the expansion of coal mines or an airport, granting licenses to drill for oil in the ocean and proposed power plants will rely on the inadequacy of the EIA.

These EIA and “permit” cases are the most common type of climate change litigation and generally have a higher success rate than substantive mitigation cases like Urgenda. As the effects of climate change impacts become more important over time, this type of lawsuits will continue to arise in the future.

Earthlife Africa

In Earthlife Africa, Johannesburg v The Minister of Environmental Affairs and other, the High Court of South Africa in Pretoria decided that the director of Environmental Affairs did not properly consider the climate change impacts when it approved the construction of a new coal-power plant. The court concluded that the domestic framework requiring an environmental impact assessment and the government’s duty to uphold the right to a healthy environment meant that the government had to assess the climate change impacts when granting a license.

The court decided that it did not matter that the South African law on environmental impact assessments did not require to assess climate change impacts. The government’s domestic legislation and its international obligations under the climate change regime required it to do so. Indeed, the Court referred to the UNFCCC for the precautionary principle, which requires all state parties to take precautionary measure to anticipate, prevent or minimise causes of climate change. It also referred to Article 4(1)(f) of the UNFCCC which imposes an obligation on all states parties to take climate change considerations into account in their relevant environmental policies and actions, and to employ appropriate methods to minimise adverse effects on public health and on the environment.

The court suspended the project developer’s authorisation until the minister of Environmental Affairs reconsidered the case based on a full climate change impact assessment and public participation for the power station.

Environmental impact assessment in a transboundary context

Customary international law requires states to conduct environmental impact assessments in certain circumstances. Principle 17 of the Rio Declaration requires that “Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority”. This duty is reaffirmed in multiple soft law instruments such as Article 7 of the ILC Draft Articles on Transboundary Harm and the 1987 United Nations Environment Program Guidelines on Environmental Impact Assessments. It is also an obligation for states that are parties to the United Nations Economic Commission for Europe’s Espoo Convention on Transboundary Environmental Impact Assessment and its Strategic Environmental Impact Assessment.

In the transboundary context, there has not yet been a case in front of an international court for the inadequacy of environmental impact assessment that does not assess the climate change impacts of the project. However, in 2009, the Federated States of Micronesia requested the Czech Republic to initiate a transboundary environmental impact assessment for its plans to expand the operations of a coal-fired power plant. Micronesia asserted that rising seas caused by climate change pose a direct threat to their food and water security and to the very existence of their lands. Micronesia filed the formal objection under the Czech Republic’s environmental impact assessment law but ultimately did not sue the Czech Republic when its Minister granted the permit.

International courts can review the adequacy of an EIA, as was the case in the MOX Plant and Pulp Mills disputes. Plaintiffs in those cases relied on the provisions of a treaty that required an EIA for planned activities and projects. Environmental impact assessments are national procedures for evaluating the likely impact of a proposed activity on the environment. The protection EIAs afford other states is procedural: it enables them to be informed and consulted. It does not afford the other state the right to veto projects, nor does it set out a process of prior joint approval.

Currently, there is no example of a case that was brought from one state against another on the lack of consideration of climate change impacts. While this is a possible avenue for mitigation-related climate litigation, only states may bring claims in front of international dispute-resolution bodies and individual plaintiffs should focus on national courts.

Tips and Lessons Learned

  • Most countries have laws that require environmental impact assessments as before granting a permit for a project.
  • When there is a decision to expand or create a GHG-intensive project, for example a coal-fuelled power plant, licenses for oil exploratory drilling, a new airport runway, etc, one avenue is to look at whether there was an adequate environmental impact assessment that evaluates climate change impacts.
  • Some national environmental impact assessment laws already include the requirement to consider climate change. For example, in the European Union, Revised EU Directive 2014/52/EU refers to climate at Article 3, paragraph 1(c) and at Annex III and Annex IV.
  • When projects have transboundary effects, states are required to conduct EIAs. The protection EIAs afford other states is purely procedural: it enables them to be informed and consulted.
  • For projects with transboundary effects, only states can pursue legal actions in front of international or regional courts. Individual plaintiffs have to rely on national courts.
4

Invocation of constitutional or human rights to healthy environment

Government laws or policies (or large scale infrastructure projects) may be capable of challenge if their effect is to infringe human rights or a national constitutional right to a clean or healthy environment. A separate page [LINK] deals with CC and Human Rights

Example: A recent (decision in 2018) challenge was brought to the Norwegian government’s decision to grant licences for drilling for oil in national waters, on the grounds that this would result in a breach of rights granted by Art 112 of the Constitution. Although the court did not find that that the government had acted illegally, it did confirm the nature of the right under the national constitution to a healthy environment

Example: In October 2018 a group of organic farmers in Germany sued the German government alleging that its policies on CC were insufficient and that their constitutional rights to life and health, property, and occupational freedom were violated.

5

Doctrine of Public Trust

An ancient doctrine which has recently been invoked in a CC context is that of “Public Trust”. This to the effect that national governments hold natural resources such as water or the atmosphere on trust for its citizens, and that laws or policies which fail to look after those assets constitute a breach of the government’s duty as trustee.

Example: In the “Our Children’s Trust” case the claimants have challenged US CC policy on this basis and the case is ongoing.

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