The role of climate change litigation

INTERVIEW WITH SOPHIE MARJANAC, CLIMATE ACCOUNTABILITY LEAD, CLIENTEARTH. INTERVIEWED BY ANDY SYMINGTON.

SOPHIE MARJANAC

Sophie joined ClientEarth (1) in November 2015 and is now the Climate Accountability Lead working on a range of climate change litigation and advocacy strategies using the power of the law to align states and companies with the goals of the Paris Agreement. She is the lead lawyer in the Torres Strait Climate Justice Case (2). Prior to joining ClientEarth, Sophie was a senior lawyer at Clayton Utz, where she specialised in environmental and planning law. She has also previously worked in native title law in the Torres Strait. Sophie was awarded a Bachelor of Laws with first class honours and a Bachelor of International Studies with distinction from the University of New South Wales in 2009.

What do you feel is the role of litigation in achieving climate justice?

Litigation is certainly one lever, one piece of the puzzle. I don’t think it is necessarily the silver bullet; real change comes from social movements more broadly, however litigation can buttress changes in social norms and expectations. When injustice is recognised, the law can provide accountability and harden those social norms through time. We need all types of strategies and tools to achieve the goals of environmental and climate justice and litigation is certainly being tried at the moment, with a huge wave of cases being brought around the world. Obviously, there has been landmark litigation in the past that has brought incredible change in fields such as civil rights – look at the Mabo decision – and we hope that there will be similar cases that bring watershed moments for environmental justice.

From international and regional down to local law, what is it that you first look at?

Climate change is such a multi-scalar problem; part of the reason that it has been so difficult to tackle is that it goes from the macro down to the micro. International diplomacy and the United Nations Framework Convention on Climate Change (UNFCCC) process really matter to climate change, but so do drainage on floodplains and building standards, for example. I would say that the breadth and diversity and range of climate change litigation is definitely one of its distinguishing features, and our work is very wide-ranging and spans multiple jurisdictions, topics and themes. At ClientEarth we believe that we need to be very broad in our thinking because of the nature of the environmental problems we are tackling.

So you are looking at targeting both governments and companies?

Yes, absolutely. For example we are working with 350 Australia (3) to bring a case against the Australian government on behalf of eight Torres Strait Islander claimants. It’s the first (4) climate change case against Australia to be argued on human rights grounds under the International Covenant on Civil and Political Rights. We are also working on the UK’s continuing compliance with the Climate Change Act, we’re looking at local planning (5) law in the UK and what duties local authorities have to integrate climate considerations into the local planning framework. And then we also bring claims against companies, for example we recently (6) complained under an OECD mechanism about a BP advertising campaign, which it later dropped. We use corporate and financial law and leverage the financial risks that climate change poses to large companies to encourage them to take action; most recently (7) we stopped a planned coal-fired power plant in Poland by taking action as a shareholder.

Do you find ever that government or companies are relieved to have litigation brought because maybe they can’t get traction on an issue politically or within the company?

Absolutely. Often in government the issue might not be the people in the department responsible for making the change, the issue might be their inability to get the funding. We have had the experience in the UK of being told that we act as a counterpoint to the objections of developers, who are often particularly influential in local government. Public interest environmental lawyers and litigation can play a role beyond simply success; we can open political space for conversation and for action within branches of government.

There are so many different drivers of climate change. Do you find that litigation is more effective in certain areas than others?

Often the biggest and most helpful levers are actually not climate-related laws, they are laws regulating other emissions. For example, a European directive to improve air quality in cities and protect human health has underpinned much of our clean air litigation across Europe.

For instance, our cases in the UK and Germany resulted in courts ordering authorities to introduce drastic measures to reduce pollution from traffic in cities. Our litigation and campaigns have been really influential in bringing pollution and air quality to the attention of the public. The combination of looming restrictions on diesel vehicles, increased awareness about air quality and the Dieselgate scandal are driving diesel out of the EU car market and accelerating the transition to zero emissions mobility. So that has been a really interesting example of how strategic litigation has played into an overall systemic shift in the automotive sector.

Also the regulation of emissions to air is really forcing the closure of a lot of European coal plants across the continent because the cost of retrofit often exceeds the income from the very old facilities. So there is an interaction between overall climate benefit and the transition to a low-carbon economy and the regulation of air quality. Which is good, because that’s a win-win.

Do you feel that it is often more effective using this kind of more specific legislation than, say, the right to health under international human rights law?

We try to do both. We regularly invoke human rights arguments before the Court of Justice of the EU. The right to life and the protection of human health are central in our clean air cases under EU air quality laws. But we also aim at enforcing the right to healthy environment independently. For instance, ClientEarth was granted leave to file an amicus curiae before the European Court of Human Rights in a case originating from the south of Italy and concerning severe environmental pollution. Our submission supports the application of environmental principles (such as the precautionary principle) in human rights cases, in order to ensure stronger and earlier protection. Enforcing air quality laws is an important part of not only improving air quality for human health but also encouraging lower carbon alternatives and technologies.

What do you see as the role of the UN in climate litigation?

I think that the UN treaty bodies are crucial in interpreting and enunciating the obligations of states under the human rights treaties, which are living instruments that must evolve through time to meet modern challenges, which include these real threats to human rights that are arising from pollution and from climate change.

Do you think governments pay enough attention to those interpretations?

Well, Australia obviously doesn’t! The problem is that Australia’s constitutional framework is fundamentally bereft of individual protections. Generally, other governments do tend to pay more attention to what the UN treaty bodies say. Overall, there are many current threats to not just the concept of human rights but the enforcement through the UN system, which has taken quite a lot of criticism in the last few years. Currently, civil rights are being infringed in many states, globally it is a tough time for human rights but I hope that current social movements and the pandemic will help people to see the value of human rights and be reminded of why these instruments were created in the first place.

The fundamental tension between the political and judicial branches of power is always an issue that you need to overcome but I think more and more we are seeing courts starting to accept that there are minimum standards that should be applied and that environmental harm does impact human rights. As the environmental crises worsen we will see these direct impacts even more starkly. I think that is the way that the law develops, by not interfering in the political process but by saying that the state does have to meet certain core obligations to protect its citizens.

There’s a lot said about individual responsibility for climate change - what people can do in their own lives. Do you think that this can sometimes pull focus from government and corporate accountability?

Absolutely it can. Unfortunately I think so much damage has been done to the environmental movement because people feel that they can’t speak up because they are still consuming or travelling for example. We all are. That doesn’t mean that you can’t speak up and say that a better system is possible.

Frankly, it was the PR firms for the oil companies in the noughties who drove the personal responsibility narrative, and they did a great job of silencing people and making them think that the problems are too big to be solved, which is not true. Covid has shown that things that seemed impossible are just actually choices in how we organise our societies.

Having said that, individual responsibility can also drive change; if you look at plastics, much of the growing pressure on the industry to change has come from the bottom up, from consumers telling companies to do better. But it certainly shouldn’t be used as an excuse or as a reason to discount the fundamental need for systemic change which, at the end of the day, I think will be more powerful in tackling these global issues.

1. https://www.clientearth.org/why-clientearth/

2. https://ourislandsourhome.com.au/

3. https://ourislandsourhome.com.au/

4. https://www.openglobalrights.org/matters-of-national-survivalclimate-change-beyond-courts/

5. https://www.clientearth.org/climate-lawyers-put-local-authoritieson-notice/

6. https://www.clientearth.org/the-whole-truth/

7. https://www.clientearth.org/major-court-win-shows-power-ofcorporate-law-to-fight-climate-change/