Urgenda decision upheld: victory for citizens’ climate rights comes just ahead of Juliana v. United States

urgenda-logoOn October 9, the Hague Court of Appeal upheld the lower court ruling in the landmark case of  Urgenda Foundation v. The State of Netherlands , which in  2015 was the first case in the world to rule that governments have a “duty of care” to protect their citizens against climate change. The 2015 ruling ordered the Dutch government to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels).  The Urgenda Foundation press release is here ; a compilation of documents by the Foundation, including the text of the decisions, is here  and an English-language Explainer is here.  The article in Climate Liability News expands on the global importance of this decision, which has inspired other court challenges in U.S., NorwayPakistanIreland,  Belgium, Colombia, Switzerland and New Zealand.

see you in court tshirtThe Urgenda decision comes just as the highly- publicized Juliana v. United States case proceeds to its next court appearance on October 29.  Juliana vs. the United States was originally filed in Oregon in 2015 under the Obama administration, and argues that the 21 young plaintiffs have constitutional rights to life, liberty and property, which are currently jeopardized by federal climate change policies.   It is led by Our Children’s Trust and has been called “the trial of the century” and has received media attention throughout the ongoing challenges from the federal government.

New podcast series celebrates women fighting climate change

MothersOfInvention_PressShot_11A new, optimistic initiative called Mothers of Invention  was launched in July, led by Mary Robinson, former Prime Minister of Ireland and a well-known climate justice campaigner. Maeve Higgins, an Irish-born comedian is her  “sidekick” in a series of podcasts designed to celebrate “ amazing women doing remarkable things in pursuit of climate justice.”  Through lighthearted, informal conversations, the podcasts educate and inspire with stories of local climate activists – initially focusing on women only, but eventually planned to include men as well.  The clear purpose is to motivate individuals with positive examples, rather than a climate change “doom and gloom” message.

Episode 1, All Rise ,  explores the issue of global climate litigation through interviews with Tessa Khan, Co-Founder of the Global Climate Litigation network ; Marjan Minnesma, Director of the Urgenda Foundation which launched the world’s first climate liability lawsuit in the Netherlands; and Kelsey Juliana, Victoria Barrett & Ridhima Pandey – young plaintiffs from the U.S. and India who are supported in  lawsuits against their own governments by the Our Children’s Foundation. Each episode consists of the podcast interviews and discussion, with links for more information, more involvement, and  a chance to donate.

The line up of future “Mothers”   includes activists from around the world who have focused on land protection, zero waste, fossil fuel divestment, energy poverty, plastic pollution, and environmental racism. The initiative is profiled in The Guardian in “Mary Robinson launches new feminist fight against climate change” (July 24).

 

Climate Justice through Litigation: What will be the impact of the Paris Agreement?

Climate Justice:  The International Momentum towards Climate Litigation   offers a unique discussion of the intersection of climate litigation and climate negotiations, and whether the Paris Agreement will contribute to a growth in climate litigation. It also provides an up to date summary of past and current cases of climate litigation against companies and governments – focusing on the various grounds of human rights to a clean environment, liability for climate-change induced damages, climate refugees, and corporate deception in the U.S., Netherlands, Pakistan, Peru, the Philippines,  and New Zealand.  It examines past litigation in other sectors, including tobacco, asbestos and oil spills. Amongst the recommendations: the fossil fuel industry be removed from the climate negotiations process and banned  from having a role or voice in setting climate change policy;  introduce a levy on fossil fuel producers to partly fund the International Mechanism for Loss and Damage, which would  provide compensation for  individuals and communities.  Another recent but much briefer note, “Courts take on Climate Change” , published in Nature Climate Change in June, addresses the issue of liability and quotes Andrew Gage, Staff Counsel at West Coast Environmental Law , who asks, “Can you really have a business model that costs the world trillions of dollars a year and not have a conversation about who should be paying for that?” … “The question is, can such litigation play a role in accelerating the transition away from fossil fuels or is it only going to be bickering over who pays for the major damages we’re experiencing?” An example of such bickering is chronicled in a June 7 article in the New York Times, “Regulators Fear $1 Billion Coal Cleanup Bill” .

And who will be the lawyers who argue these cases?  Tom Lininger, a professor at the University of Oregon School of Law, proposes  a series of “green ethics” amendments to the American Bar Association rules in his paper  “Green Ethics for Lawyers” in the  Boston College Law Review .

Note that the Adapting Canadian Work and Workplaces to Climate Change (ACW) website recently  posted the 2015 presentation by Roger Cox, lead lawyer in the landmark Urgenda case.  See The Urgenda Climate Case and its Consequences  .  

The State of Climate Change Litigation: Can Canada and the U.S. follow Urgenda?

The landmark Urgenda decision in the Netherlands  in June 2015 has ignited and re-ignited activity around the world, around the prospect of using litigation to fight climate change . “Unlawful or Above the Law? ” in the CCPA Monitor (Nov/Dec. 2015) reviews the Urgenda decision in detail, and puts it in the context of Canadian policy and historical legal cases which have challenged Canada’s withdrawal from the Kyoto Protocol.   A fuller treatment of the article, titled Canada’s Failure to Reduce Greenhouse Gas Emissions (October 31, 2015) appears on the Lawyers’ Rights Watch Canada website . The authors advocate a legal challenge to Canada’s GHG emissions reduction policies. Much of the legal argument is based on the concept of environmental rights as human rights; a Canadian pioneer on this issue is David R. Boyd, whose article “ The Constitutional Right to a Healthy Environment” appeared in Environment Magazine in 2012  . (a fuller treatment appears in his book The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (2012)).   A more recent publication by Ecojustice, The Right to a Healthy Environment: Canada’s Time to Act    (2015) , acknowledges a large debt to Boyd’s work, and the BlueDot movement  of the David Suzuki Foundation works in practical ways towards the goal. In December 2015, Toronto became the 100th municipality in Canada to pass a declaration supporting its residents’ right to a healthy environment . Climate Change: Tackling the Greatest Human Rights Challenge of our Time (Feb. 2015) by the Center for International Environmental Law and CARE considers how to address the issue within the UNFCCC process.

Regarding liability for climate change damages, West Coast Environmental Law in B.C. and the Vanuatu Environmental Law Association released Taking Climate Justice into our own Hands  on December 8, 2015  “which explains the legal basis for climate-impacted countries to set the rules for climate damages lawsuits and how those rules can be enforced against international fossil fuel polluters.” Further, the authors propose language for a Climate Compensation Act, based on common law and thus adaptable to in any country in the world. (Vanuatu released a Statement for Climate Justice in June 2015  ).  A newly-launched blog series by the Alberta Environmental Law Centre promises “to provide updates on climate change law developments and include insights from our related law reform research.”

The Sabin Center for Climate Change Law at the Columbia Law School, New York, publishes compendium of cases in the U.S. and non-U.S. , and maintains a database called Climate Change Laws of the World . In 2015, the Center published Climate Change in the Courts: An Assesment of non-U.S. climate litigation , as well as Climate Change and Human Rights 2015  (in cooperation with UNEP). The introduction states: “The question is no longer whether human rights law has anything to say about climate change, but rather what it says and how it can best be brought to bear. This report is the most detailed and comprehensive study yet undertaken of those questions”.

In a November 2015 blog, “Failure to take climate action is not only morally wrong, it’s illegal” Michael Burger discusses the Urgenda and Ashgar Legari case in Pakistan, and links them to current climate change cases in the United States.   Most high profile of these have been led by Our Children’s Trust, arguing for the right of children to live in a healthy environment. In November in Washington State  , Judge Hollis Hill ruled in favour of youth, stating that “[t]he state has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people.” Other cases are being pursued by Our Children’s Trust in Massachusetts, North Carolina, Pennsylvania, and Colorado. In August 2015, Our Children’s Trust filed a landmark constitutional climate change lawsuit against the federal government in the U.S. District Court of Oregon; plaintiffs include 21 young people and climate scientist Dr. James E. Hansen, serving as guardian for his granddaughter and for future generations. The complaint document is here; the plaintiffs request a court order requiring the President to implement a national plan to decrease CO2 to a safe level, defined as 350 ppm by the year 2100. In January 2016, a judge granted intervenor status  in the case to the National Association of Manufacturers, the American Fuel & Petrochemical Manufacturers ,the American Petroleum Institute, and other energy industry groups. To watch for: March 9, 2016: the first oral arguments will be heard in a Eugene Oregon court.

Internationally, cases claiming damages from climate changes are underway in the Philippines and Peru .  To keep up to date internationally, follow eLaws News by the Environmental Law Alliance Worldwide (ELAW) , who have also published Holding Corporations Accountable for Damaging the Climate (2014)   . The Center for International Environmental Law  also focuses on climate liability and climate justice.

Following in Urgenda’s Footsteps – another Landmark climate change decision by Pakistani Court

FOLLOWING IN URGENDA’S FOOTSTEPS – ANOTHER LANDMARK CLIMATE CHANGE DECISION BY PAKISTANI COURT
According to the Climate Law Blog of the Columbia Law School, “Leghari v. Federation of Pakistan now joins the Urgenda decision in the Netherlands as an important judicial decision directing a national government to take action on climate change based on fundamental legal principles”. When a farmer in Pakistan sued his government for failing to carry out the country’s National Climate Policy and Framework, the High Court of Lahore ruled in September that “Climate Change is a defining challenge of our time...On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable and weak segments of the society who are unable to approach this Court”. Citing the life-threatening dangers of drought and flooding in the country, the judge directed several government ministries to ensure the implementation of the Framework, with a deadline of December 31, 2015 for action plans. The court also created a Climate Change Commission with representatives from government, NGOs, and technical experts. An article in the Toronto Star (Oct. 3) quotes Canadian legal experts on the decision. See the text of the decision at the Environmental Law Alliance Worldwide website.