First came the agreement. Now comes the litigation.
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| A picture taken on December 11, 2015 shows banners with messages related to global warming attached to an Eiffel Tower made of bistro chairs at the venue of the United Nations conference on climate change COP21 in Le Bourget, on the outskirts of Paris, on December 11, 2015. | Miguel Medina/AFP/Getty |
Countries backsliding on their pledges made at the Paris climate summit could soon get dragged into court by their own citizens.
The sweeping agreement reached last month does not place any legally binding requirements on nations to meet their emissions reduction targets. But environmentalists see litigation as their enforcement mechanism of choice if governments fall short of the agreement’s goals to curb global warming.
Other than public shaming, it’s the only way to hold nations accountable, legal experts say.
“One is the moral way, where countries tell each other ‘You should do what you promised,’ and the other is through courts,” said Marjan Minnesma, director of the Dutch environmental foundation Urgenda. “I expect, particularly because most governments say a lot but don’t do a lot, there will be more chances for groups to say the government is not doing enough to protect its citizens.”
Urgenda paved the way for the legal strategy when, in June 2015, it became the first in the world to win a civil suit arguing that a government’s — in this case, the Netherlands — climate policy falls short of protecting its citizens.
Similar cases have already cropped up in Belgium and New Zealand, and more could come as countries begin to devise and implement policies aimed at meeting the goals set out in the Paris framework. The legal threat mounts once the deal takes effect in 2020.
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Marjan Minnesma, director of environmental group Urgenda. EPA
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The Paris agreement, reached after two weeks of marathon negotiations, is the first to set rules for the whole world — 195 countries, plus the European Union. It sets a goal of limiting global warming to “well below” 2 degrees Celsius, and eventually 1.5 degrees, by the end of the century, and to create a balance between the carbon dioxide that humans emit and what is naturally absorbed by the second half of the century.
The binding part of the deal requires countries to set emission reduction targets, develop the policies for meeting them, publicly report their progress every five years starting in 2023, and update and enhance their targets after each review. But what the agreement doesn’t dictate is the size of those emissions reductions, or the tactics that countries should take to reach them.
This is where individuals, NGOs and other advocacy groups come in. If they feel that a government policy falls short of the agreement’s goals, they could take it to court.
Urgenda, joined by 900 co-plaintiffs, seized on an agreement governments reached at the United Nations’ 2010 climate change summit in Cancun, which recognized that wealthy developed countries would have to reduce their greenhouse gas emissions by 25 to 40 percent by 2020, compared to 1990 levels, in order avoid the worst effects of climate change.
The EU’s goal of cutting the bloc’s emissions by 20 percent by 2020, however, meant the Netherlands would only need to make a 17 percent reduction. A district court in The Hague sided with Urgenda and ordered the government to raise its target to 25 percent by 2020. The Dutch government announced it would appeal two months later.
“Our court case is based on civil law saying there is a very high danger, and therefore the government should protect its citizens,” said Minnesma. “It’s not using the climate change treaty directly, only indirectly.”
The Paris agreement further raises the benchmark against which groups and citizens can measure whether a government is doing enough to protect its citizens, by hiking the global goal to a temperature limit of 1.5 degrees, according to legal experts.
‘Highly controversial’
The issue of how climate change policies fit under a government’s duty to protect its people is a new one for courts, said Lucas Bergkamp, a partner at the law firm Hunton & Williams focused on environmental law.
“To the extent that courts perceive climate change as an existential threat, and to the extent they believe the body politic fails to address it, courts may be inclined to rule in the favor of climate activists because otherwise the world will go down the drain — that’s how they might look at it,” he said.
Bergkamp said the Urgenda ruling is “highly controversial” and “legally doubtful” because it oversteps laws on the separation of powers. Still, he added, “it is certainly a risk that has become much greater with the Paris agreement.”
A lawsuit echoing Urgenda’s claims emerged in Belgium last year, when the Klimaazaak (Climate Action) organization demanded that the federal government, as well as Flemish, Walloon and Brussels regional governments, reduce the country’s carbon dioxide emissions by 40 percent by 2020. Belgium is on track to miss its EU-mandated goal of a 15 percent reduction by 2020.
Similarly, a law student in New Zealand filed a suit in November claiming that the government had failed to make sure that its goal of reducing emissions by 11 percent by 2030, from 1990, fell in line with research from the Intergovernmental Panel on Climate Change.
In the Philippines, meanwhile, groups filed a petition with the country’s Commission on Human Rights in September claiming that 50 “carbon majors,” including ExxonMobil, Chevron and Lukoil, had violated human rights by knowingly contributing to climate change.
Still, some countries have legal systems that make such lawsuits less likely, experts said. In the U.K., cases filed in national courts have to be based on national laws. The U.S. has a political question doctrine that encourages federal courts to show respect for other branches of government.
Views vary on how effectively the Paris agreement can be enforced.
Bergkamp claims it will be difficult because countries do not face the risk of sanctions or penalties for breaching the agreement, as they would under international trade deals. Others argue that by forcing countries to review and report their progress every five years, and raise their targets, the agreement encourages them to act out of fear of being named and shamed.
“If countries breach those hard obligations, then they will pay the price in reputation and political terms,” said Jonathan Church, an environmental lawyer at the activist law firm ClientEarth.
And if calling out laggards fails to incite action against climate change, the international reporting requirements could help to fuel lawsuits by providing data to back up claims.
“The idea that every government will be presenting a lot more information about how their economies operate and the scale of their emissions is quite an important development,” said Kurt Winter, another ClientEarth lawyer.
“It can help with actually coordinating evidence of whether or not governments are complying with targets, and whether a case can be launched.”
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