Climate change and the rise of citizen suits

For many worried about the health of the planet, waiting
on leaders to stop a concerning increase in global carbon emissions isn’t an
effective strategy. Here are three examples of when bypassing government and
effecting change through the judicial system has worked.

By: /
20 June, 2016
A Massachusetts Water Resources Authority wind turbine (R) turns beside a 2002 megawatt fossil fuel power plant in Charlestown, Massachusetts, June 2, 2014. REUTERS/Brian Snyder
By: David Estrin

“The global climate change crisis is a threat to the well-being of humanity, and to my generation, that has been ignored for too long.” 

Those are the words of 17-year-old Shamus Miller, one of the four youth plaintiffs who sued Massachusetts’ Department of Environmental Protection over the state’s climate inaction. Concerned about the future of their planet and fed up with the state not meeting emissions targets, Miller and three of his peers took the matter to court. On May 17, they won.

While it’s certainly a historic victory in the state of Massachusetts, these youth plaintiffs are not the only citizens taking a stand against rising greenhouse gas (GHG) emissions. Given the failure of states to stop the almost constant increase in global carbon emissions – and now the worrying practical and legal gaps in the 2015 Paris Agreement— frustrated citizens are increasingly looking to domestic courts to require governments to mitigate emissions and limit climate harm. 

In the December 2015 Paris Climate Agreement, 195 states agreed to the need to limit the average global temperature rise to less than 2°C and preferably to less than 1.5°C. But the same states failed to include specific emission reduction requirements and deadlines necessary to meet these targets, and instead opted essentially for “best efforts.” As citizen suits such as the one in Massachusetts have pointed out, best efforts are no longer enough. The following are a few of the cases from 2015 that set the stage for tackling climate change through the judicial system: 

1) The Netherlands

Urgenda Foundation v The Netherlands

On June 24, 2015, The Hague District Court rendered a historic judgement. Lead Counsel Roger Cox imagined and successfully argued the ground-breaking case for the Urgenda Foundation, in which the Court of The Hague found the Dutch government owed a tort duty of care to its citizens, requiring the government to rein in carbon emissions by 25 percent by 2020. This ruling marks the first climate change lawsuit in which a domestic court found that its national government had a duty of care to citizens, requiring the state to reduce carbon emissions. 

This decision certainly inspired citizens in other jurisdictions to initiate similar legal actions. It also may portend a potentially significant new role for judges, and domestic courts in particular, as action-forcing mechanisms that can help achieve what 20 years of UNFCCC negotiations did not, and what the Paris Agreement fails to assure: actual, timely and sufficient reductions in carbon emissions to stop the global average temperature from increasing by more than 2°C. 

2) Pakistan

Leghari v Pakistan

Hon. Syed Mansoor Ali Shah, a Lahore High Court Green Bench Judge acting on the complaint of one citizen, found that the Pakistan government had a constitutional duty to protect citizens from climate impacts and ordered the government to take concrete measures to do so. This 2015 decision is similar to the Urgenda case in that the court found the government has a duty to prevent or specifically act on climate change. Yet it was also a unique victory; this was the first climate change ruling based on the constitutional right to life. It was also the first to order the government to implement a climate adaptation plan and establish a judicial commission to supervise and report back to the court on how the implementation is progressing.

3) United States

Foster v Washington Department of Ecology

This victory is part of a growing list of U.S. climate change cases coordinated and supported by Our Children’s Trust, an organization that aims to secure the legal right to a healthy atmosphere and stable climate for future generations. In June 2015, a Washington state court judge considered the petition of eight youth plaintiffs, which requested that the Washington Department of Ecology establish a rule to limit carbon dioxide emissions according to what scientists say is needed to protect oceans and climate systems. The judge ruled that the state government had a public trust duty to ensure its greenhouse gas emission standards are sufficiently stringent to protect children from the burden of future climate change emissions. In a further development this May, the judge ordered the state to bring in its new standards by the end of 2016. This case, like the other two, addresses the climate crisis based on scientific baselines and benchmarks. 

This article stems from the author’s May 2016 report, “Limiting Dangerous Climate Change: The Critical Role of Citizen Suits and Domestic Courts – Despite the Paris Agreement,” which can be viewed here.

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