Judging Climate Change: The Role of the Judiciary in the Fight Against Climate Change

3.2.1 Urgenda v The United Kingdom of the Netherlands

The case of Urgenda v The United Kingdom of the Netherlands has become central to the discussion of the role of the judiciary in climate policy. In 2015, the NGO, Urgenda, sued the Dutch state for breaching its duty of care and violating the fundamental human rights of 886 individual plaintiffs.⁴⁷ The plaintiffs claimed that the Dutch state did not take sufficient measures to reduce greenhouse gas (GHG) emissions. The court accepted the prevailing claim of duty of care by the plaintiffs and found in favour of Urgenda. In December 2019, the Supreme Court of the Netherlands upheld the previous decisions by the Court of Appeal (2018)⁴⁸ and the District court (2015), in favour of Urgenda. It found that the state had violated its duty of care, and that the emission reduction targets were to be readjusted to at least 25 percent by 2020.⁴⁹ It became the first case in the world to establish a court-ordered duty to cut GHG emissions to a minimum threshold level in order to prevent dangerous climate change.⁵⁰

3.2.2 The Reasoning of the Courts

The reasoning of the three courts in Urgenda merits some discussion as it differs in some aspects from other notable climate cases. The prevailing claim that was initially accepted and confirmed by all court instances was that the state had a duty of care, while the approach in relation to fundamental human rights did not succeed.⁵¹ The court in the first instance found that Urgenda could not itself rely on Articles 2 and 8 of the European Convention of Human Rights (ECHR), and that it did not have sufficient information to assess the claims of the 886 individual complainants.⁵² Even though this court did not rely on the fundamental rights argument in this particular case, it did not explicitly reject it. Furthermore, references to the rights in the ECHR were still held relevant in relation to determine whether the duty of care was breached.⁵³

In the first instance, the court reinterpreted the national legal doctrine of hazardous negligence in the Dutch civil code, and found that climate change could fall within this doctrine.⁵⁴ Furthermore, the higher courts confirmed the district court in forming its judgment on the basis of open standards of due care, interpreting the Dutch civil code through climate science, international climate policy, and principles of international law.⁵⁵ Among these were the use of scientific findings reported in the IPCC Assessment Reports, which guided the final orders reached by the court. The state objected to the use of the IPCC Assessment Reports’ maximum temperature increase as a legally binding threshold and claimed that even though the Netherlands had frequently recognised the necessity of staying under the 2 degrees Celsius threshold, this did not create a legally binding obligation.⁵⁶ All court instances disagreed.

3.3.3 Critique of Urgenda

The reasoning behind the judgments in all instances has been criticised on many points. The government of the Netherlands argued since the beginning that its reduction targets were in line with EU policy, and that the judicial interference therefore constituted a violation of the separation of powers.⁵⁷ Furthermore, it claimed that the targets should be negotiated through multilateral talks, and that a judgment in Urgenda’s favour would weaken the Dutch government’s negotiating power.⁵⁸ Subsequent critique of Urgenda in the first instance claimed that the lack of guidelines on how to decide on climate change cases should have led the judiciary to reserve their will to adjudicate.⁵⁹ By not reserving their will to adjudicate, the judges arguably chose judicial activism. The critique claims that this can serve to render the boundaries between the executive and the judiciary more diffuse, and threaten central values of democracy. Some also argue that such strategic litigation on climate change is misusing the legal system for political purposes.⁶⁰

Claims are also made that the judges in Urgenda did not sufficiently consider the potential backlash of making a precedent that could open the doors to social justice litigation and increase the possibilities of suing governments for policies they enact.⁶¹ This opposition to judicial interference in climate policy to some extent reflects the outcome in the Norwegian climate case pending before the Norwegian Supreme Court towards the end of 2020.⁶² The Norwegian case is discussed further in section 3.5.

3.2.4 In favour of Urgenda

Despite criticism, the landmark case helped to hold the Dutch government accountable to its interntional climate change commitments. Those in favour of the decision claim that even though the decision was progressive, it was still based on existing principles of law.⁶³ The Court of Appeal and the Supreme Court in Urgenda referred to their constitutional duty to apply provisions of the ECHR directly. As their finding largely relied on the IPCC Assessment Reports to interpret the state obligations, the judgment may encourage other tribunals to view these as authorities on climate justice. Furthermore, the judges did not consider all matters of climate policy to be within their competence, and left it to the government to determine how to implement the 25% target.⁶⁴ As emphasised by Burgers, ‘[t]he Dutch State has numerous options for achieving compliance, including reducing maximum speeds on highways, imposing a carbon tax, encouraging solar panel use or rooftop gardening, and improving energy efficiency.’⁶⁵ The plaintiffs simply argued that the correct interpretation of the law includes a minimum emission reduction target of 25%,⁶⁶ and this is what the courts confirmed.⁶⁷

3.2.5 Advancing Climate Policy Beyond Urgenda

Three years after the first decision in Urgenda, the UN Human Rights Committee confirmed that the right to life as enshrined in the International Covenant on Civil and Political Rights (ICCPR) also includes positive obligations for States to act against dangerous climate change.⁶⁸ As such, the claim of the plaintiffs in Urgenda now has an even stronger foundation than it did in 2015. Additionally, the rising number of climate cases in countries around the world⁶⁹ indicate a growing consensus that a healthy environment is a constitutional matter, and therefore a prerequisite for democracy.⁷⁰ Such climate cases may in fact secure the State’s ability to provide public goods in the long term where the government has failed to sufficiently ensure this. Furthermore, by advocating for future generations, climate cases can protect those with no voice.⁷¹ As a response to the final Urgenda judgment, the UN High Commissioner for Human Rights published a press release noting that ‘the decision confirms that the Government of the Netherlands, and, by implication, other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases.’⁷²

3.3.1 Friends of the Irish Environment v Ireland

Inspired by the success of the Urgenda case, individuals, NGOs and companies in other countries have taken legal action against governments and their environmental policies. On 22 January 2019, the environmental NGO ‘Friends of the Irish Environment’ brought a case to the Irish High Court to quash the country’s National Mitigation Plan.⁷³

The plaintiffs argued that the National Mitigation Plan violated Ireland’s Climate Action and Low Carbon Development Act, its Constitution, and Articles 2 and 8 of the ECHR. Their main claim was that the government had not taken sufficient action to ensure that emissions were reduced in the short- and medium-term to comply with international targets. The respondent claimed that the National Mitigation Plan is not subject to judicial review since it does not grant rights or impose obligations,⁷⁴ and that even if it was justiciable, the government acted within its prescribed margin of discretion.⁷⁵ Moreover, the respondent claimed that the plaintiff does not have legal standing.⁷⁶

On 19 September 2019, the Irish High Court delivered its verdict, in favour of the government.⁷⁷ It denied the NGO’s claim that the National Mitigation Plan was insufficient to achieve the short- and medium-term reduction emissions and held that the government exercised its due discretion.⁷⁸ The Court admitted that the NGO has legal standing,⁷⁹ however, it rejected the claim of violation of national and international law.⁸⁰

On appeal, however, the Irish Supreme Court reversed the first ruling and decided on 31 July 2020 to quash the National Mitigation Plan.⁸¹ The Supreme Court held that the Plan is insufficient to ensure that Ireland can achieve its 2050 climate goals.⁸² Contrary to the decision of the Dutch Court in Urgenda, however, the Irish Supreme Court held that the NGO lacked legal standing to bring claims under the ECHR or the Constitution.⁸³

This recent case demonstrates that the direction courts are taking so far, especially in the European context, is towards a more active judicial involvement in climate cases. It demonstrates again that legal action taken against the government and its environmental policies by individuals, NGOs, and companies can make a difference in the climate change regime.

3.4.1 Juliana v the United States of America

The rise of climate litigation is, however, not only a European phenomenon. In the United States, more and more climate and environmental cases have surfaced over the past years. One of the most controversial cases in this regard is Juliana v United States. A group of young activists between the ages of eight and nineteen, an association of young environmental activists, and a ‘guardian for future generations’ filed an action against the US government in 2015.⁸⁴

The plaintiffs alleged that although the government has been aware of the negative impacts on the environment when burning fossil fuels, it has ignored this knowledge and thus ‘deliberately allow[s] atmospheric CO₂ concentrations to escalate to levels unprecedented in human history.’⁸⁵ The plaintiffs thus argued that the government violated their substantive due process rights (right to life, liberty, and property) and the public trust doctrine (under which certain natural resources must be protected for the citizens and future generations).⁸⁶ They requested an order which prohibits the government from violating these rights and directs it to develop a plan to reduce emissions.⁸⁷ The US government, on the other hand, asserted that these claims should be dismissed due to lack of standing and a lack of jurisdiction, maintaining that this dispute contained a non-justiciable political question.

In 2016, Judge Aiken of the US District Court of Oregon ruled in favour of the plaintiffs, stating that this case does not contain a non-justiciable political question but, at its core, concerns the plaintiffs’ constitutional rights, an issue which ‘is squarely within the purview of the judiciary.’⁸⁸ Furthermore, Aiken held that the plaintiffs had standing since they demonstrated that (1) they suffered an injury in fact, (2) this injury was traceable to the defendant’s conduct, and (3) a court decision would redress this injury.⁸⁹ Judge Aiken’s decision thus sparked high hopes that Juliana would serve as a stepping stone for the US government to change its climate policy.⁹⁰

Nonetheless, after overcoming several procedural roadblocks,⁹¹ the case eventually ended up in the Ninth Circuit Court of Appeals. On 17 January 2020, it reversed Judge Aiken’s decision and dismissed the case due to a lack of standing.⁹² The Court held that the third requirement (redressability) was not fulfilled in this case. It argued that it is not in the court’s power to order a plan involving ‘complex policy decisions’, and, as a consequence, the Court decision would not redress the injury.⁹³ The issue in question, the Court argued, has to be solved within the executive branch.⁹⁴

However, Judge Stanton, in a dissenting opinion, stated that the plaintiffs presented sufficient claims under the Constitution and have standing because ‘a court order – even one that merely postpones the day when remedial measures become insufficiently effective – would likely have a real impact on preventing the impending cataclysm’ and would thus satisfy the redressability requirement.⁹⁵ As such, she would affirm the District Court’s decision.

3.4.2 Juliana and US Climate Policy

In sum, this case has demonstrated that US courts place a high value on the separation of powers, possibly a higher value than on the protection of the environment. Although the Ninth Circuit conceded in Juliana that ‘climate change is occurring at an increasingly rapid pace’⁹⁶ and that the other branches have ‘abdicated their responsibility to remediate the problem’,⁹⁷ it emphasised that this does not mean that power is conferred on courts to ‘step into their shoes’.⁹⁸ Thus, Juliana made clear that US courts lack the power (and perhaps also the desire) to order an effective remedy in environmental cases, even when such inaction compromises constitutional or human rights. Thus, it can only be hoped that the government sees this as a wake-up call to change its policy in order to protect not only the environment, but also the constitutional and fundamental rights of its citizens.

3.5.1 Greenpeace Nordic Ass’n v Ministry of Petroleum and Energy

Opposition to judicial interference in climate policy is to some extent reflected in the Norwegian climate case which has recently been appealed to the Norwegian Supreme Court.⁹⁹ A group of NGOs (Young Friends of the Earth, Greenpeace, Grandparents Climate Campaign, and Friends of the Earth Norway) filed a petition seeking a declaratory judgment against the Ministry of Petroleum and Energy of Norway for its decision to grant petroleum production licenses in the Arctic Barents Sea.¹⁰⁰

The claim forwarded by the NGOs is that the Norwegian government’s decision to licence searching and drilling for oil in the Arctic Barents Sea is illegal under Norwegian law.¹⁰¹ Specifically, they claim that the decision violates Article 112 of the Constitution.¹⁰² Article 112 states that ‘[e]very person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained’.¹⁰³ The plaintiffs also asserted that emissions from Norwegian oil abroad are relevant for the court’s assessment of whether Article 112 has been violated.¹⁰⁴ The government countered the plaintiff’s claim and argued that Article 112 is a collective right and thus bars an individual claim to the right to a healthy environment.¹⁰⁵ The government also claimed that it had made a valid environmental impact assessment and that emissions abroad should not be a factor in that assessment.¹⁰⁶

On 4 January 2018, the Oslo District Court found that Article 112 provided an individual right but that the state had not violated that right.¹⁰⁷ The District Court determined that the state had fulfilled its necessary duties before awarding the licence, proven by the fact that the Norwegian Parliament took into account the arguments for and against the new licenses before its final decision to award the license.¹⁰⁸ The District Court also ruled that emissions from exported oil and gas are irrelevant when assessing whether the licensing is a violation of the right to a healthy environment.¹⁰⁹

The NGOs appealed the decision to the Court of Appeals asserting that the District Court’s interpretation of Article 112 was too restrictive.¹¹⁰ Although the Court of Appeals did not overturn the lower court ruling, it did provide insight into the direction of potential future litigation. On 22 January 2020, the Court ruled that the right to a healthy environment enshrined in the Constitution provided standing for the violations alleged.¹¹¹ Additionally, the Court rejected the District Court’s ruling by declaring that Norway’s obligation of the right to a healthy environment extends to the environmental harm of its exported oil.¹¹² Nonetheless, the Court held that the threshold for a violation of Article 112 is high and that courts should exercise restraint in reviewing decisions by political branches.¹¹³ Ultimately, the Court of Appeals affirmed the District Court’s decision that the licenses were valid.¹¹⁴ Thereafter, the plaintiffs appealed the decision once more and the Norwegian Supreme Court granted leave on 20 April 2020.¹¹⁵ The case was heard in November 2020, and, although the Supreme Court has not set a judgment date, it could be declared as early as December 2020 or January 2021.¹¹⁶

4.1.1 Shaping Jurisprudence to Tackle Climate Change

The plaintiffs’ lack of standing in Juliana is not to be understood as a lack of judicial power regarding climate change policies. Although the judicial system lacks legislative power in the traditional sense, judges do have the ability to shape jurisprudence so that it accommodates a certain climate change narrative, and in this way act on behalf of legislators. We see this exemplified in 2007, when the Massachusetts Supreme Court ruled that under § 202 of the Clean Air Act, the US Environmental Protection Agency (EPA) had the authority to regulate the emission of GHG.¹²⁵ The legislative role the court is able to exercise through its jurisprudence is limited to where the court finds basis in existing national or international law.¹²⁶ The judicial system is unable to invent new rights, or make new laws, without the necessary legal basis in already existing law. However, as the judicial system has the exclusive right to interpret applicable law, it has the power to influence the application of the law in the way the judiciary finds most appropriate.¹²⁷

The courts’ inability to advance climate policy without a legal basis became apparent in American Electric Power v Connecticut. In this case, the US Supreme Court ruled that private corporations cannot be sued for emissions of GHG, under current applicable law in the United States.¹²⁸ The reasoning was that the Clean Air Act already delegated the management of GHG emissions to the EPA, which, as mentioned above, had been given the authority to regulate the emission of GHG.¹²⁹

As demonstrated in the above cases, and arguably in the case of Urgenda, the courts do not have the power to directly change applicable law. However, a wide function has been given to the courts in their role of interpreting the law. In that role, the courts have the possibility to shape jurisprudence in a way that can be conducive to progressive climate policies, as shown in Urgenda.

4.1.2 Separation of Powers

The main argument brought forward against the judiciary’s involvement in climate change policies is clearly the separation of powers, which raises questions about the legitimacy of courts in tackling those matters. As climate change issue resolutions must take into account complex harms and broad ecological and economic considerations affecting an entire society, it is questionable whether a court is capable of deciding on a proper solution.¹³⁰ It is imperative that courts are not ‘assigned with tasks that are more properly accomplished by other branches’.¹³¹

For example, the judgement in the Urgenda case demonstrates how a court is limited to interpret existing law, and changing that law is outside of its powers. If Urgenda is indicative, the ability of a court is limited to controlling the degree to which the actions of the legislative and administrative branches conform with the existing law. The judiciary has no legal basis to issue climate change policies, especially in light of the separation of powers.

Yet, as seen in the Climate Case Ireland, it is possible for a court to make the legislature aware that its legal obligations in prevailing climate change policies are not fulfilled. When comparing Juliana, Urgenda and the Climate Case Ireland, it is necessary to highlight that the separation of powers is interpreted differently across jurisdictions. As already mentioned, the US has a more rigid interpretation of the separation of powers than the Netherlands for example.¹³² The relation between the trias politica in the Netherlands is not a strict separation of powers but rather a balanced system in which the judiciary reviews the legality of governmental actions in individual cases.¹³³

If the selected cases in this paper are indicative, the different interpretations of the separation of powers shows that US courts may be more inclined to let the political question doctrine stop them from being more progressive. By contrast, in the selected European judgments, the judiciary overcomes such obstacles with progressive judgments. And, as shown in Urgenda and the Climate Case Ireland, there may be more room for judicial branches in Europe to demand compliance from the legislative power to follow emission goals.

4.1.3 Courts’ Lack of Expertise on Climate Change

Other concerns over the judiciary ordering the legislative and executive branches on what to do are based on the courts’ lack of expertise in the field of regulating GHG emissions. This was evident in the US Supreme Court’s decision in American Electric Power v Connecticut. The question dominating that case was whether the judiciary has the tools to regulate GHG emissions using tort litigation.¹³⁴ In the Court’s opinion, ‘judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.’¹³⁵ Rather, the Court views the EPA as appropriately responsible for regulating GHG emissions.¹³⁶

The US Supreme Court has also made it clear that determining appropriate GHG emissions, along with the economic and national security implications of curtailing these emissions,¹³⁷ is ‘consigned to the political branches, not the judiciary.’¹³⁸ Furthermore, the trial court in American Electric Power v Conneticut stated that the issue of regulating GHG emissions clearly needs non-judicial discretion.¹³⁹

In response to the decision commentators highlighted a range of other factors that, in their opinion, call for less judicial involvement in GHG emissions regulation. First, they pointed out that different emission limits should be set for different companies or industries as a general emission limit, applicable to everyone, would be unreasonable.¹⁴⁰ Secondly, worries arise that GHG emission regulation by the judiciary would have a significant financial impact on consumers and businesses. Such regulation would increase the costs of generating electricity, thereby curtailing energy output, and energy producers would be tempted to relocate operations outside of the reach of the relevant GHG regulation.¹⁴¹ It has also been suggested that the US Congress should mindfully figure out reforms that set GHG emission limits and goals while simultaneously ensuring inexpensive energy supply.¹⁴² Additionally, it is claimed that courts would not consider the impact of their judgments on government assistance programs, such as the Low-Income Home Energy Assistance Program.¹⁴³ Finally, the fact that courts are likely to choose GHG emission limits that are not suitable for every company or industry would, it is claimed, lead to non-compliance by some utilities which could in turn lead to significant energy shortages.¹⁴⁴

As the same commentators have pointed out, the United States focuses on use of energy sources capable of large-scale production, which are comparably inexpensive, namely fossil fuels such as coal, oil and natural gas.¹⁴⁵ This can lead to difficulties in compliance with emission limits set by courts as the technology for reducing fossil fuel emissions may not be available or economically feasible within the deadline set by a court.¹⁴⁶

In conclusion, the separation of powers and the incapability of courts to handle broad and complex climate change policy questions dominate the argument that the judiciary should avoid ordering legislative and executive branches what to do.

4.2.1 The Creation of a Fundamental Right

In the course of a few decades, the international legal regime on climate change has developed as a slow-paced revolution. The increasing focus on climate change strengthens policies aimed at protecting the lives of future generations and biodiversity, building up to the creation of a right to a healthy environment. The role of the judiciary within this process is rapidly evolving. As the number of cases concerning climate change litigation increases, alongside the growing popular concern for the environment, we may likely see more courts pronouncing a healthy environment as a fundamental right. This increased focus can clearly be seen in the media and public discourse in the US and Europe, but more initiatives are taking root within the legal sphere and outside the Western hemisphere. A strong example of this is the case of Leghari.

4.2.2 The case of Leghari

The same year the district court heard the Urgenda case, a similar case was being heard in Pakistan. In Ashgar Leghari v Pakistan, a farmer sued the Pakistani government for its failure to carry out the National Climate Change Policy (NCCP) that had been adopted three years earlier, as well as the Framework for Implementation of Climate Change Policy. The Lahore High Court found that the delay in implementing the Framework offended the ‘fundamental rights of the citizens’, and that these need to be safeguarded.¹⁴⁷ In furtherance of this, it ordered the government to take numerous specific actions to remedy the offence. These included, among other measures, to create a Climate Change Commission and monitor the implementation of the NCCP, as well as ordering relevant public institutions to prepare a list of adaptation action points that could be achieved by the end of the year 2015.¹⁴⁸ The Pakistani judgment in Leghari is seen by some to have been even more progressive than the Urgenda case, although this may be due to the wider acceptance of public interest litigation in Pakistan.¹⁴⁹

4.2.3 The Oslo Principles

Jaap Spier, Advocate General for the Supreme Court of the Netherlands, has claimed that such lawsuits may be ‘the only way to break through the political indifference regarding climate change’.¹⁵⁰ After the first judgment in the Urgenda case, and in the same year as the Leghari case, further climate change related legal initiatives developed. A group of legal experts initiated the Oslo Principles on Global Climate Change Obligations.¹⁵¹ The principles point out the various legal avenues for compelling governments to take measures on climate change. They are also meant for politicians who want to push for progress on climate policy. The principles contain legal arguments that are, to some extent, in line with the arguments used in the Urgenda case.¹⁵² The group behind the Oslo Principles claim that there is a permissible quantum of emissions per capita that will not threaten a 2 degrees Celsius increase, and that this can be used to define and quantify the obligations upon states in relation to climate measures.¹⁵³

As such, we see a rise of legal experts and prominent scholars supporting the judiciary in adjudicating on cases concerning climate change policy.¹⁵⁴ As climate regulations solidify into international and national law, it may increase the possibilities to overcome collective action problems and develop the right to a healthy environment into a fundamental right.