Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
By Chloe Allen
Section Editor for Environmental Law
Litigation is undeniably becoming a crucial element of efforts to combat climate change, driven by the growing public awareness and concern of the risks that climate change poses. It is irrefutable that climate change litigation has previously been a largely American phenomenon, with 1,200 of the reported 1,500 related actions worldwide being filed in the United States. [1] This is arguably completely unsurprising in light of the overwhelming scepticism presented by Donald Trump. However, due to many governments’ failure to take adequate and appropriate action, cases have recently proliferated as a means of motivating change. Revelations that fossil fuel producers have known about the impact of carbon emissions since the 1980s, and possibly even earlier, and have engaged in misinformation and deception campaigns have meant that not only governments but also corporations have been increasingly subject to these lawsuits. [2]
Climate change litigation cases can be divided roughly into two broad categories: strategic cases, and routine cases. Strategic cases could be said to have a visionary approach, that aim to influence public and private climate accountability. These cases are often high-profile, as parties aim to leverage the litigation in order to instigate a broader policy debate and change. A crucial example here is Urgenda Foundation v State of the Netherlands, which was the first case to argue successfully for the adoption of stricter emissions reduction targets by a government. [3] While the ruling of the Dutch Supreme Court that determined that each state “is obliged to do its part in order to prevent dangerous climate change, even if it is a global problem,” this is arguably not a convincing enough argument to drive real change in the climate law legislation field. [4] For an extended period of time it was uncertain whether even the state of the Netherlands would comply with the judgment, not even whether the international community would take the crucial ruling into consideration; non-compliance by the state would be the ultimate litmus test of the rule of law. It could be maintained that in the most likely scenario, in the near future courts will “have to choose between courage and realism, or perhaps … fatalism.” [5] If they opt for judgments required to achieve the almost universally adopted goals within the framework of a strategic litigation case, the defendants will be required to take far-reaching and costly measures, which will evidently lead to a lack of simple compliance. If this sobering forecast would come true, climate change will not only result in the expected global catastrophe but could also fundamentally change the rule of law.
Routine cases, in comparison, are less visible cases dealing with, as an example, planning applications or allocation of emissions allowances under schemes like the European Union emissions trading system. [6] These cases tend to expose courts to climate change arguments where, until recently, the argument would likely not have been framed in those terms. Routine cases might also have some impact on the behaviour and decisions of governments or private parties, even if this is incidental to their main purpose. [7] Despite this broad division, I would affirm that recent developments in climate change litigation do not fit neatly into either category, which is undoubtedly very rare and innovative, and could arguably add to the ineffectiveness of climate change litigation wholly. A prime example of this is the recent inclination to frame climate change claims with a basis of human rights obligations, however I am going to focus on the recent declaration by the Court of Appeal that the expansion of Heathrow Airport would be unlawful on climate change grounds. [8] Heathrow Airport is already the United Kingdom’s largest single source of carbon emissions, and a third runway would result in an extra 700 planes per day passing through; this would undeniably mean greater emissions levels deriving from an already highly exposed area. [9]
The ruling by three Court of Appeal judges affirmed that the Paris Agreement ought to have been taken into account when the government signed off its policy favouring the development in 2018, but it was not – this demonstrates the visionary approach which strategic cases aim to have. The decision is thought to be the first major legal ruling in the world based on the Paris Agreement, which is particularly significant because the treaty does not form any part of the United Kingdom’s domestic law – this highlights the evolving ways in which climate change arguments can successfully be framed. This decision seems to fit the typical climate change litigation trends which have been developing over recent years. For cases outside of the United States, 58% cases have had outcomes which were favourable to climate change action, 33% had unfavourable outcomes, and 9% had no discernible likely impact on climate policy. [10] In direct comparison, in the United States, an analysis of outcomes of 973 climate lawsuits between 1990 and 2016 have found that, for those which have been decided and for which data is available, more outcomes favoured hindering positions compared with favourable positions, with a ratio of about 1:4:1. [11] The major difference is expected, since the Trump Administration has undertaken an extensive programme of climate change deregulation since the start of its mandate. [12]
Despite crucial decisions being made at a time when public concern about the climate crisis is rising fast and the world is aiming for decarbonisation, [13] evidence on the impacts of climate change litigation is still mostly anecdotal. [14] In part, this reflects the more general challenge of assessing the impact of any litigation beyond the courtroom, especially given that many cases are still ongoing. The burgeoning state of climate change litigation exacerbates this challenge exponentially. As with all avenues to tackle climate change, litigation is nuanced and can have a variety of subsequent effects, however I would affirm that currently, while this is becoming a growing phenomenon, it is not having an overwhelmingly effective impact.
Sources:
Climate Change Litigation: Tackling Climate Change Through the Courts (2019) <https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2019/10/growing-the-green-economy-climate-change-litigation.pdf> accessed on 15 November 2020
K Theil, An Update on Climate Change Litigation – No Signs of Cooling (2020) <https://www.leighday.co.uk/Blog/August-2020/An-update-on-climate-change-litigation-no-signs> accessed on 15 November 2020
Urgenda Foundation v State of the Netherlands [2015] HAZA C/09/00456689
J Spier, The Strongest Climate Ruling Yet: The Dutch Supreme Court’s Urgenda Judgment (2020) Netherlands International Law Review 67, 319-391 <https://doi.org/10.1007/s40802-020-00172-5> accessed on 27 November 2020
Ibid.
J Setzer and R Byrnes, Global Trends in Climate Change Litigation: 2020 Snapshot <https://www.lse.ac.uk/granthaminstitute/publication/global-trends-in-climate-change-litigation-2020-snapshot/> accessed on 15 November 2020
K Bouwer, The Unsexy Future of Climate Change Litigation (2018) Journal of Environmental Law 30(3), 483-506
Friends of the Earth Wins Campaign to Protect the Climate from Heathrow Third Runway (2020) <https://www.leighday.co.uk/News/Press-release-2020/February-2020/Friends-of-the-Earth-wins-campaign-to-protect-the> accessed on 15 November 2020
J Timperley, Could Heathrow Airport Expansion Ruling Set a Climate Precedent? (2020) <https://chinadialogue.net/en/climate/11906-could-heathrow-airport-expansion-ruling-set-a-climate-precedent/> accessed on 15 November 2020
Ibid n(6).
S McCormick et al, Strategies In and Outcomes of Climate Change Litigation in the United States (2018) Nature Climate Change 8, 829-833
<http://colombiaclimatelaw.com/resources/climate-deregulation-tracker/> accessed on 15 November 2020
D Carrington, Heathrow Third Runway Ruled Illegal Over Climate Change (2020) <https://www.google.co.uk/amp/s/amp.theguardian.com/environment/2020/feb/27/heathrow-third-runway-ruled-illegal-over-climate-change> accessed on 15 November 2020
J Setzer and L C Vanhala, Climate Change Litigation: a Review of Research on Courts and Litigants in Climate Governance (2019) WIREs Climate Change <https://doi.org/10.1002/wcc.580> accessed on 15 November 2020
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