Governments and large entity corporations have a duty to citizens to prevent harm in discharging their respective job duties.
Climate change litigation refers to legal actions taken by individuals, groups, or organizations against governments, companies, or other entities for their alleged contribution to or failure to address climate change. In recent years, climate change litigation has become increasingly common in the EU, as individuals and groups seek to hold governments and companies accountable for their impact on the environment.
One notable recent development in climate change litigation in the EU is the landmark decision by the Dutch Supreme Court in the Urgenda case. In this case, the Dutch government was ordered to reduce its greenhouse gas emissions by at least 25% by 2020 compared to 1990 levels, based on the government’s duty to protect the human rights of its citizens. The ruling has been seen as a significant victory for climate activists and has spurred similar litigation in other EU countries.
The Urgenda case was a landmark case in that individuals were able to use the power of the Judiciary to press its government into action on climate related damages. As the Netherlands Judiciary established, the Judicial branch of the government is truly the most direct manner citizens in a democracy have to address grievances against the actions of a powerful executive and legislature.
Political parties and other powerful special interests groups have historically tried to suppress the independent nature of the Judiciary. Suppression of the Judiciary is a goal of the powerful have tried to implement for centuries. The first documented case of the corruption of the Courts is seen in the legal writings of Marcus Tullius Cicero. As a young lawyer in the Ancient Roman Courts, he made a name for himself as a defense lawyer winning an impossible acquittal of a fabricated case. In a long and divisive trial from 80BC to 79 BC he put on a relentless defense of Sextus Roscius who was being framed for murder.Cicero had a deep dive into the destruction of the independent Courts by the powerful few. In 56BC Cicero wrote two legal books that have strong implications in today’s political and judicial operations,The Laws and The Republic. In essence Cicero presents the case that society thrives when the less powerful can assert their grievances before independent Judges who are not contained or corrupted by the powers that rule the day in executive and legislative bodies. Cicero lived and was assassinated during the turbulent times of a power grab between the Emperor and the Senate. The Courts were rendered feckless through corruption and political based destruction. The model of the haves ruling over the have nots, in which all disorder that derives from that model is criminalized is the path to societal destruction, as proven by the demise of the Roman Empire.
An examination of the body of analytical persuasion that is presented in Cicero books identifies the delicate balance that must be nurtured in democratic societies. Throughout the history of societal governance the struggle between the haves and the have nots tends to lead to a move to constrain the independent role of the Courts. The assault on the Courts are usually rapped up behind “lofty goals”. Terms meant to cower Courts, are ,”Judicial Activist”, “Purge the Courts of Corruption”, “Unelected Judges” and “Elitist out of touch Judges”.
The rhetoric against the courts rise as a case is brought or decided against a powerful interest group. Complicating the tension is a body of legal expertise that believe democracy is best exercised in legislature bodies. In the wake of the Urgenda decision, respected legal scholar, and Rotterdam based Evert F Stamhuis wrote in the article, A CASE OF JUDICIAL INTERVENTION IN CLIMATE POLICY: THE DUTCH URGENDA RULING. In The Article, the Urgenda decision is challenged
“In June 2015, the Court of First Instance in The Hague, Netherlands caused national and international commotion with its ruling in the high profile case of Stichting Urgenda v Government of the Netherlands (Ministry of Infrastructure and Environment) of 24 June 2015.The judgment was reported as an outright victory for climate activists. By ordering the Dutch Government to step up its climate policy, the Court intervened in matters of government in a way that is uncommon and highly contested. The Court based the order on a duty of care resting on the State. Remarkable observations regarding the international climate policy instruments”
Despite the genuineness of legal scholars such as Evert F Stamhuis, the fact is the legislature should not be the final institution for the exercise of democracy. Powerful Special Interests groups have been buying and selling democracy in legislative bodies since the ancient Courts of Rome and Greece. The retort that is often chanted is that the people can vote compromised politicians out. But there are some issues that are so crucial the citizens can’t afford to sit around until the next election cycle.
Climate change and the deleterious threat it poses to the citizenry, especially the have-nots, warrants the escalation of the climate change discussion. The courtroom is the most appropriate venue. As Cicero wrote so many centuries ago, it is the only means a citizen has to directly engage the government. The legislative representative by definition is challenged by multiple duties and issues. The citizen must first argue the case to the representative and hope it will be acted upon. The representative may have to shelve the issues in favor of other issues of government. In court the marginalized control the discussion points and are front and center with a governing body. As COP 27 fades into legislature and executive platitudes and limited action, the young, who will ultimately pay the bill for the inaction, are turning to the Courts out of a drive for survival.
Globally, the cumulative number of climate change-related cases has more than doubled since 2015, bringing the total number of cases to over 2,000. Around one-quarter of these were filed between 2020 and 2022.
Climate litigation has become an instrument used to enforce or enhance climate commitments made by governments, with 73 ‘framework’ cases challenging governments’ overall responses to climate change
In addition to the Urgenda case, there have been several other notable climate change cases in the EU in recent years. For example:
In Germany, the Federal Constitutional Court ruled in April 2021 that the country’s climate protection law was unconstitutional in part because it lacked specific targets for reducing emissions after 2030. In Neubauer, et al. v. Germany young residents feared the government were not addressing climate change seriously. They filed a legal challenge to Germany’s Federal Climate Protection Act (“Bundesklimaschutzgesetz” or “KSG”) in the Federal Constitutional Court, arguing that the KSG’s target of reducing GHGs by 55% until 2030 from 1990 levels was insufficient. The complainants alleged that the KSG therefore violated their human rights as protected by the Basic Law, Germany’s constitution.
In France, several NGOs are currently suing the government for failing to take sufficient action to address climate change, including the alleged failure to meet the country’s emissions reduction targets.
The growing number of climate change lawsuits in the EU has significant implications for businesses and governments. Companies that are perceived to be contributing to climate change may face reputational risks and legal challenges, while governments may face pressure to adopt more ambitious climate policies and targets.
The youthful litigants in Europe are joined by young Plaintiff’s in Asia, who are fear the special interests groups are ignoring the urgency of climate change. Kim Seo-kyung a youthful activists leader with Youth4ClimateAction filed the first climate lawsuit in Korea’s constitutional court in Seoul, arguing that their government’s efforts to curb emissions fell far short of what was required.
In early April 2023, Judges across Africa met in Nairobi to prepare Courts across the continent for climate change litigation. Interesting point that developed at the Nairobi conference is how some leaders expressed the idea that the Courts were in a better position to develop instructive orders to the legislature on climate policies. The basis of this view is the distinct advantage court cases have in collecting evidence and expert opinions in a concentrated time- specific schedule.
The thoughtful judicial educational approach in the Nairobi conference is being matched in the US,” As the body of climate litigation grows, judges must consider complex scientific and legal questions, many of which are developing rapidly. To address these issues, the Climate Judiciary Project of the Environmental Law Institute is collaborating with leading national judicial education institutions to meet judges’ need for basic familiarity with climate science methods and concepts.” (Washington DC based Environmental Law Institute)
Youthful climate activists won a significant victory in Brasília.
In July, Brazil’s high court ruled that the government has a constitutional duty to allocate the necessary economic resources to support the operation of its Climate Fund, a tool created to combat the climate crisis, which has been paralyzed in recent years.
Young Climate activists have a significant belief that climate change poses a long term threat to their existence. The legislature paralysis, as noted by the Brazilian Court, is a waste of time and resources.The youthful litigants are able to participate directly in governance on an immediate basis through an independent Judiciary.
The concern is whether the powerful special interests groups will derail this global litigation for change and cut deeper into the retreat goals that is a threat to the independent court. History is not good in providing an answer to this concern. But hope springs eternal. The Millennials and Gen Z’s are not standing down.
