EcoBeat Staff – Forcing climate action through the court system has been a dream of environmentalists for years, yet it has never truly come to fruition. Until now.
A recent lawsuit in the Netherlands set an incredible new precedent in environmental law with the potential to set off a ripple effect worldwide, with Australian groups already following suit.
The Urgenda Foundation filed a suit against the Dutch government arguing that protection from global warming is a fundamental human right. More specifically, the Foundation argued that emissions should be reduced by 25-40% of 1990s levels by 2020 in order to bring the country in line with the Intergovernmental Panel on Climate Change’s recommendations for avoiding a two-degree Celsius rise in global temperatures. Initial plans had the country on track to reduce their emissions by 14-17% of 1990 levels by 2020; however, the Urgenda Foundation stated such plans did not meet the government’s obligation to protect its citizens by pulling the nations weight in the global battle against climate change.
The decision in favor of Urgenda is becoming one of the most well studied environmental lawsuits in recent memory as environmental activists look for ways around the political stalemate on climate change and emissions reduction targets. Specifically, the framing of the issue is unlike any prior climate lawsuit in recent memory.
Cases in Chicago, Illinois and Eugene, Oregon attempted to accomplish similar objectives in the United States over the past several years. In Chicago, a team of insurance companies including Illinois Farmers Insurance Co., partnered up to sue the state for failing to properly adapt its infrastructure to protect against climate change. They argued that the science around climate change now makes the risks of floods such as those in 2013 far more predictable, which means the companies should not be shouldering the burden of paying out for reconstruction post-disaster. In other words, insurance companies are meant to protect against accidents, these risks are predictable and should therefore be covered by the state. Courts ruled against the insurance companies in that instance.
A commons-based approach was taken by students in Eugene, a case that made it all the way to the state’s circuit court system. Two teenagers partnered with the the nonprofit organization Our Children’s Trust, which has supported similar unsuccessful lawsuits nationwide. Their argument centered around Oregon’s public trust doctrine, which states public lands and waters must be protected for the use of future generations. The students debated that the atmosphere should be included in the doctrine and the state was therefore failing to implement satisfactorily stringent climate goals to protect future generations, going so far as to demand a decrease of 75% emissions below 1990s levels by 2050. The case had initially been thrown out, with Judge Rasmussen citing the state’s relatively progressive climate track record and the fact the courts felt it crossed the boundary separating the legislative and judicial branches. Oregon’s Court of Appeals then sent it back for trial, saying the grounds were substantial enough to warrant a full court proceeding. Despite hearing further oral arguments, Rasmussen issued a ruling in favor of the state in May.
While both of these cases in the United States represented creative approaches to suing the state, their failure highlights the difficulty environmentalists have had in finding the path to court-based climate action. The human rights based approach of the Dutch represents a new path, and one that has the potential to proliferate across nation state boundaries because of the existence of such wide-reaching international obligations as the United Nations Universal Declaration of Human Rights. As groups in countries like Australia begin to file lawsuits in the same vein as the Dutch, one can only hope the coming years bring a judicial climate action revolution.