Two cases have raised the possibility that in future governments may face court proceedings for failing to tackle climate change effectively. Simon Colvin reports
Ahead of the climate change conference in Paris at the end of the year (COP21), there has been discussion on what targets to reduce greenhouse-gas emissions will actually mean if they are agreed. What happens if countries do not stick to their commitments? Other than political pressure from other signatories, what can be done?
Cause and effect
To answer these questions it helps to focus on the EU as an example. Depending on what is agreed at COP21, the EU and its member states can either commit to GHG reduction figures that are already present in law and policy or they can develop new policy and legislation to meet any new targets set at the summit. These laws and policies create rights and expectations for the citizens living in the EU and its member states.
Scientific knowledge and understanding of climate change and its causes, driven mainly by the work of the International Panel on Climate Change (IPCC) have brought us to a point where the causes and effects are generally accepted and understood. As a result, it is possible to argue that, if a member state does not commit to, honour and enforce a minimum GHG reduction figure, it is contributing to dangerous levels of global warming that could have an impact, not only its own citizens, but also those elsewhere, perhaps globally. Put simply there is a cause and effect.
It is currently impossible to apportion indisputable blame to any country and also to identify specific harm caused. However, it is possible to say that, if a country is not doing enough to reduce its emissions, it is contributing to the problem of global warming in contravention of the accepted scientific knowledge. It should, therefore, be possible to hold that country to account; to get it to do more.
The August issue of the environmentalist reported a recent Dutch case - Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment) - brought by an NGO. It highlights the way in which the legal framework in the EU and its member states can be used to hold governments to account in relation to their international and European obligations to combat climate change and reduce greenhouse-gas emissions.
The principles from Urgenda are not directly applicable in the UK. But when considered alongside a recent domestic case - R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs - in which the UK government was held to account in relation to its obligations under the EU ambient air quality Directive (2008/50/EC), they provide an interesting insight into what the future could hold in terms of climate change litigation, particularly in the UK.
The Dutch case
The Dutch case was brought by the Urgenda Foundation, a climate change NGO in the Netherlands. The NGO argued that the Dutch government's commitment to reduce GHG emissions by 17% by 2020 was inadequate and would result in the Netherlands contributing to dangerous levels of climate change.
Urgenda said the commitment was in breach of duties in Dutch law and also contravened the European Convention on Human Rights (ECHR) and argued that the target needed to be higher - either a 25%-40% reduction by 2020, or 40% by 2030 - and sought an order from the district court in The Hague.
Despite counter arguments from the Dutch authorities, the court decided the government did have a duty in Dutch law, though not the ECHR, in relation to climate change and the mitigation of its effects. On the basis of current scientific knowledge and wider EU law and policy, the court decided that a target less than 25% was in breach of this duty and ordered the government to ensure Dutch GHG emissions are reduced by that amount by 2020 against a 1990 baseline.
This is the first time a court has ordered a government to strengthen its climate change policy. The Dutch government has stated that it will appeal the ruling. A similar case is pending in Belgium suggesting that there is a growing appetite among NGOs to compel governments to do more. Are these cases just the first among many?
Air quality
The long-running ClientEarth case concluded in the Supreme Court in April this year (see the environmentalist, June 2015). It concerned a judicial review application by the NGO against Defra for the failure of the UK government to properly implement the EU Air Quality Directive. The UK had failed to meet particular limits for nitrogen dioxide by
1 January 2010 and thereafter had failed to properly follow the process in the directive to enable it to postpone the compliance deadline until 2015.
In May 2013, the Supreme Court issued its first judgment, declaring that the government was in breach of its obligations under 2008/50/EC. At the same time, it referred some questions to the Court of Justice for the European Union (CJEU). The European court responded in November 2014 and the Supreme Court's final decision followed on 29 April 2015.
The Supreme Court reaffirmed its first judgment and the government's breach of the directive. It ordered the government to prepare new air quality plans to ensure the UK complied with the limits on nitrogen dioxide. The plans have to be submitted to the commission by 21 December 2015.
It is interesting to contrast the Urgenda and ClientEarth cases. The court in The Hague appears to have crossed a line, separating the powers of government from those of the courts in supplementing Dutch government policy. In the ClientEarth case the UK government was being held to account by the court for failing to meet a specific limit by a specific deadline. There was no demand from the court for a change in government policy, only an order to correct the failure.
What if the UK government failed to meet its obligations to reduce GHG emissions by 20% by 2020 and 80% by 2050, which are legal targets in the Climate Change Act 2008? Or if the UK appeared to be on track to miss them? Would it be possible for legal action to be taken against the UK government to force it to take further action to meet the targets? The answer has to be yes.
The ClientEarth case already indicates the willingness of the UK courts to hold the government to account to meet any missed targets or deadlines. In relation to the need to do more to achieve targets, the scientific evidence on the link between GHG emissions and climate change is strong.
If the evidence to demonstrate that the government was going to miss the targets was also robust, again the courts might require the government to confirm what it intended to do to bridge the gap. It would not specify what needed to done, however; that would be a question for the government.
Although that sounds promising, other than the public pressure that would follow such a direction from the courts and possibly some embarrassment at an international level, it is unlikely any other steps would be available to the courts to compel the government to take action, leaving the victory a bit hollow for those who brought the case.
Citizen rights
It would be impossible for a UK citizen to bring a negligence claim against the government for harm arising from climate change because of the difficulties in proving a causal link between the failings of the authorities and any harm suffered. In the UK, there are also other significant legal hurdles to such claims against the government.
If the duty on which any legal action was based was derived from European law and the UK had failed to meet a specific compliance target it would be open to the European commission to bring infringement proceedings against the UK government. It is likely that the result of such action would be a financial penalty for non-compliance, but such proceedings are notoriously slow and political.
So, while it may be possible to challenge any failure by the UK government in relation to its climate change policy and obligations, the outcome might not be the solution that those pursuing the case would have hoped for.
Despite the difficulties in the UK, it does seem the legal landscape is changing and that the prospect of climate change litigation is growing.
The scientific evidence and understanding exists, NGOs have a growing appetite, the legal duties exist and the courts seem to be prepared to consider such claims. If the outcome of COP21 in Paris does not live up to the expectations of many observers, one outcome could be legal action to compel governments to do more.
More information
Urgenda Foundation v Dutch government case: edigest.elaw.org/node/42; ClientEarth v Defra case: bit.ly/1Lq1FmX.
