The Rise of Citizen Lawsuits for Environmental Change

Written by on November 05, 2018. Posted in Climate change

Urgenda Foundation v Kingdom of the Netherlands

Recently, on October 9, 2018, The Hague Court of Appeal made an unprecedented ruling in finding that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its commitment of reducing its greenhouse gas emissions.

The decision of the Hague Court of Appeal is an important victory for climate change. The decision confirmed that the Dutch government had to meet its commitment on cutting greenhouse gas emissions and ordered it to ensure reductions of a minimum of 25 percent from 1990 levels by 2020 as opposed to the 17 percent goal being implemented. The Court found that anything less represented a breach of promises made in the Paris Agreement of 2015, would not be a reasonable and fair contribution for meeting internationally agreed upon emissions targets, and violated the human rights of the 886 citizens who initiated the case.

After hearing scientific evidence from the Intergovernmental Panel on Climate Change (“IPCC”) reports the Dutch Court concluded “a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life.” and found that “the state has a duty to protect against this real threat.”  The Court of Appeal confirmed that the State (ie. the Kingdom of the Netherlands) has a duty of care to its citizens pursuant to Articles 2 and 8 of the European Convention on Human Rights (“ECHR”) to reduce greenhouse gases by at least 25 percent, relative to the 1990 emission level. All of the defences raised by the State were dismissed.

In support of its arguments Ugenda claimed:

… that the State has acted unlawfully towards it, because such conduct violates proper social conduct and is contrary to the positive and negative duty of care expressed in Articles 2 (the right to life) and 8 ECHR (the right to family life, which also covers the right to be protected from harmful environmental influences of a nature and scope this serious).  

In confirming the existence of a duty of care by the State, the Court of Appeal stated that: the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life.

The Court also found that it ”believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life. As has been considered above by the Court, it follows from Articles 2 and 8 ECHR that the State has a duty to protect against this real threat.

While the decision of the Hague Court of Appeal represents a landmark ruling on the issue of a right of citizens to a healthy environment and finding that the state owed a duty of care to its citizens it remains to be seen whether or not this decision will persuade other jurisdictions to make similar rulings.

In the UK, Plan B Earth is a charitable organization focused on the implementation of the goals of the Paris Agreement on climate change. Plan B Earth filed, on behalf of 11 citizens, a climate change lawsuit against the Secretary of State of Business, Energy and Industrial Strategy alleging the violation of the Climate Change Act 2008 and other statutory obligations by failing to revise the UK’s 2050 reduction target taking into consideration new developments in international law and the scientific community.  On July 20, 2018 the UK High Court found that Plan B Earth’s claims were not arguable and denied permission for the case to proceed.  Plan B Earth has appealed this decision arguing amongst other things that the judge had misinterpreted the obligations under Article 2(1)(a) of the Paris Agreement.

In the United States, 21 Americans ranging in age from 11 to 22 filed a claim (Our Children’s Trust) initially in the U.S District Court for the District of Oregon in 2015 arguing a fundamental right to live in a world with a stable climate system.  The “Climate Kids” case is based on the legal principle grounded in the public trust doctrine – arguing that the climate should be held in public trust for the benefit of present and future generations.  The U.S. Ninth Circuit Court of Appeals twice ruled that the case should proceed to a trial on its merits. The Supreme Court, while commenting that the breadth of the claims denied the Trump administration’s request to stop the suit from proceeding on March 7, 2018.  The trial date set was originally set for October 29, 2018. This case has become known as the Juliana case named after the lead plaintiff Kelsey Juliana.

In October 2018 the Trump administration filed subsequent motions to stay discovery and a third writ of mandamus petition. On October 19, 2018 the U.S. Supreme Court ordered a temporary, administrative stay requesting that the plaintiffs respond to the federal government’s petition. The plaintiffs have filed their respond and requested that the Court allow their trial to proceed. At the time of writing this blog it remains to be seen whether or not the Juliana case will be allowed to proceed without incurring additional delay.

Currently there are approximately 110 countries that recognize a right to a healthy environment in its constitution.  Quebec is the only province in Canada that recognizes a right to a health environment in its human rights legislation while Ontario, Quebec and the three territories recognize the right in environmental legislation.  The seven remaining provinces of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador have no legally recognized right to live in a healthy environment.