States and industries face more climate court action

By Paul Brown

LONDON, 15 June, 2017 – Governments that make promises they do not keep to cut greenhouse gases or to protect their citizens against climate change are finding themselves more frequently facing climate court action by their own citizens.

According to a UN environment (the United Nations Environment Programme, UNEP) report, climate change cases have been filed in 24 countries – with the US, with 654 individual cases, facing by far the largest number. Australia has seen 80 cases, the UK and the European Union Court of Justice 49 each.

In many cases it is the promises made by governments at the Paris climate conference in 2015 that are providing the legal arguments which campaigners are using in the courts.

These issues are complex and vary according to the legal system of the country involved. But many boil down to whether the government in question is doing its share to hold the average global temperature rise down to below 2°C, or as close as possible to 1.5°C, the primary promise the politicians made in Paris.

Another type of case involves human rights, the right to clean air, health, and protection from threats like sea level rise. Where governments have enacted legislation to protect the public but failed to implement it, citizens can sue them for their failures and ask the courts to order them to act.

“The delay and lethargy of the state . . . offend the fundamental rights of citizens”

A successful example of this came in September 2015 when a court in Pakistan granted the claims of Ashgar Leghari, a farmer, who had sued the national and regional governments for failure to carry out the National Climate Change Policy of 2012 and the Framework for Implementation of Climate Change Policy (2014-2030).

In this case it was not the failure to reduce greenhouse gases that was the issue – since Pakistan produces relatively small quantities – but the government’s failure to protect citizens against their effects.

The court ruled: “As Pakistan is not a major contributor to global warming it is actually a victim of climate change and requires immediate remedial adaptation measures to cope with disruptive climatic patterns.

“The delay and lethargy of the state in implementing the Framework offend the fundamental rights of citizens.”

As a remedy the court directed several government ministries to each nominate “a climate change focal person” to help ensure the implementation of the Framework and to present a list of actions by 31 December that year.

They also created a Climate Change Commission composed of key ministries, non-governmental organisations (NGOs) and technical experts to monitor the government’s progress. Later the court appointed 21 members of the commission and gave it a range of powers.

Environmental priority

In Colombia in 2016 a court protected a high altitude ecosystem, the paramos, which was under threat from development. The country’s Constitutional Court banned all mining operations in the paramos, putting the protection of the environment first and ending 347 mining licenses with rights in the ecosystem.

It ruled that the government was wrong to allow development and that the area should be protected – because to damage it would release carbon into the atmosphere and add to climate change.

In addition, 70% of the country’s drinking water comes from the region, and the court also ruled that the government’s statutory provisions allowing development were unconstitutional, because they would endanger the public right to clean water and relieve government agencies of their obligation to justify decisions certain to result in the degradation of environmentally sensitive and valuable areas.

Most of the cases have been brought in richer western countries, although the idea is spreading worldwide, the UNEP report says, with many more cases being filed in the last two years.

The countries involved (apart from those already named) are in order of the number of cases brought: New Zealand, Spain, Austria, Belgium, the Czech Republic, France, Germany, Greece, India, Ireland, Micronesia, the Netherlands, Nigeria, Norway, the Philippines, South Africa, Sweden, Switzerland and Ukraine.

International case law

Although all these cases depend on local conditions, some legal arguments are transferable to other jurisdictions and so are building up an international body of test cases, the report says.

The cases are being brought by individuals, environment groups and indigenous tribes, who  are frequently represented by public interest lawyers working for nothing or for tiny fees. So far, the report says, litigation has been more successful against governments, but large mining companies and fossil fuel producers are also facing legal action for developments that will add to climate change.

Local government can be a target too. In February a group of NGOs and individuals persuaded a panel of the Austrian Federal Administrative Court to overturn the approval by the government of Lower Austria for the construction of a third runway at Vienna’s main airport.

The reason they argued was that authorising the runway would do more harm than good, primarily because it would be contrary to Austria’s national and international obligations to mitigate the causes of climate change. It was also contrary to Austria’s own emission targets for the transport sector.

The UNEP report concludes that litigation in courts across the world has emerged as an important part of the ongoing efforts to promote climate change mitigation and adaptation efforts.

This is largely because of the growing number of national laws that address climate change directly and so provide “toeholds” for litigants to hold governments and companies to account. – Climate News Network