Almost immediately after taking office in January 2021, US President Joe Biden signed a flurry of executive orders aimed at tackling the climate crisis, and declared that the time had come to bring greater urgency to this fight. The US has also officially rejoined the Paris Agreement.
These are exciting steps toward securing a just, equitable, and green future for all.
But how can we hold our government accountable for its commitment to this future? How do we push for new solutions that are ambitious enough to match the urgency of the crisis?
According to a joint 2020 report by the Columbia Law School Sabin Center for Climate Change Law and the United Nations Environment Programme (UNEP), people around the world are increasingly engaging in climate change litigation to try to do just that.
Global Climate Change Litigation
The Sabin Center and UNEP define climate change litigation broadly to refer to cases where issues of climate change mitigation, adaptation, or science are central. Various areas of focus have emerged within this category, such as trying to hold fossil fuel companies responsible for negative impacts of climate change.
Recently, cases that seek to galvanize more ambitious government climate action are growing in prominence. An increasing number of these cases are based on claims that insufficient government action to avert the worst consequences of the climate crisis amount to violations of constitutional and international rights, including the rights to life, water, a healthy environment, and food, among others.
Globally, there have been some important successes in this arena.
In perhaps the best-known case, Urgenda Foundation v. State of the Netherlands (“Urgenda”), the Dutch Supreme Court ruled that the Dutch State’s plan to reduce greenhouse gas emissions was insufficient to meet the country’s commitment to protect its citizens under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The Court ordered the Dutch government to cut greenhouse gas emissions by 25 percent by the end of 2020.
In another historic case, the Supreme Court of Colombia ruled in favor of 25 youth plaintiffs who claimed that continued deforestation of the Colombian Amazon, one of the largest sources of emissions in Colombia, was a violation of their fundamental rights. The Court ordered the Colombian government to devise a plan, with the input of affected communities and other stakeholders, to reduce deforestation in the Amazon.
Other suits challenging insufficient government action are pending in various countries, including South Korea, Peru, and Pakistan.
Cases brought under international human rights law are also pending.
In 2019, a group of Torres Strait Islanders filed a complaint against Australia with the UN Human Rights Committee, claiming that Australia had failed to meet its human rights obligations by failing to address the impacts of climate change on the Islanders’ lives. Last year, the UN Special Rapporteur on Human Rights and the Environment, along with his predecessor, filed a brief in support of the Islanders.
US Climate Change Litigation
Just as in the global community, young people in the US, Indigenous groups, and other communities disproportionately impacted by climate change are leading the way in rights-based climate change litigation.
The most visible case has been Juliana v. United States (“Juliana”), brought by a group of young people.
They claimed that the US government violated their constitutional rights by actively promoting the use of fossil fuels over decades, despite knowledge of the “dangerous risks of harm to human life, liberty, and property that would be caused by continued fossil fuel burning.”
In 2020, a three-judge panel of the Ninth Circuit Court of Appeals ruled 2-1 that the case should be dismissed because the plaintiffs lack standing to pursue their constitutional claims in federal court. In the majority opinion, Judge Hurwitz explained that the young people successfully satisfied two of the three conditions for standing by demonstrating 1) concrete injuries (i.e. displacement due to climate change-related water scarcity) that 2) could arguably be attributed to government conduct (i.e. continued support for fossil fuel production resulting in increased carbon emissions).
The Court found, however, that the plaintiffs did not satisfy the redressability requirement for standing. It “reluctantly” determined that it did not have the power to provide the remedy that the plaintiffs sought for their injuries: an order requiring the government to devise and implement an enforceable plan to reduce fossil fuel emissions to zero and take excess CO2 out of the atmosphere.
Such a plan would require “a host of complex policy decisions entrusted to the wisdom of the executive and legislative branches.”
In February of 2021, the Ninth Circuit declined to rehear the case in front of a larger panel of its judges, prompting the Juliana plaintiffs to file a motion to amend their suit to address the court’s concerns on standing. The plaintiffs now seek only a declaration that the federal government’s continued support of fossil fuel use violates the plaintiffs’ constitutional rights.
Whether or not this new strategy is ultimately successful, there are important lessons that we can learn from the setback in Juliana, as well as global successes in climate change litigation.
1.There is hope in Judge Staton’s Juliana dissent.
In her dissenting opinion, Judge Staton recognized climate change for the existential threat that it is. She reasoned that it was within the Court’s power to provide a meaningful remedy because the crux of the issue is not, as the majority suggested, solely a complex policy debate. Rather, the case invoked the principle that the Constitution cannot support actions that will destroy the nation; such actions would render meaningless all other constitutional rights. The plaintiffs, therefore, had a “constitutional right to be free from irreversible and catastrophic climate change” that will destroy the nation. According to Judge Staton, there were no inherent political considerations that would override the Court’s power to enforce this constitutional right.
2.Climate legislation is imperative.
Juliana makes clear that legislation serves not only as a mandate for a just, equitable, and green transition, but also as a mechanism for accountability. Courts may continue to find, as the Ninth Circuit did, that it is beyond the power of the judiciary to order the US government to make policy or legislation where it has not previously seen fit to do so. But ambitious climate legislation, expressing the will of the government to proactively address the climate crisis, can provide the courts with something concrete to enforce.
Climate legislation is also important for holding our government to its commitments under the Paris Agreement or other international treaties. The Paris Agreement is considered “non-self-executing,” which means that domestic legislation is required to make its provisions enforceable in US courts. Similarly, many of the various international human rights treaties that the US has ratified are non-self-executing. In contrast, the Dutch Supreme Court found that the Dutch Constitution required adherence to the ECHR, which was key to the Urgenda success.
What Can You Do?
Now is the time to advocate for ambitious action that will provide the basis for climate litigation, confront the climate crisis, help workers and families recover from the pandemic, and combat racial injustice that is incompatible with the just, equitable, and green future we need and deserve.
That’s why we’re mobilizing activists across the country as part of Our Climate Moment™, a new Climate Reality campaign aimed at creating quick action on targeted climate policy solutions in the US.
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