National Geographic - Laura Parker
From Colombia to Pakistan to the Netherlands, kids are claiming a right to a clean environment—and sometimes winning.
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| People demonstrate in support of the plaintiffs in the climate change lawsuit Juliana v. U.S. in front of the Wayne L. Morse Courthouse in Eugene, Oregon. Photograph by Terray Sylvester, VWPics via AP |
When young people in the Netherlands sued their government for inaction on climate change, they unexpectedly won. In a
decision noted for its bluntness, the court ordered the government to curb carbon emissions 25 percent by next year.
Another ground-breaking success emerged last year in
Colombia,
where 25 young people won their lawsuit against the government for
failing to protect the Colombian Amazon rainforest. The court concluded
that deforestation violated the rights of both the youths and the
rainforest and ordered the government to reduce it to net zero by 2020.
And a seven-year-old girl in
Pakistan
gained the right to proceed with her climate change lawsuit on its
merits—establishing, in a first for Pakistan, the rights of a minor to
sue in court.
This trio of courtroom victories on three continents has become the
foundation of a global legal movement to compel governments to step up
and save the planet before it’s too late. Citizens are raising
constitutional claims to gain recognition of the fundamental right to
live in a healthy environment. Court decisions defending that right have
been made in more than 50 nations, where governments have been faulted
for a host of environmental sins that range from climate-risky
pension fund investments to simply failing to live up to commitments made in the Paris climate agreement.
Legal experts anticipate that the number of new lawsuits will only
grow as the scientific prognosis for the impacts of climate change
becomes increasingly dire.
“This is a direct response to the fact that we are waking up to the magnitude of the global crisis,” says
David Boyd, a law professor at the University of British Columbia and a United Nations special rapporteur on human rights.
Boyd, who specializes in environmental rights, catalogued legal
actions among UN member states and concluded that no other social or
economic right has spread as quickly through the world.
A People’s Right to a Healthy Environment
There are three mechanisms by which a country can recognize its citizens’ right to a clean environment:
1. constitutional guarantees;
2. national legislation; and
3. adherence to international conventions.
On this map we show how many of these mechanisms are available in each country. Countries with none are shown in white and include some of the largest democracies. But a total of 112 countries recognize environmental rights in their constitutions—the strongest guarantee.
Legal recognitions of environmental rights:
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NG Staff Source: David R.Boyd University Of British Columbia
Institute For Resources, Environment, And Sustainability
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Once dismissed as a “novel perspective,” the right to a healthy
environment is now considered legally established around the world, he
says. It is enshrined in the constitutions of more than 100 nations and
has been incorporated in legislation, treaties or in other documents of
at least 155 nations. Of the court cases based on a constitutional right
to a healthy environment, the majority are winning. And, in the cases
brought by young people, courts are receptive to recognizing that right
for future generations.
“What you see in this rising tide, led by children—who have the
greatest stake—of people saying to their governments: ‘You have failed.
We have rights and you need to abide by and protect those rights,’” says
Carroll Muffett, president and CEO of the Center for International Environmental Law, based in Washington and Geneva.
Influential cases
The seven-year-old’s case in Pakistan builds on the successful outcome of an earlier
lawsuit filed
by a farmer who claimed Pakistan’s failure to carry out its climate
commitments cost him his livelihood. The court found that “the delay and
lethargy of the State in implementing [climate policy] offend the
fundamental rights of citizens.” The court also ordered the creation of a
Climate Change Commission to monitor the government’s progress.
The Netherlands case eventually involved almost 900 Dutch citizen
plaintiffs from multiple generations. In 2015 the judges swiftly and
overwhelmingly rejected the government’s claim that near-term climate
action would be too expensive. The court-ordered remedy requires the
government, within a year, to make nearly twice the carbon emission cuts
made since 1990. To meet that target, the government has said it would
shut down a coal-fired
power plant in Amsterdam,
slated for closure at the end of 2024, by the end of this year.
Meanwhile it has appealed the decision to the Dutch supreme court.
The Dutch case has became the model for similarly fashioned lawsuits in Belgium,
Ireland, and
Canada, and it has inspired other climate cases in countries as far flung as
Uganda,
New Zealand,
Australia, and Norway. The Colombia case has had a similar impact. When
the youths there won their case, Boyd says, “Let me tell you, there
were lawyers in 100 other countries saying: how can we emulate that
decision? We’ve never had such a globally connected system.”
The exception may be the
case in the United States, where judges are traditionally immune from influence from international cases.
Juliana v. United States, named for lead plaintiff
Kelsey Juliana,
now a 23-year-old University of Oregon student, was filed against the
Obama administration in 2015, around the same time the Netherlands case
was decided. It’s being closely watched for the possibility that it may
write new precedents if it survives.
Litigation not always successful
If some see climate litigation as the last chance to slow global
warming, critics argue that turning policy and lawmaking over to judges
is misguided and will accomplish little more than to spawn the very
flood of litigation that advocates predict.
Michael Burger, executive director and CEO of the
Sabin Center for Climate Change Law
at Columbia University Law School in New York, says the swelling wave
of lawsuits should surprise no one, given the lumbering pace of
government action. At the moment, the
center
is tracking 1,039 cases ongoing in the United States and 283 in other
countries. The majority of them, unlike the youth cases, involve
enforcing existing environmental regulations and law.
“People are taking to the courts because governments are falling
short and when you have nowhere else to go, you go to court,” he says.
There are other drawbacks to litigation. Lawsuits move slowly too. The
Belgian
case stalled for three years over arguments about whether to proceed in
Dutch or French; the parties finally agreed on French. Court-ordered
solutions can be ineffective or unenforceable.
The decision last year in Colombia, for example, is considered one of
the most progressive and powerful in the region. But the court-ordered
plan to curb deforestation has so far generated more publicity than
government action, says Cesar Rodrigues-Garavito, the plaintiffs' lawyer
and founder of
Dejusticia, a Colombian human rights group. He has
called for his clients to mobilize to prod the government to move ahead.
Most of the countries with constitutional protections of
environmental rights are developing nations with newer constitutions,
Boyd says. Many are still emerging from the legacies of colonialism or
military dictatorship and struggling to deliver basic services to their
citizens. Those factors increase the odds against a court ordering a
climate remedy, say, that is actually enforced.
Even in Norway, where the
constitution,
which dates to 1814, is the world’s second-oldest after that of the
United States, protected rights don’t always win the day. Norway’s
constitution clearly details the right to a healthy environment and that
it be “safeguarded for future generations.”
Yet a
Norway court dismissed
efforts by Nordic youth and two non-governmental organizations to
prevent the government from granting licenses for oil and gas
exploration in the Barents Sea. The plaintiffs had argued that the
licenses would violate Norway’s commitment under the Paris climate
agreement as well as the Norwegian constitution. Although the court
agreed that the right to a healthy environment is a claimable right, it
concluded that the licenses would not violate it.
“Sometimes judges make bad decisions. They said this can’t be a
violation of Norway’s right to a healthy environment because the oil
will be exported,” Boyd says. “This case has a chance on appeal, which
will be heard this fall.”
New legal ground
The constitutional question is at the center of the U.S. case.
Government lawyers for both the Obama and Trump administrations have
argued from the start that no such constitutional right exists, and the
Trump administration has repeatedly tried to have the case thrown out of
court.
The United States is one of 38 UN member states lacking expressly
stated constitutional protections to a healthy environment. The youths
say such language is not necessary for courts to find in their favor.
They claim the federal government’s promotion of the production of
fossil fuels and indifference to the risks posed by greenhouse gas
emissions have created a “dangerous destabilizing climate system” that
threatens their rights to life, liberty and property, which are
contained in the Constitution. U.S. District Court Judge Anne Aiken
agreed with their claim and
ordered the case to be tried.
Recognizing environmental rights in that context would elevate the case into the realm of historic cases, including
Brown v. Board of Education, the 1954 decision that declared segregation of public schools unconstitutional, and
Roe v. Wade, the 1973 decision that recognized a constitutional right to access to abortion.
In arguments before a three-judge panel of the Ninth Circuit Court of Appeals earlier in June,
Jeffrey Clark, a U.S. assistant attorney general, called the lawsuit a “dagger at the separation of powers.”
He added: “This is a suit that is designed to circumvent a whole bunch of statutes.”
In an animated, hour-long hearing, the three-judge panel conveyed their skepticism to both Clark and
Julia Olson, the youths’ lead attorney.
“Look, you’re arguing for us to break new ground,”
Judge Andrew Hurwitz told
Olson. “I’m sympathetic to the problems you point out. But you
shouldn’t say this is an ordinary suit… You’re asking us to do a lot of
new stuff.”
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