In the face of perceived political inaction on climate change, citizens worldwide are taking the case to court.
But as the world’s second-largest greenhouse gas emitter turns its back on the global accord, the climate clock keeps ticking. Time is running out for emphatic action to rapidly drive down carbon emissions before rising temperatures trigger runaway ice-sheet collapse, extreme droughts and storms and incalculable misery.
The US exit will make it even harder for remaining nations to meet the Paris pledge of limiting warming to 2°C and keeping as close as possible to 1.5°C. On the present course, we are heading towards a world that’s 3.6°C warmer than pre-industrial times.
And even the 2°C goal is not the threshold for safety it is often understood to be, according to veteran US climate scientist James Hansen. Instead, it would be “disastrous”, triggering human migration that would cause the world to become “nearly ungovernable”. Hansen warns of a planet that’s “largely unrecognisable … marked in vast reaches by unbearable summer heat, ecological collapse, species extinction, widespread famine, coastal cities lost to rising seas, mass human migration and … national and international conflict”.
So what are people who understand that global leaders are bequeathing them a hellish future to do? Increasingly, they are taking the law into their own hands – literally. Instead of picking up placards and loudhailers, climate-conscious citizens – including kids too young to vote – are seeking out like-minded lawyers, writing affidavits, recruiting expert witnesses and heading for the courts.
In New Zealand, 26-year-old Sarah Thomson is at the front line of a global battle for the climate that is being fought out before the judiciary. Her application for a judicial review, heard in June by the High Court at Wellington, alleges the Government breached the law by failing to review its 2050 climate target to reduce emissions by 50%. She also alleges it acted unlawfully by failing to properly take into account the economic costs of climate change when it set a target under the Paris climate accord of reducing emissions by 11% by 2030 (compared with 1990 levels). In its defence, the Government has argued the target is consistent with the 2°C goal and is a “fair and ambitious contribution” to the global effort from New Zealand, which is a “small emitter”.
When Thomson filed her lawsuit with the court in late 2015 – just before world leaders met in Paris and agreed on the climate accord – then-Prime Minister John Key dismissed it as “a joke”. “If we are getting sued, I hate to think what is happening in the US and Australia and other countries actually … their climate targets are lower than ours,” he told the New Zealand Herald at the time.
But if Key had been adequately informed on climate issues, he would have known that governments in those other countries were facing a rising tide of litigation.
The young take up the case
In the most high-profile of a rapidly growing list of international climate lawsuits, 21 child and youth plaintiffs (aged nine to 21) are taking the US federal Government to court, alleging it is violating their rights to “life, liberty, and property” and is in breach of its obligation to “hold certain natural resources in trust for the people and for future generations”.
The action, Juliana v US, was filed against the Obama Administration in 2015 but has been inherited by the Trump Administration.
The case has faced vigorous resistance from the federal Government and the combined might of the oil, coal and gas industries. But in a key breakthrough in October last year – before Trump was elected – Judge Ann Aiken of the US District Court in Eugene, Oregon, not only ruled that the Juliana v US case should go to a substantive hearing but recognised a key role for the judiciary in the battle to save the climate system from catastrophe.
“This action is of a different order than the typical environmental case,” she wrote. “It alleges that the defendant’s action and inactions … have so profoundly damaged the home planet that they threaten [the] plaintiffs’ fundamental constitutional rights to life and liberty.”
Aiken said she had “no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society … a stable climate system is quite literally the foundation of society, without which there would be neither civilisation nor progress”.
The federal courts in the past had been “cautious and overly deferential” in the area of environmental law, she said, citing US Appeals Court judge Alfred Goodwin’s public condemnation of the performance of the judiciary in protecting the environment. In an article titled “A Wake-up Call for Judges”, Goodwin wrote of a “wholesale failure of the legal system to protect humanity from the collapse of finite natural systems by the uncontrolled pursuit of short-term profits …
“Only the judges are equal to the task of protecting the people’s rights to clean air and safe drinking water.”
By Aiken’s own description, Juliana v US is “ground-breaking” legal action. However, the Trump Administration threw another hurdle in the lawsuit’s path to a substantive hearing last month, filing an extraordinary and rare writ of mandamus calling for the Court of Appeals to independently review Aiken’s decision even before the case has gone to trial.
Even if this obstacle is cleared and the case proceeds to court as scheduled, in February next year, it is certain to be fought all the way to the Supreme Court.
A matter of commitment
The fact that the lawsuit has got this far is largely down to the conviction and drive of Oregon lawyer Julia Olson. Olson had been practising environmental law for 20 years when she realised she was barely scratching the surface of climate challenge.
“I was eight months’ pregnant with my second son when I watched [Al Gore’s] An Inconvenient Truth in 2006, and I just thought, ‘Oh, we are just not doing anything that is up to this task right now,’” she told the Listener.
After extensive reading and consultation with other lawyers, she decided on her response. “I just had this moment of clarity when I said, ‘This is what we have to do – be really strategic, big litigation, lots of lawyers, all seeking science-based climate plans from Government that must be implemented in time to save the planet.’”
In 2010, she set up a non-profit organisation, Our Children’s Trust, and recruited lawyers to work without pay to represent young people “who have the most at stake” and who wanted to be plaintiffs in climate trials. She found many environmental lawyers were hesitant, but those who had a background in litigation that had helped bring about cultural and social change – such as anti-tobacco and pro-gay marriage lawsuits – were keen.
Olson’s strategy has been to go geographically broad and legally deep. In mid-2011, she and her backers filed suits simultaneously in all 50 US states. They lost many cases, some were dismissed and some have crept forward. But she says each case helped build an understanding of what it will take to push a lawsuit through to a successful conclusion.
In one breakthrough action, taken on behalf of youth plaintiffs against Washington State’s Department of Ecology, Superior Judge Hollis Hill wrote: “This is an urgent situation. This is not a situation in which these children can wait … Polar bears can’t wait. The people of Bangladesh [where millions will be displaced by rising seas] can’t wait.”
Olson also worked closely with US legal scholar Mary Woods, an expert in the ancient legal doctrine of the “public trust” and its application to the climate system. Rooted in Roman law as part of the Justinian Code – a collection of laws codified under Emperor Justinian I – it holds that the air, water, seas and seashores are resources held in common by the people and managed in trust by governments. The concept has been described as “a foundational principle of organised civilisation”.
By anchoring its legal action in the allegation that the public trust has been breached, Our Children’s Trust is “going back to the roots [of the law]”, says Olson. “The root of our civilisation is the climate system, and the root of our legal system and our relationship to natural resources is the public trust doctrine.”
If it gets past the latest attack from the Trump Administration and proceeds to trial, the Juliana v US hearing will last about six weeks, and will include evidence on how long the federal Government has known of the damage fossil fuels are causing while failing to take action to prevent it. Olson says her team has unearthed reports from 1965 predicting that cities including Washington DC and New York “are going to be underwater if we keep burning fossil fuels”.
There will also be evidence on the economic cost of climate change, the availability of renewable energy, and from scientists including James Hansen, whose granddaughter Sophie Kivlehan is one of the plaintiffs. In a just-published paper, Hansen, a climatologist and former head of Nasa’s Goddard Institute for Space Studies, says the evidence shows that not only do fossil-fuel emissions have to stop, but also “negative emissions” – extraction of carbon dioxide from the air – are needed from forestry and improved soil management to keep global warming within safe bounds.
Otherwise today’s young people will be saddled with an enormous burden, including having to undertake high-tech carbon capture and storage at a “minimal estimated cost of US$89-535 trillion this century”.
Much of the Olson team’s evidence on climate change had already been acknowledged as accurate by the federal Government when the Obama Administration was still in office, and Olson says the Trump Administration has not changed that.
She has an uncompromising vision of what a successful outcome would be. “Success would be the court declaring constitutional rights and public trust rights have been violated, and that the constitutional standard for protecting these young people and their climate system is having no higher than 350 parts per million CO₂ by the end of this century [CO₂ concentrations are now over 400ppm], to stabilise long-term warming at no more than 1°C, and ordering the Government to prepare a plan to reduce emissions in line with a trajectory of getting back to those numbers and implementing it under court supervision over decades.”
Is that realistic?
“Yes. People are always shocked, and it’s so irritating when people say, ‘Oh, you won’t win, but at least the case is generating awareness.’ That’s not why we are doing it. We are doing it to win the case and get the order.”
She says there is good precedent for the courts to take a long-term supervisory role over such a climate plan. For instance, a Californian lawsuit over prison overcrowding resulted in a ruling requiring the state to prepare a plan to reduce prisoner numbers, with the court retaining implementation oversight. The school desegregation battles of the 1950s and 60s also saw the judiciary dictating details such as the ratio of black and white students in particular schools and the amount of bussing of students required.
Long arm of the law
Olson’s strategy of using the law as a lever for urgent climate action now reaches far beyond US shores. Her group is supporting the case of a nine-year-old litigant in India who has filed a suit against the Government alleging breach of the public trust and citing Aiken’s findings. She is also working with lawyers in Australia, Canada and Sri Lanka to develop lawsuits in those countries and is supporting litigation against Pakistan’s Government alleging a breach of the public trust and seeking to stop the development of massive new coal mines. The action was filed in April 2016 on behalf of a seven-year-old girl.
She is also working with a Belgian non-profit group suing the Government in that country, demanding practical policies and substantive action to back up emission- reduction targets.
The Belgian case mirrors an earlier landmark lawsuit in the Netherlands, in which the court found in favour of climate litigants calling for a more aggressive emission-reduction policy. The 2015 ruling was the outcome of a case brought by environmental group the Urgenda Foundation and 900 citizen plaintiffs against the Government in The Hague. The case was led by Dutch lawyer Roger Cox, the author of 2011 book Revolution Justified, in which he argues that neither the market nor politicians are capable of the decisive action needed to rescue the climate system and that only the judiciary is in a position to lead societies out of danger.
In the Urgenda case, that philosophy was rewarded with a court order requiring the Dutch Government to limit greenhouse gas emissions to 25% below 1990 levels by 2020. The court found that the Government’s existing pledge of reducing emissions by 17% amounted to “hazardous negligence” and was insufficient to meet the country’s contribution to the UN target of limiting warming to 2°C.
The court rebuffed the Government’s claim that because Dutch emissions were only 0.5% of the global total, unilateral reductions by the Netherlands would be futile – an argument commonly heard in New Zealand in defence of modest climate action. “[Any] anthropogenic greenhouse gas emission, no matter how minor, contributes to an increase of [CO₂] levels in the atmosphere and therefore to hazardous climate change,” the ruling said. The state has “a duty of care to mitigate as quickly and as much as possible”.
Romany Webb, a fellow at the Sabin Center for Climate Change Law at Columbia University in New York, says every case is unique, and attempts to apply the findings from the Urgenda decision in other countries with different legal and constitutional frameworks will face difficulties. But “the courts can take what’s called judicial notice of cases in different countries, although they are not binding in the same way as they would be in the country itself. But [Urgenda] is an incredibly important decision, and we have seen cases raising similar arguments in other places and we will continue to see that.”
A report published by the Sabin Center and the UN Environment Programme in May confirmed that the volume of climate litigation is growing rapidly, with cases filed in 24 countries as of March 2017. Because of the “super wicked” nature of the climate problem and the inadequacy of governments’ emission-reduction pledges, “litigation has arguably never been a more important tool to push policymakers and market participants” to come up with effective action to cut emissions and make the adaptations needed to an already-altered climate, according to the report.
A grand project
Veteran environmental lawyer James Thornton sees litigation in defence of the climate system as “one grand sweeping project”. US-born and London-based Thornton is the founder of ClientEarth, a non-profit law firm funded by philanthropists that has spread its operations from the UK to continental Europe and Africa. It has also been engaged by the Chinese Government to train hundreds of judges in how to interpret that country’s environmental protection law to help bring about a rapid response to climate change.
Thornton regards the Earth itself as his firm’s client, and his legal strategy is multi-pronged. At one end of the spectrum is what he calls “trench warfare” – project-by-project litigation to block the likes of coal plants and logging of ancient forests. At the other end, he is working through the financial system to remind those with a duty to look after other people’s money that they are obliged to protect it from the economic impact of climate change and the risk of massive financial losses on stranded fossil-fuel assets.
Although ClientEarth has so far not sued any directors or pension fund trustees for failing to manage climate risk as part of their fiduciary duties, Thornton has loudly telegraphed the threat in correspondence with BP, as well as in complaints to the UK’s Financial Reporting Council over the alleged failure of oil and gas companies Cairn Energy and Soco International to disclose climate-related risks in their financial statements.
And in a world-first-lawsuit this week, court papers were filed against Australia’s Commonwealth Bank for an alleged failure to properly disclose the risks to the business from climate change. The action is being brought by lawyers at Environmental Justice Australia on behalf of Commonwealth Bank shareholders Guy and Kim Abrahams. It follows a legal opinion last year by Australian lawyers Noel Hutley and Sebastian Hartford-Davis, who said it was “a matter of time” before company directors faced legal action for failing to consider and disclose business risks posed by climate change.
“Trillions of dollars have to be spent on clean energy in coming years,” Thornton told the Listener. “That money is there to invest, but we have big barriers and calcified ways of thinking that prevent it moving in the right directions. So one of the goals is to move the money in the right way.”
Another strand of Thornton’s strategy has been to target state subsidies of fossil-fuel-industries. “We have had some good success in Poland, working to stop 14 state [coal] power plants. The state was going to get free emission allowances [under the European Emissions Trading Scheme], and by legal argument, we forced the EU to withdraw that so the finances of the project had to stand on their own two feet without subsidies.”
What of the prospect of fossil-fuel companies being sued by citizens whose lives are harmed and property damaged by extreme storms, droughts, wildfires and rising seas? Thornton calls this the “Holy Grail” of climate litigation, and says it is inevitable as “science and the law join forces”.
In an article in Nature, co-written by London financier Howard Covington, Thornton outlined the hurdles to success for such a lawsuit. A plaintiff would need to prove that carbon emissions had brought about the extreme weather event that caused harm or damage and to sheet responsibility for those emissions home to a company or organisation. They argue there are parallels in tobacco and asbestos cases, where the courts have accepted evidence that the offending substances substantially increased the probability of harm.
As scientists improve their ability to attribute specific weather events to climate change, it will become easier to satisfy the courts, argue Thornton and Covington. For instance, scientists at the UK Met Office Hadley Centre have calculated that heatwaves that would have occurred twice a century in the early 2000s are now expected to occur twice a decade because of greenhouse gas emissions.
Because there are multiple contributors to those emissions, a plaintiff would have to prove that a particular defendant was responsible for a share of them to hold that entity liable for a proportion of the damage. Although this would not be straightforward, say Thornton and Covington, scientists have shown that just 90 companies are responsible for two-thirds of all carbon dioxide and methane emissions from 1854 to 2010 – among them global giants such as Exxon Mobil and Chevron.
Although such damages claims against fossil-fuel companies have so far been unsuccessful in the courts, climate litigation’s Holy Grail may have come a little closer in July with the filing of a lawsuit by three local governments in California against 37 coal, oil and gas companies, including Exxon, Chevron, BP, Shell and Total.
San Mateo and Marin counties and Imperial Beach city are coastal communities affected by rising seas. In what the Mercury News called a “co-ordinated litigation attack”, they allege greenhouse gas emissions from the defendant companies are causing sea levels to rise, putting public and private property at risk and affecting the rights of residents.
The councils argue the companies knew of the risk but carried out a “co-ordinated, multi-front effort” to “discredit the growing body of publicly available scientific evidence and persistently create doubt”.
It’s yet another “groundbreaking” climate case, observes law expert Michael Burger of the Sabin Center. “Each of the complaints presents the same simple, compelling storyline,” wrote Burger in a recent blog post. “These fossil-fuel companies knew. They knew that climate change was happening, that fossil-fuel production and use was causing it, and that continued fossil-fuel production and use would only make it worse. They knew this, but they hid it. And then they lied about it and paid other people to lie about it for them. All the while they profited from it and plotted to profit more. Ultimately, their actions caused sea levels to rise and thereby caused harm, are continuing to cause harm and are contributing to future harm to the plaintiff governments and their residents.”
As in the Juliana v US case, “success on the merits is far from assured. But it could happen,” says Burger. “The facts are there, making the case for causation and culpability.” Such lawsuits “represent a new pressure point on the fossil-fuel industry”. The mere prospect of a “judicial judgment affirming the plaintiffs’ case might nudge these companies to accelerate their own transition away from past practices towards new approaches to providing energy to consumers”.
This article was first published in the August 19, 2017 issue of the New Zealand Listener.