The climate emergency is galvanising groups globally to use the courts to hold their governments to account and force them to take action to reduce emissions to a safe level.
Dutch courts take the lead
On 24 June 2015, the Dutch Urgenda Foundation saw the Hague District Court rule that the Netherlands government must take more action to reduce greenhouse gas emissions, so that by 2020 Dutch emissions would be ‘at least 25 percent lower than in 1990’. Following its current policy, reductions would be well below the 25–40 percent requirement for developed countries, according to climate science and international climate policy. Doing more was essential ‘to avert the imminent danger caused by climate change’. Consistent with its duty of care ‘to protect and improve the living environment’, the state must ‘effectively control Dutch emission levels’.
The state lost an appeal about the cost of the measures ordered by the court, which upheld the view that any reduction of emissions contributes to preventing dangerous climate change. The court stated instead that as a developed country, the Netherlands should take the lead. This is the first decision by any court in the world to order the state to limit greenhouse gas emissions for reasons other than statutory mandates.
On 14 January 2021, the Paris Administrative Tribunal followed suit. Oxfam, Everyone’s Business (Our Business for All), Foundation for Nature and Man (Nicolas Hulot Foundation) and Greenpeace, backed by over two million French citizens, joined to hold the French government to the 2015 Paris Agreement. The tribunal ruled in their favour.
On 24 March 2021, the Federal Constitutional Court said the German government was acting too slowly and taking insufficient action to honour its human rights obligations on climate change. It particularly damned the fact that reduced emissions would fall disproportionately on the coming generation. This forced the government to change its 2019 Climate Protection Act to ‘reduce greenhouse gas emissions by at least 55 percent by 2030, relative to 1990 levels’.
On 27 May 2021, the Australian Federal Court upheld a climate change and youth claim, too. Sadly, an appeal resulted in overturning the single judge decision, yet it remains open to consider the rationale and the possibility of a High Court reversal. The case related to a decision by the Minister for the Environment, under the Environment Protection and Biodiversity Conservation Act 1999, to approve extraction of coal from a mine. The applicants claimed the minister owes Australian children a duty of care in such a decision. They applied for an injunction restraining the Minister from granting mining approval. Initially, the Court upheld the duty of care, but refused the injunction.
The Court said duty of care is owed to children who could be impacted by climate change ravages, such as more intense bushfires, storm surges, flooding, cyclones, and other extreme weather events.
Evidence showed that, unlike today’s adults, today’s children will be alive and most susceptible to these harms. If CO2 concentration continues to increase, some harm is very probable, and cataclysmal harm is possible. As Australian children are vulnerable to a known, foreseeable risk of serious harm that the minister could control, but the children cannot, the minister has special responsibilities to them.
Despite the minister’s denial of responsibility, the Court recognised this ‘novel’ duty of care, arising from the relationship between minister and children. For the children, it was said that today’s adults ‘have gained both previously unimaginable power to harm tomorrow’s adults, and the ability to control that harm’. The government promptly appealed against the finding of a duty.
Another groundbreaking judgement from a Dutch court
On 26 May 2021, the Hague District Court ordered Royal Dutch Shell Plc to reduce its world-wide carbon emissions by 30 percent (as against its 2019 emissions levels) by 2030. Dutch law imposes a duty ‘not to act in conflict with ‘proper social conduct’. This ‘unwritten standard of care’, is an open norm that courts may interpret in light of prevailing social norms and conventions, and inherently evolves with time …’. This applied to Shell, it bearing an ‘obligation of result’ to reduce CO2 emissions generated worldwide by its group’s operations. Like the Australian government, Shell immediately appealed.
However, what is particularly riveting about the decision concerning Shell, is that it’s a decision against a private company, whereas all previous ‘duty’ decisions have related to government action (or inaction).
The role of the European Court of Human Rights
Perhaps even more compelling, is the case of Duarte Agostinho and Others v. Portugal and Others before the European Court of Human Rights. The case was filed on 2 September 2020 by six Portuguese youths, accusing thirty-three European countries of violating their human rights, including their right to life, by failing to take adequate steps to limit greenhouse gas emissions. The claim emphasises special protection of children, aiming to show that justice must not stop at borders. International law imposes a duty not to harm, and not allow companies within their jurisdiction to harm, the human rights of people outside their borders. The European Court should ‘rule on cases brought by people facing drought, heatwaves, fires and other climate-related harms, against foreign states party to the European Convention on Human Rights, and who have failed to take adequate steps to phase out greenhouse gas emissions’. Those affected by climate change ‘should not be prevented from making claims against governments other than their own’.
Could the courts help the world survive?
This wave of cases shows courts take seriously claims made by individuals and activists in recognition that climate and biodiversity emergencies are real. The United Kingdom government has obligations to ensure that all legislation, policies, budgets, and action relating to disaster risk reduction and climate change, are gender responsive and grounded in three core principles: equality and non-discrimination; participation and empowerment; accountability and access to justice.
That courts are taking governments to task, requiring concrete plans and action on them, brings into sharp relief the emptiness of words and promises from conferences like COP 26 and hollow government pledges. The courts could provide a way forward to give the world a fair chance of survival.