An Inconvenient Suit: Fighting Climate Change in Court

Photo credit: Urgenda / Chantal Bekker               Urgenda Attorney Roger Cox, left, celebrating the verdict with co-plaintiff Maurits Groen.

For the first time ever, a court has ordered a government to protect its citizens from climate change, and mandated that emissions be dramatically cut.

Nine hundred Dutch citizens sued their government – and won – over its inaction.

The historic decision in the Netherlands comes just five months ahead of the all-important annual international climate conference (this year in Paris)–and is already inspiring similar actions in other countries.

The decision raises the specter of a global civil movement to hold governments accountable, even in the United States, where action may be especially difficult. In Washington State, a group of kids have won a lawsuit forcing the Department of Ecology to “consider the undisputed current science necessary for climate recovery.”

The next few weeks will determine how quickly such legal victories translate into policies that reduce the amount of carbon in our air.

“Only the Law Can Save Us Now”

The plaintiffs’ lawyer, Roger Cox, broke down in tears after the June 24 verdict. For years, he has argued, “only the law can save us now.”

The Dutch government has until September 24 to appeal the decision, a process that could take up to two years. Otherwise, it will have to cut greenhouse gas emissions by 25 percent within five years.

Climate change research shows that time is critical for low-lying Holland—a country that could cease to exist within a century. According to a just-released study, global sea levels would rise by at least 20 feet even if fossil fuels use ceased tomorrow.

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Judges in the district court in The Hague ruled the Dutch government is acting illegally by not doing its share “to prevent the threats caused by climate change [and] to care for the protection and improvement of the environment.”

Current policies target a reduction of 16 percent from 1990 levels; the court order increases the cuts in CO2 emissions to 25 percent, by 2020.

The judges cited the scientific consensus that only a drastic drop in CO2 emissions can prevent a global temperature rise of more than 2°C. Their decision refers to the recommendation of the UN Intergovernmental Panel on Climate Change that developed countries aim for reductions of 25 percent to 40 percent.

Within the EU, Denmark and Germany are already on course to cut 40 percent of their CO2 emissions by 2020. The United States is committed to reductions of 26-28 percent, though later—by 2025–and starting from much higher 2005 baselines.

Breathtakingly Unequivocal

The Dutch environmental group Urgenda started legal proceedings in 2012 with the support of American climate scientist James Hansen, who is now involved in 11 legal cases. The co-plaintiffs included children, grandparents, teachers, students, businessmen and women, the well-known DJ Gregor Salto, national weatherman Reinier van den Berg, and the wife of the late Wubbo Ockels, the first Dutch astronaut. Urgenda has made the verdict available in English for people anywhere in the world who want to follow their example.

The Dutch court’s decision is in sync with the legal reasoning behind the Oslo Principles on Global Climate Change, released as the case went to court this past March. The Principles are the work of a panel of international judges and legal experts from heavily polluting countries such as the US, China, India and Brazil. The panel gathered in the Norwegian capital to answer the question: does human rights (and other) law require a state to reduce carbon emissions – even in the absence of a specific treaty?

The conclusion is breathtakingly unequivocal: “Regardless of the existence of international agreements, governments already have a legal obligation to avert the harmful effects of climate change, based on existing international human rights law, environmental law and tort law.” Respect for the role of scientific consensus is the heart of the matter. “Law,” the experts say, “is the bridge between scientific knowledge and political action.”

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The Oslo Principles can be read as the definitive, authoritative “just do it!”

A Dream Team of legal minds deliberated and concluded that there is no reason to wait for 195 governments to engage in complex policy negotiations and make empty promises at the upcoming Climate Summit in Paris.

Governments are already in violation of the law where climate change is concerned. By asserting their rights, citizens can hold them accountable and force them to act now.

In his book Revolution Justified, Roger Cox outlines a legal strategy to force governments to address climate change. He firmly believes that judges can save us—that it is time for the judiciary to step in and avert a catastrophe.

Almost every country in the world has tort law that enshrines the fundamental power of the court to prevent harm. It’s at the heart of most civil lawsuits. Says Cox: “Our laws and our courts are the only remaining tools in our democracy to free ourselves from the dangers that our governments pose.”

America, Take Heed

Cox is quick to point out that many elements in the verdict against the Netherlands will readily apply to lawsuits in other countries (lawsuits are being prepared in Belgium, Norway and the Philippines). He told WhoWhatWhy that legal action could “de-politicize” climate change, particularly in the United States.

“I would want the American public to take two things away from this verdict: first, there’s no debate in a court of law about climate science, the proof is as strong as in asbestos and tobacco cases. The other thing is that, given the scientific facts, there is no question as to if companies and governments will be held liable for climate change. It’s only a question of when, as more and more judges around the world agree that the law should play a role in settling this issue.”

So could a high-court judge in the United States rule that the American stance on climate change is illegal? Not for now, it seems, at least not without some kind of fundamental change of thinking on the parts of judges who in many cases came in with strong pro-corporate orientations.

,” says Andrea Rogers, an attorney for the Western Environmental Law Center. She represents Our Children’s Trust, an NGO that files lawsuits on behalf of children, petitioning the government to protect their future. “We’ve already filed those cases and we’ve lost in every state and against the Federal government. The arguments they used in The Netherlands we’ve been using in the United States for the last four years. US courts are not willing to go where the Netherlands courts were willing to go.”

Our Children’s Trust was founded in 2010 by Oregon attorney Julia Olson. At the time, she was seven months pregnant. Her decision to invite kids to become plaintiffs in suits against the government was partly inspired by the 1954 Supreme Court case, Brown v. Board of Education.

The organization launched litigation on Mother’s Day in 2011 to compel government action on climate change. It has grounded its legal arguments in the Public Trust Doctrine—the duty of the government to protect the natural resources that are essential for collective survival and prosperity.

So far, this “atmospheric trust litigation” has had limited success. While judges in Texas and New Mexico agreed that the atmosphere is part of the public trust, the courts have generally ruled that responsibility for dealing with the climate crisis lies with the legislative branch—in other words, relief from the consequences of climate change is a matter for political debate, not an inherent constitutional right.

In Oregon, a judge responded to one of the group’s lawsuits by questioning whether “the atmosphere is a ‘natural resource’ at all, much less one to which the public trust doctrine applies” and considering it “difficult to imagine how the atmosphere can be entirely alienated.”

19-Year Old Wisdom

For 19-year-old plaintiff Kelsey Juliana, the opinion was a “message to all citizens that none of the three branches of government can be trusted to ensure our future.”

In the wake of such rulings, Our Children’s Trust changed its legal tactics and is now directing its lawsuits against government agencies. It scored its first real victory in the State of Washington . In a severe legal rebuke, a superior court judge ordered the state’s Department of Ecology to consider the most current and best available climate science in regulating carbon dioxide emissions.

Rogers cites the 2007 court ruling of Massachusetts vs. EPA as the most promising legal precedent. That decision forced the Environmental Protection Agency to recognize that greenhouse-gas pollution from vehicles could “endanger public health or welfare” and to issue emissions standards for new cars. “We have agencies that are given the authority to regulate and protect our natural resources,” Rogers explains. “It’s time that they do that. When they don’t, they can be held legally responsible for failing to do so.”

The plaintiffs in the Washington case – Zoe & Stella Foster v. Washington Department of Ecology – are eight children, ages 11 to 15, who are spending their summer in the courtroom rather than at the beach, litigating on behalf of themselves and future generations. Before the end of July, they will hold meetings with Washington’s Governor Jay Inslee and then with the department of Ecology on July 29. The department has until August 7^th to respond to their demand that it “adopt a proposed rule that would recommend to the legislature limitation of greenhouse gas emissions consistent with current scientific assessments.”

Presumably, the politicians and state officials will try to convince the young climate change activists to lower their expectations. But Rogers says her clients are only willing to compromise on how their goal is achieved, not the goal itself. “The youth are very clear about what they are asking for, based on the best available science. We have to reduce our greenhouse gas emissions by 4 percent per year starting in 2016. Our hope is that the Department of Ecology is willing to agree with us on that. If not, we will continue to litigate the case.”

“Going into the settlements…what we’re doing is so monumental,” says 14-year-old petitioner Wren Wagenbach. “This is the first time something like this has happened in America!”

You state “it wont work here.” But below, you have the same organization proceeding with other lawsuits against the government that appear to contradict that. Please reset this up so it makes sense.

Is the point here that federal suits wont work but state suits might? If so, say that.

Roger Cox

Urgenda / YouTube

https://www.youtube.com/watch?t=14&v=GQfa-htZVC0

Kelsey Juliana

Sam Beebe / Flickr

https://www.flickr.com/photos/sbeebe/6962463017/in/[email protected]/

Climate Map

Surging Seasons / Interactive Map

http://sealevel.climatecentral.org/

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