A group of chinstrap penguins walk atop an iceberg near Lemaire Channel, Antarctica, February 2020. Photo: Reuters/Ueslei Marcelino/Files.
As temperatures, seas, and related crises rise around the globe, a swelling tide of climate lawsuits is inundating courts. According to a 2019 report, more than 1,300 climate crisis cases have been brought against governments, companies, and other entities in at least 28 nations.
But these are uncharted waters for legal and ecological stewardship. Judges are being asked to navigate complex scientific evidence to rule on matters like whether a government enjoys an “absolute and unreviewable power” to destroy its nation, and whether citizens have a constitutional right to a pollution-free environment. Although many of the cases have floundered, a recent decision by the European Court of Human Rights (ECHR) to fast-track a case brought by six young people in Portugal may signal more favourable winds.
Lawyers representing the plaintiffs, ages 8 to 21, argue that the EU government’s plans to reduce greenhouse gas emissions are “too weak and not in line with what the science demands.” According to the Global Legal Action Network, a charity providing legal support for the case, there is “no justification for forcing them and other young people to bear this burden” of climate change, and that to do so is discriminatory.
Portugal is indeed a climate hotspot. During a 2018 heatwave, its capital city, Lisbon, experienced a record high temperature of 111º F1. A year earlier, wildfires killed 120 people in Leiria, where four of the plaintiffs are from. The plaintiffs are asking that the EU commit to a 65% reduction in greenhouse gas emissions by 2030, more stringent than the 55% reduction that EU leaders subsequently agreed to in negotiations unrelated to the case.
Already, the new lawsuit is creating waves – and holding lawmakers’ feet to the fire. In fast-tracking the case, the ECHR has ordered 33 nations to respond by February 2021. “It is no exaggeration to say that this could be the most important case ever tried by the European court of human rights,” Marc Willers, who is part of the plaintiffs’ legal team, told The Guardian. And it may matter far beyond European borders.
The case is distinguished in part by its venue. The ECHR is no toothless paper tiger. It has a track record of handing down decisions that change national policy, perhaps the most famous instance being the 1981 ruling in Dudgeon v U.K., which held that Northern Ireland’s criminalisation of homosexuality violated guaranteed rights. It also provided the rationale behind what Michael Gerrard, director of the Sabin Centre for Climate Change Law at Columbia University called the “strongest” ever climate court ruling to date – the landmark Urgenda v. The Netherlands decision, in which the Dutch Supreme Court ruled that its government’s polices didn’t satisfy the ECHR’s requirement that States must “take measures to counter the genuine threat of dangerous climate change.” In response, the Dutch government was forced to adapt its policies and meet new emissions reductions requirements, for instance, by accelerating the closure of coal plants.
With the Portuguese case, the ECHR has signalled that it will not sidestep the issue of climate change. That contrasts sharply with the stance taken in a comparable case in America, Juliana v United States. In that case, 21 youths alleged that the federal government, by failing to act on climate change, had violated their rights to life, liberty, and property and failed to protect essential public trust resources.
In Juliana, the highest court involved so far decided precisely to avoid the issue. By a two-to-one margin, a panel of judges on the Ninth Circuit of Appeals ruled to dismiss the case on the technicality that the plaintiffs lacked “standing” to sue. They accepted that the scientific evidence was compelling, and that concrete particular harms to the plaintiffs had been demonstrated. But “reluctantly,” they wrote, “we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.” Because of this compelling case, the judges said, “elected officials have a moral responsibility to seek solutions.” The phrases “compelling case” and “moral responsibility” should strike fear into the hearts of fossil-fuel company executives and all who support inaction or incremental policy on climate change, including the Obama administration lawyers who once argued that “there is no constitutional right to a pollution-free environment.”
In a fiery lone dissent to the Juliana ruling, Judge Josephine L. Staton made the case that the climate crisis should be a call to action to officials who have the power to act. In impassioned, lacerating language she wrote:
In these proceedings, the government accepts as fact that the US has reached a tipping point crying out for a concerted response — yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defences. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.
“[T]he Constitution does not condone the Nation’s wilful destruction,” Staton added. Rather, “the government has more than just a nebulous ‘moral responsibility’ to preserve the Nation.”
In a November 2019 article in the ABA Journal, a legal trade publication, Darlene Ricker wrote that “the judiciary has dismissed numerous climate change cases as political questions.” But in Staton’s dissent, she noted that courts intervened on behalf of civil rights in Brown v. Board of Education, when the other branches failed to act. (Alarmingly, some legal experts think the Brown ruling outlawing racial segregation in US public schools may have gone the other way had the case been tried in today’s legal climate.) Staton wrote that the urgency, severity, and unique threat of climate change justifies judicial action: “History will not judge us kindly. When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?”
An appeal of the Juliana decision is pending, with no indication of the timing of next steps. But at the ECHR, there has been no such hesitation. In expediting the Portuguese lawsuit, the court is recognising the urgency of the crisis. And since the Portuguese youngsters also seek to force governments to address extraterritorial climate effects – the “off-the-books” contributions to the global carbon footprint due to the export of fossil fuels, the manufacture of imported goods, and the global activities of EU-headquartered corporations – the case could have an impact far beyond the EU’s 448 million citizens.
Early signs are that the ECHR judges may lean toward Staton’s interpretation of judicial responsibility. They have asked the 33 responding governments to address, in addition to the issues presented by the plaintiffs, the impacts of climate change on mental health.
Furthermore, the view of the climate situation is different in Europe than it is in the US. The EU, for example, is already experiencing massive climate-related migration impacts, including the displacement of 5.6 million Syrian refugees, of whom more than a million sought asylum in Europe due to a war that can be traced, at least in part, to political destabilisation triggered by drought.
The language and logic of “moral responsibility” is gaining legal momentum. Alongside these judicial manoeuvres, there’s increasing political and moral momentum of mass protests, including Greta Thunberg’s global school strikes, which have involved millions of students in 135 nations. It is increasingly clear that we are courting disaster if we don’t take rapid large-scale action. Thanks to six intrepid young people in Portugal, European nations may finally have to reckon with that fact.