The tepid ambition of UN climate agreements, together with their plodding implementation, has provoked a growing global movement to remedy climate injustice through litigation. With over 1,000 actions believed to be under way, governments and corporations have been put on notice that the years of obfuscation and denial of responsibility have run out of road.
A long-running and widely-known example of litigation is Juliana v. United States, the action coordinated by Our Children’s Trust against the federal government. A group of 21 youngsters under the age of twenty argued that failure to reduce the combustion of fossil fuels violates their constitutional rights to life, liberty and property.
Whilst this action may ultimately fail, its profile of youthful plaintiffs and rights-based grievance relating to the impact of climate change is emerging as a potent combination. The most telling current examples have emerged in Europe. In Germany, youth activists persuaded the highest court that their long term freedom would be compromised by inadequate policies to reduce emissions. The German government responded almost immediately with more decisive climate policies.
A similar youth case in Norway was unsuccessful when the Supreme Court allowed the government to continue issuing licences for oil exploration in the Arctic. But another rights-based lawsuit has been submitted to the European Court of Human Rights arguing that the right to life is violated by excessive emissions. Presented by six young persons from Portugal, this case is significant in citing 33 of the countries under the court’s jurisdiction.
Even a conventional civil society challenge to the inadequacy of government action reached a favourable verdict by reference to the European Convention on Human Rights. Following the ruling by the High Court in The Hague on the lawsuit filed by the Urgenda Foundation, the Dutch government has been forced to ratchet up its target for emissions reduction.
These examples illustrate actions which seek either to demonstrate that government climate change policy is not being implemented, or that the policy itself is inadequate. A separate strand of actions target the oil majors, typically aiming to attribute responsibility for adaptation costs arising from destructive global warming, citing evidence of corporate denial of established science.
In the US the slow fuse of litigation against Exxon Mobil and other oil corporations struggled through the years in which the Trump administration was able to influence the process. Judgements are falling on the side of the fossil fuel companies, ruling that climate change is a matter for government policy and regulations, not the law courts.
A possible riposte to these setbacks has been opened up by the fast-evolving science of event attribution. Through analysis of datasets, scientists can now quantify the change in probability of an extreme weather event on account of climate change. The capacity to identify the fingerprint of global warming may clear a path for damage claims against governments and corporations.
The armies of corporate lawyers have finally met their match in the court in The Hague, the city hosting the headquarters of Shell. In a dramatic ruling, the court has ordered Shell to bring its emissions in line with the Paris climate targets. Once again the case hinged on the European convention on human rights.
more Climate Justice briefings (updated May 2021)
The Case for Climate Justice
Climate Justice in International Law
Climate Justice Finance
Loss and Damage
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