Courts become a new battleground in the battle against global warming

With the Government to be taken to court for its alleged failures on climate change, the law is now a frontline for campaigners, writes Caroline O’Doherty.

Around kitchen tables and over cross-country phone calls, preparations are being made for a court case with no less an aim than saving the planet. Or at least pushing Ireland to do its full share of the job.

High Court case 2017/793JR will have its hearing over four days next January when the campaign group, Friends of the Irish Environment (FIE), seek to hold the Government to account for alleged failures to take the necessary action against climate change which is imperilling Earth and all in it.

Specifically, they are targeting the National Mitigation Plan, published by the Government last year, which they will argue is so vague and weak that it breaches the requirements of the Climate Act 2015, the Constitution and human rights law.

FIE’s small band of volunteers have been to the High Court many times before, challenging regulatory authorities whose decisions or inaction, they contend, damage the environment, but this time like-minded groups and anxious governments the world over are watching.

The case is one of a rapidly growing number of climate litigation actions around the world. 

The Sabin Centre for Climate Change Law at Columbia Law School in New York does a monthly tally, which is currently running at almost 1,300.

Many of the US actions are taken under federal laws such as the National Environmental Policy Act, while others are constitutional challenges or claims against state laws or industries.

Not all are taken by campaign groups — the city of Baltimore last week began an action against 26 oil and gas corporations, alleging they ignored the risk their products posed and demanding they pay for climate adaptation measures to protect the city from sea-level rise.

Elsewhere, cases have been or are being taken in 29 countries from Uganda to Pakistan to Colombia. 

Most are against state authorities, although a couple of dozen are against industry and some are against European or international institutions.

Some are government versus government such as the case of the Federated States of Micronesia who took the Czech government to court for failure to carry out a transboundary environmental impact assessment on the expansion of the Prunerov coal-fired power station — a development the low-lying islands said would add to global warming and exacerbate the risk of flooding they faced.

In that particular case, Micronesia both won and lost. The environmental impact assessment was ordered but the Czech government still approved the expansion.

Other cases have also been partially successful and many current cases can expect similar outcomes. 

But what ties these very varied cases together is the belief among those who initiate them that individually, and collectively, they can force the powers that be to take more seriously the issue of climate change and act more decisively to address it.

Dr Áine Ryall

Áine Ryall, of the University of College Cork Centre for Law and the Environment, attributes the rapid increase in cases in the last few years to the groundbreaking 2015 action by the Urgenda organisation in the Netherlands.

Although now under appeal, it was the first case in the world to result in a court ruling holding a government responsible for contributing to climate change by its failures to act effectively to address the problem.

The court ruled that the Dutch government must cut greenhouse gas emissions by 25% on 1990 levels by 2020. 

Prior to the ruling, there was a general acceptance in government that only a 14% reduction would be achievable. 

Despite the appeal, efforts towards the 25% cut have ramped up considerably.

Dr Ryall says the outcome was unexpected — courts are generally reluctant to dictate government policy — but it was hugely welcome. 

“It prompted a surge of interest around the world in the potential of climate litigation to force Governments to act with more ambition and more urgency.”

Environmentalists have never been shy about publicising their causes and have long employed visual means of doing so — demonstrations, marches, sit-ins, sleep-outs, human chains, protest art, protest songs and protest ships all feature.

Dr Ryall believes they will continue to play a part and courtroom action will not render direct action obsolete.

“Litigation is one potential element in a climate action strategy,” she says.

“But climate litigation captures the public imagination in a particular way. It tends to attract significant public interest and also media interest. These cases have a strong novelty factor and often involve groundbreaking legal arguments.

“This makes litigation a particularly powerful tool in raising the public profile of the urgent need for climate action, regardless of the eventual outcome of any court proceedings.”

While recent cases have woken a new generation up to the possibilities of litigating to fight climate change, campaigners have been using the law as a tool to influence environmental policy for the past 40 years.

Aoife O'Leary

Dubliner Aoife O’Leary is a legal analyst with the European office of the Environmental Defense Fund and says campaign groups must be as au fait with the law as those who make the law.

The EDF was formed in 1967 by conservationists in New York state who took a landmark case against the Suffolk County Mosquito Control Commission, winning a court order to stop spraying the local salt marshes with DDT.

That small act led to a statewide ban on the use of the infamous pesticide which not only killed the intended target but all sorts of other useful insects while also inflicting devastating damage on fish and bird life.

By 1972, DTT was outlawed across the entire US and much of the world followed suit, but the impact of the case was far wider than a product ban. 

It showed environmentalists everywhere that the law — often used by the powerful to arrest, injunct and otherwise suppress protest — could also be used to address the issues at the heart of the protests.

But Ms O’Leary says it is where knowledge of the law, science and economics intersect that the real power to influence lies.

She worked as a corporate lawyer for a few years but decided it wasn’t for her and looked for a move to the environmental arena, ending up in Brussels, working in aviation and shipping law.

“It’s quite a neglected area in terms of climate but transport has huge implications for energy use and carbon emissions,” she says.

“It’s complex because you have national, EU and international law. I didn’t have prior expertise in environmental law so I went and did a masters in it.”

She didn’t stop there and swiftly completed an economics degree for good measure.

When I started talking to politicians about climate, the answer was always — but what about the jobs? I knew it wasn’t that simple but when you are faced with big economic reports from industry, it’s very hard to pick them apart if you haven’t got the right language.

“The only way to get the other side to engage on the same level with you and to get respect from politicians is to speak the same language they do.”

She says, however, that the struggle for climate action should not closet itself away in courtrooms and research libraries and that feet on the street are still a formidable means of telling those in power what they don’t want to hear.

“The best-case scenario comprises the two — legal action and people power, having the grassroots behind what is happening in the courtroom.”

Since moving to the EDF early this year, Ms O’Leary’s research has included ways for shipping to adopt clean fuels and green technology and her latest research paper analyses the international shipping agency, the International Maritime Organisation, to see how far its authority can stretch in enforcing those policies — an important question as many regulatory bodies have legal functions that predate the climate change debate and are unclear as to what they can do without overstepping their powers.

Happily, she found the IMO has ample powers at hand — and she, and the EDF, have told it so.

“A boss once said to me you have to do two things — tell the truth and be right. The only way you can do that is by being sure of your facts and that takes understanding the science, the economics and the law,” she says.

Friends of the Irish Environment shares that philosophy. 

The organisation was founded by a small group of activists in 1997 with the priority aim of monitoring Ireland’s compliance with EU environmental law — which held member states to higher standards than most domestic laws — and using that law to push for better planning policies and decisions.

Since then, it has built up a network of members and supporters that includes academics, practitioners and researchers in the key fields who give their time voluntarily to help prepare cases.

A giant panda in a tree in Wolong Nature Reserve, China, as half the plant and animals in the world’s most nature-rich areas are at risk of dying out if greenhouse gas emissions rise unchecked, wildlife experts have warned. Pic: Bernard De Wetter/WWF-Canon/PA

One of them is Sadhbh O’Neill, a doctoral candidate at UCD where she is researching climate policy, ethics and economics. 

She says FIE also has a friend in the 1998 Aarhus Convention which enshrines the rights of the public to access environmental information held by public authorities, to participate in environmental decision-making and to take court challenges in a manner that is not “prohibitively expensive”.

That last principle is vital as, even with sympathetic legal experts and scientists who work on cases for free, accessing the High Court on a regular basis would be financially impossible.

Even so, the group doesn’t take cases lightly but O’Neill says the breakthrough in the Urgenda case gave them the confidence to pursue their own challenge.

“We were very much inspired by that case and felt we should follow its example because Ireland’s performance on climate change and carbon reduction targets has been very poor.

“These are not just desirable policies, they are legal obligations on the Irish Government. The case is going to use the law to drive home the fact that the Government has signed up to this and has a legal and moral obligation to act.”

While the case is taken in the name of FIE, O’Neill stresses that it is intended to represent the interests of the public at large. 

FIE has created a website, climatecaseireland.ie, and is asking people to add their names online to indicate their support. The number at the end of last week exceeded 1,300.

“The case is not about our organisation. it’s a case for everybody in Ireland. We’re hoping it will mobilise the public in a way that can be hard to do with climate change because the risks are perceived as being far away and in the future.

“Even though the extreme weather events are starting to make people think, it’s very hard to translate that into political action. We need to give people a hook to attach their political demands to and the case provides that.

“It’s also important for us to show that we have broad public support — that this isn’t a narrow bunch of hippies trying to score points against the Government.”

Cases such as this have broad audiences too — just as Irish activists were watching the Urgenda case, the FIE case is being monitored by groups and governments worldwide.

That in itself can have an influence, campaigners believe, as most governments value their reputation abroad, especially on a common good issue such as climate change.

O’Neill believes it may already have made a difference.

Celebrating the passing through final stage in the Dáil of the Fossil Fuel Divestment Bill outside the Dáil is Ciara Mehari (7), Ian Tevnan (8) and Conal Tevnan (6) from Maynooth, Co. Kildare. Pic: Mark Stedman

She cites two developments this month — the passing of the Fossil Fuel Divestment Bill which prohibits the State owning shares in fossil fuel companies, and the creation of the special Oireachtas Committee on Climate Action which met for the first time this month and will consider the recommendations the Citizens’ Assembly made on climate change and report back next January on how they should be implemented.

“These are small steps but they are sending signals that there is public support for stronger climate action,” she says.

Áine Ryall also sees significance in the small steps, in particular, the new Oireachtas committee. 

“One of the recommendations of the Citizens’ Assembly focuses sharply on holding Government to account for any breach of climate obligations,” she explains.

“Specifically, the Citizens’ Assembly recommended that a new or existing independent body should be given a broad range of new functions and powers in legislation to urgently address climate change.

“It recommended specifically that such functions and powers should include ‘to pursue the State in legal proceedings to ensure that the State lives up to its legal obligations relating to climate change’.

“Depending on the outcome of the committee’s deliberations, we may well see some interesting new developments on legal mechanisms to deliver effective oversight and enforcement of the State’s climate obligations.”

While there may be a sense of momentum around climate litigators, Aoife O’Leary warns there is a long journey ahead so she has learned to treasure the small victories, such as the IMO agreement in April to set international shipping an emissions reduction target of 50% by 2050 — not as much as campaigners wanted but still a welcome achievement after tough negotiations.

“When you work in climate, you need to take your successes where you can and celebrate the little milestones on the road because there’s not going to be a dramatic change overnight.

“If we reduce emissions, it’s still going to take years to take effect,” she says.

“There are days when I think we’re all doomed but the agreement in April was definitely positive and every time we come together and agree something like that, it does give me hope.

“There is a lot of despair about — whether it’s the state of world politics or Trump pulling out of the Paris Agreement — but there is a lot of local action and that can develop into the world coming together and pulling together.

“I look at the way David Attenborough can engage people. He talked about plastics and people paid attention and now the world is looking at the problem of plastic. So there is a lot to be hopeful for. 

"That’s how I get up in the morning and put on a happy face and say let’s get to work.”

Greenpeace of actor Javier Bardem in the Greenpeace Submarine in the Antarctic. Pic: Greenpeace/PA Wire

Litigation in less developed countries

Taking a government or industry to court is always a brave move but in some countries, where human rights are poorly protected, it requires particular courage.

But while most climate litigation to date has taken place in wealthy nations, more cases are emerging in less developed countries.

As these countries are rarely significant carbon polluters themselves, the focus is more on pushing for climate adaptation measures to safeguard the lives and livelihoods of citizens who are affected by climate change caused by the polluting nations.

Poorer countries are the worst affected by climate change, with intensifying drought, floods, and storms rendering vast tracts of land uninhabitable, leading to ever greater levels of destitution, fuelling resource conflicts and creating climate refugees.

Such situations gave rise to the whole concept of climate justice or, more accurately, climate injustice.

While pushing domestic authorities to invest in the likes of soil rejuvenation, flood protection and climate-proof enterprises as alternatives to traditional livelihoods is the immediate aim in these countries, litigants also hope the same authorities will in turn apply pressure on their wealthier counterparts to change their ways.

One notable case is Ashgar Leghari v Federation of Pakistan, an action taken by a farmer who sued the government for failing to act on its own framework for the implementation of climate change policies — a document that was impressively detailed in its statements of intent but which was not backed up by resources and resolve.

Leghari argued that Pakistan was a victim of climate change and as such required “immediate remedial adaptation measures to cope with the disruptive climatic patterns”.

The court agreed, ruling: “The delay and lethargy of the state in implementing the framework offend the fundamental rights of the citizens.”

The rights referred to were the right to life, human dignity, information and property, all of which are enshrined in the Pakistani constitution.

In Colombia, a case taken by a coalition of rural communities, the Cumbre Agraria, Campesina, Etnica y Popular, succeeded in having a key piece of the national development plan declared unconstitutional.

The plan outlawed new oil, gas and mining operations in the country’s paramos, the tropical mountainous regions that not only supply 70% of the country’s drinking water but act as a vital and very efficient carbon capture system, but it did not restrict the activities of firms with pre-existing licences.

Activists press Government for clean living

Ireland’s National Mitigation Plan (NMP) had a difficult birth, a troubled upbringing and, if Friends of the Irish Environment have their way, it will meet a swift end.

The group have four days set aside next January to try to convince the High Court to direct the Government to scrap the plan and start again, next time producing one that is fit for purpose.

In its current form, FIE will argue, the NMP, which was overdue by the time it was published, is vague and weak and does not spell out the steps that industry, agriculture, transport, energy producers, the general public, and central government itself must take to reduce carbon emissions and safeguard the environment.

By those failings, they will argue, the NMP does not comply with the Climate Action and Low Carbon Development Act 2015, breaches a constitutional right to a healthy environment, and flouts human rights.

FIE has firepower. The national watchdog, the Climate Change Advisory Council, has been highly critical of the NMP, exactly for the reasons that it lacks detailed actions and specific deadlines.

Last week, the council further bolstered FIE’s case by warning in its latest review that the country was “completely off course” in terms of carbon reduction targets — not just the 2020 ones but also our 2030 and even 2050 ones.

The Environmental Protection Agency has delivered similar warnings, and the figures speak for themselves.

Under EU targets we must reduce carbon emissions by 20% below 1990 levels by 2020 which caps emissions at 45m tonnes.

Minister for Communications, Climate Action and Environment, Denis Naughten T.D. speaking at Smock Alley Theatre for the launch of Project Ireland 2040. Pic: Maxwell Photography

We have adopted a less onerous national target of a 20% reduction below 2005 levels — in itself is a cause for complaint by environmentalists — which would restrict emissions to 56m tonnes.

But emissions in 2016 were 66m tonnes and they are increasing by 2m tonnes a year.

That means we are not only failing ourselves and the EU, but also the 164 other countries who signed the landmark Paris Agreement in 2015 which committed all signatories to acting with urgency on climate change.

FIE’s case, lodged last October, got a boost a month later when judgement was delivered in a separate case in which the organisation was also involved.

That case challenged planning permission for a new runway at Dubin Airport, one of the grounds being the damage increased air travel and the associated emissions cause to the environment.

FIE argued that, under Article 40 of the Constitution, which states protection for personal rights, there was an unenumerated (inferred) right to an environment that was consistent with human dignity and the well-being of citizens.

The State argued that the Constitution could not be interpreted in this way and that environmental policy was a matter for the Oireachtas and government.

The same argument has been put forward by governments in other countries facing similar challenges.

In his judgment, however, Judge Matthew Barrett stated:

A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfilment of all human rights. It is an indispensable existential right that is enjoyed universally, yet which is vested personally as a right that presents and can be seen always to have presented, and to enjoy protection, under Article 40.3.1 of the Constitution.

“It is not so utopian a right that it can never be enforced. Once concretised into specific duties and obligations, its enforcement is entirely practicable.

"Even so, every dimension of the right to an environment that is consistent with the human dignity and well-being of citizens at large does not, for the reasons identified previously above, require to be apprehended and to be described in detail before that right can be recognised to exist.” In a nutshell, Mr Justice Barrett ruled that the citizens’ right to a healthy environment is enshrined in the Constitution, even if it not specifically mentioned there.

That ruling will undoubtedly be referenced early and often when FIE argue their new case starting January 22.

The exact nature of their submissions can not be made public yet because under Irish law, documents submitted to the courts can not be disclosed unless they are read out in an open sitting, or there is agreement between all parties that they can be made public, or there is a court order that they be made public.

FIE could not get the Government to agree to publish the documents and decided against seeking a court order as that would require a separate hearing with the possibility of a costs order against FIE if they lost.

That also means that case watchers won’t know exactly what arguments the Government plans to present until next January.

The Department of Communications, Climate Action and Environment would say only that it remained the intention to defend the case.

Legal case put climate on the agenda

Widely credited — or blamed, depending on your perspective — with kickstarting the current spate of climate litigation, the Urgenda case pushed climate change to the front of the Dutch political agenda.

In 2015, before the Urgenda judgement was delivered, three new coal-fired power plants were opened in the Netherlands — not what you’d expect from any climate-conscious state.

Earlier this month, the Dutch government unveiled new climate legislation which will shut two pre-existing coal plants within six years with the expensive newcomers to follow six years later.

That same legislation sets the Netherlands the toughest climate action targets of any country — cutting carbon emissions by half by 2030 (relative to 1990 levels), cutting them by 95% by 2050 and achieving 100% carbon neutral electricity production also by 2050.

That turnaround arguably began in 2013 when 886 Dutch citizens put their name to a legal action launched by the non-profit Urgenda Foundation.

For a country known for its windmills and its battle with sea levels, it seemed incongruous that the Netherlands would become the subject of the first major climate case.

Marjan Minnesma, director of environmental group Urgenda, arrives at the court in The Hague on May 28, 2018. Pic: Jerry Lampen/AFP/Getty Images

But that sense of lost green credentials — and the lost pride that went along with it — helped add to the discomfort the government felt at being hauled before the courts and a world jury.

The plaintiffs accused the government of negligence by knowingly contributing to temperature rise by failing to take sufficient action against carbon emissions, and argued the state was in breaching its constitutional duty of care to its citizens.

The Dutch government lodged a vigorous defence, arguing it was working collectively with other countries towards EU targets and it had a wide-ranging duty of care to the public which could not be defined by its actions in one area.

The three judges hearing the case disagreed, ruling: “The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts.

“Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country, the Netherlands should take the lead in this.” Those words have significance in Ireland where the tendency among ministers has been to point out that Ireland is a relatively small carbon polluter on a world scale or that if Irish farmers don’t continue to increase output (which leads to increased emissions), other countries will only take up the slack anyway.

The Dutch government continues to appeal the Urgenda ruling, however, on the principle that courts should not get involved in government policy.

Trump not happy to be listed in climate case

In the US, Donald Trump is among the defendants listed in a climate case and he’s not one bit happy about it.

But then it probably doesn’t help that the people who listed him are children.

They range in age from 11 to 22 — they were aged eight to 19 starting out — and come from 10 states, although half are in the state of Oregon, home to the lead plaintiff, Kelsey Cascadia Rose Juliana.

Kelsey was 19 when she and her co-plaintiffs, with the assistance of the Our Children’s Trust campaign group, filed their case in 2015 against the president personally, the office of the president, seven government departments and their secretaries [ministers], the US Environmental Protection Agency and numerous other federal agencies.

Barack Obama was president at the time and he left the case as a legacy to his successor who has been instructing his legal representatives to block its hearing any way possible.

They’ve been to the local court in Oregon and to the Supreme Court arguing for an end to “this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government”.

So far the courts have not agreed, although there is one ruling yet to be delivered, and Juliana v United States is scheduled for hearing beginning October 29.

The case is worded in a very personal way, drawing on the day to day lives and needs of the children and their hopes and dreams for the future.

In Kelsey’s case, it outlines how she depends on the freshwaters of Oregon for drinking water, for her seafood diet, and for recreation.

Acidification of the ocean, rising sea levels, soaring temperatures and vanishing rains are dramatically changing the environment that sustains her.

Oregon was suffering drought when she filed the case and three years on, conditions have worsened.

The national drought monitoring service says “abnormal dryness or drought” is affecting 99% of the state’s population.

Kelsey, who loves to swim, snorkel, raft and canoe, can’t enter the water much because of algal bloom. She can’t camp in summer because of wildfires.

Her love of cross-country skiing and snowshoeing is affected because the winter snows are diminishing.

In addition, the complaint states: “Defendants have caused psychological and emotional harm to Kelsey as a result of her fear of a changing climate, her knowledge of the impacts that will occur in her lifetime, and her knowledge that defendants are continuing to cause harms that threaten her life and wellbeing.

“As a result of the acts and omissions of defendants, Kelsey believes that she will not be able to continue to do all of the things described in the complaint for her life, health and enjoyment, nor will she one day be able to share those experiences with her children.”

Climate change has also had a profound effect on Sophie Kivlehan, 19, from Allentown, Pennsylvania.

“Extreme weather events, including Hurricane Sandy caused Sophie to miss school on many occasions; hailstorms have damaged her house; floodwaters often inundate roads by her house; and Sophie has even been forced to prepare for tornado warnings, which are very unusual for the area where she lives.

“Intense summer heat now diminishes Sophie’s ability to participate in and enjoy outdoor activities, including track and tennis.

"Sophie would like to have the ability to one day live in coastal cities like New York or Los Angeles, but rising sea levels may inundate these coastal areas within Sophie’s lifetime.”

Nick Venner, 16, from Lakewood, Colorado, is witnessing the destruction of his beloved forests by wildfires and pine beetle infestation caused by the rising temperatures, and the loss of his family’s fruit growing enterprise due to hail, rainstorms and drought.

His complaint says: “As a Catholic, he is drawn to the intersection between his church and environmental stewardship, and was inspired by Pope Francis’s 2015 encyclical, On Care For Our Common Ground.”

In fact, the Global Catholic Climate Movement, an umbrella group of Catholic organisations involved in work for climate justice, requested amicus or friend status in the case so that they could file a submission in support of the children.

The movement’s members in Ireland include Trócaire, the Jesuit Centre for Faith and Justice, the Society of African Missions, the Sisters of St John of God and the Presentation Sisters.

Climate expert and activist James Hansen and his granddaughter Sophie Kivlehan speak at a press conference at the COP 23 United Nations Climate Change Conference. Pic: Sean Gallup/Getty Images

Levi Draheim, 11, is from Indialantic, Florida, a narrow strip of island separated from the mainland by the Indian River, with the Atlantic lapping the other side.

Sea level studies commissioned by the neighbouring town of Satellite Beach warn the island is likely to be submerged, partially or wholly, by rising water levels and Levi faces losing his home.

In the meantime, the lagoon and beaches that form his natural playground are suffering, with dead fish, toxic bacteria and invasive seaweed a regular occurrence and the sea turtle population dwindling.

“Experiencing nature and wilderness in healthy conditions is important for Levi’s emotional wellbeing and his fears for the future of the beaches and springs in Florida and the wildlife that inhabit them are causing adverse psychological impacts to Levi,” his case states.

Similar experiences are described by the other plaintiffs who all say their lives and futures are irreparably affected by climate change, but their case doesn’t rely on human stories alone.

They argue that the federal government has known for decades that carbon pollution caused catastrophic climate change and that a massive reduction in emissions and a move away from fossil fuel was needed but, despite this, the extraction, production, consumption, transportation and export of fossil fuels was allowed to continue.

For scientific understanding of the impact of carbon concentration in the atmosphere, they can go back to the 1800s.

For warnings to the government, they go back to the 1950s. For international alarm, they can reference the 1980s.

By way of remedy, they want the court to declare that, by their actions, the defendants are dangerously interfering with a stable climate system and violating the plaintiffs’ constitutional rights to life, liberty and property as a result.

They also want the court to order the defendants to carry out a more accurate inventory of carbon emissions and to prepare and implement a national remedial plan that will phase out fossil fuel emissions and, most ambitiously, draw down the excess carbon already in the atmosphere.


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