Climate change: the application of the Legal System to Compel Governments to Act

Climate change: the application of the Legal System to Compel Governments to Act

What does the climate change dispute look like? For several, the word calls to mind lawsuits against fossil fuel industries demanding restitution for the damage caused to them by climate change. These cases still exist: a substantial number have been taken to the United States, and others to other countries, as well as to certain foreign courts.

Although the type of climate change lawsuits that has gained more publicity in recent years is one of allegations made against governments. The exact basis for these arguments differs, but at the core of the allegation is that nations must do more to shield their people and the wider world from the effects of climate change.

Not only have these cases been brought; they have often culminated in landmark rulings against states.

The most current precedent is the ruling of the Paris Administrative Court of February 2021 in the so-called "Case of the Century." Four non-governmental groups also brought an action against the French Government, arguing that it has violated its constitutional obligations to intervene to curb greenhouse gas pollution. The Court decided that it was in favor of the applicants. It will now decide what actions it can order to enable the French State to remedy the damage incurred or to avoid its further aggravation.

The French case followed a seminal ruling of the Dutch Supreme Court in the Urgenda Lawsuit in December 2019 that the Netherlands Government had violated its obligation to prevent climate change and had to take action to curb greenhouse gas pollution by at least 25% compared with 1990 levels.

The Irish Non-Governmental Organisation effectively crushed the Irish Government's National Climate Change Mitigation Plan in July 2020 on the grounds that it refused to meet with Ireland's Climate Action and Low Carbon Development Act 2015 and other legal obligations. The Irish Supreme Court concluded that the plan neglected to map out with proper detail how Ireland will meet its climate change targets in 2050.

To date, litigation in the United Kingdom has appeared to rely more on the approval and creation of infrastructure processes. In May 2020 the applicants requested judicial approval of the UK Government's national policy statements on the construction of substantial energy resources. The applicants contend that the comments – made in 2011 – do not take into consideration more current changes in the United Kingdom's climate change strategy. These involve the pledge of the United Kingdom to reach climate neutrality by 2050 and the Paris Agreement. While the UK Government has announced that it would examine national policy statements, litigation persists.

What observations can be made from this range of cases?

The first involves the ability of the judiciary to make cases against states about refusal to take action to tackle climate change. This ensures that governments' ability to operate in the area of climate change mitigation and their obligations to the Paris Agreement are limited. Policy makers and officials recognize that, where there is a disparity between the responsibilities they have assumed in relation to climate change and the realistic measures they have taken to accomplish them, the courts may rule. Governments will not always be opposed to this, of course. Many who want to be more constructive in the context of climate change, but face resistance from business or parliamentarians, may privately accept a court ruling that relieves them of tough decisions.

The second issue concerns the effect on private businesses. Companies across the oil market and through markets are under strain to minimize their impacts on climate change from a number of outlets. This includes customers, clients, financial firms and staff. Legal orders forcing states to behave in a certain manner in response to climate change would be passed down to the business sector in the form of regulations or other official guidelines. Private corporations could be interested in climate change lawsuits where federal or legislative permits for their programs are subject to judicial dispute.

This points to a third point: if businesses are indirectly impacted by court rulings on climate change mitigation, they may be at a comparative disadvantage with companies in jurisdictions that do not enforce the same conditions. Or they can want to transfer their own activities to these countries. Part of the reaction to this is highlighted by the planned carbon boundary change of the European Union. The European Union defines this as a system to set a "carbon price on imports of such products from outside the EU" in order to deter firms from moving production to countries that are less stringent about pollution."

The time of self-reflection caused by the pandemic has rendered climate change more, not less, important. If nations move back to economic normality and brace for more robust promises at the next international climate change conference expected to take place in Glasgow in November, many will look to place climate change mitigation at the forefront of their policies. They will recognize that if they do not do so, the judiciary will be ready to take action to guarantee that fundamental rights and interests are protected.