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From Megaphones to Magistrates: Climate Activism is Turning to the Courtroom by Eoin Gormley
From Megaphones to Magistrates: Climate Activism is Turning to the Courtroom
By Eoin Gormley, JS Law and Political Science
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Symbols associated with climate activism might include banners and placards as the visibility of environmental NGOs has come primarily in the form of mass street protests. However, case files and judge’s mallets are becoming equally synonymous with environmental lobby groups in recent years as many have been taking to the world’s courtrooms to demand better climate policy making from their governments.
Climate-related court cases are certainly not alien to the legal system. More localised cases such as tort proceedings pertaining to pollution and environmental damage have been commonplace in both civil and common law jurisdictions for quite some time. So too have more high-profile cases against large corporations- negligent as to the adverse impact of their operations on the planet. However, climate cases of a novel nature have been making their way to courts across the globe. These cases involve claims taken directly against the state, seeking judicial intervention to compel governments to take better action on environmental matters.
The Domino effect of Urgenda
Many credit the Dutch Climate NGO Urgenda as being the catalyst for this new type of environmental activism. Netherlands v Urgenda Foundation was first heard in 2013 by a district court in the Hague, and later heard by the country’s Supreme Court on appeal by the Dutch government. Due to the monist legal system in the Netherlands, under which its domestic and constitutional law remains subordinate to binding international law, Urgenda was able to take their government to court based on unfulfilled international legal obligations. They argued that the Dutch government was not doing enough to reduce its carbon emissions, therefore violating its international obligations as laid out in Annex I of the United Nations Framework Convention on Climate Change. In both instances, the NGO’s claim was upheld. The court gave precise orders to the Dutch Government to cut its emissions by at least twenty five per cent within five years, as was asked of them in the UN Framework, instead of the seventeen per cent reduction that the government planned to make. The judgment was described as a “landmark ruling” by James Thornton of Client Earth who predicted that the Dutch Court’s reasoning “will certainly be used by courts in other countries.”
Thorton was proved right as climate activists across the globe followed Urgenda’s lead by taking on their own governments in court. According to the United Nations 2020 Global Climate Litigation report, the amount of climate cases across the globe has nearly doubled since 2017, with annual cases increasing from 884 to 1550. Many of these cases were high-profile victories for environmental NGOs, as activists from countries including the UK, South Africa, and Norway have successfully influenced their Government’s climate policies on the back of successful litigation. For example, as recently as February of this year, the Administrative Court of Paris found the French state guilty of “non-respect of its engagements” aimed at combating global warming, after a group of climate NGOs brought a challenge against the Government on the matter in Notre Affaire à Tous and Others v France.
One of the most high-profile post-Urgenda cases was taken in Ireland by a group of climate activists who became the second NGO in the world to successfully challenge government climate policy in the highest court in the land. Friends of the Irish Environment v Government of Ireland (known also as “Climate Case Ireland”) was decided
Legal Page 48 in July 2020 after it was fast-tracked to the Supreme Court due to its “general public and legal importance.” While the appellants could not appeal to international law as Urgenda could in the Netherlands, they instead mounted a challenge based against the legality of a Government policy instrument, namely the 2017 National Mitigation Plan. The 2015 Climate Act established a framework to produce a “low carbon, climate-resilient and environmentally sustainable economy by the end of the year 2050,” which formed the basis for the establishment of the 2017 National Mitigation Plan to achieve these ends. However, Friends of the Irish Environment claimed that this plan did not go far enough to achieve the goals as laid out in the Act, and should therefore be deemed ultra vires. The seven-person Supreme Court agreed with their contestations, deciding in July that the plan fell “well short of the ambitions laid out in the Act” and should be reformulated and improved by the Government.
Climate Cases: Moral Victories or Game Changers?
This recent increase in litigation can be seen as a new chapter in climate activism. While public pressure and protest has led to climate change becoming a more serious issue on government agendas, protesters have now seized an opportunity to take their grievances into the world’s courtrooms and hold decision-makers accountable for their non-fulfilment of previous climate commitments. Before now, high-profile climate cases have only focused on altering the actions of private entities. Now, it is national Governments that are being put on the stand for their poor environmental policy making. However, whilst these court cases are drawing the attention of both the public and the media worldwide, a question must be asked: are court cases of this kind an effective means of forwarding the green agenda?
It is true that those that take climate cases can often fail to win a ruling that leads to significant, measurable change and achieve only “moral victories.” This is due in large part to courts reluctance to involve themselves with policy making, a function that has been traditionally left solely to the legislative branch of government. Such was the case in Thompson v Minister for Climate Change Issues [2017] when the New Zealand High Court could only go as far as to acknowledge shortcomings in former Environment Minister Paula Bennett’s climate action plan rather than carry out a full judicial review. This was due to the fact that there was a change in Government, and Jacinda Arden’s new Labour government planned to renew their strategy anyway. Similarly, while the Administrative Court in Notre Affaire à Tous and Others v France convicted the French government for its climate policy failings, this only resulted in a symbolic award of one euro to the appellant activists. The Court instead ordered the French Government repay the NGOs by reforming their climate strategy, saying that this would serve as compensation “in kind.” Whether meaningful policy change will occur on the back of this ruling or if it is just another moral victory for an environmental NGO in the courtroom remains to be seen.
However, as seen in the Netherlands and Ireland, courts have been able to force serious policy revisions by striking down legislation and setting specific targets for governments - showing that courts can have a very tangible impact on climate policymaking, and that climate case victories are not always moral victories. Furthermore, cases such as Urgenda and “Climate Case Ireland” set a precedent insofar as allowing the judiciary to assess governments’ responses to the climate crisis through formal legal channels. This makes it possible for activists to legally compel, rather than to lobby for change. Moreover, some might say that it gives climate NGOs a more legitimate basis from which to carry out their work. Proactive climate policies can often be dismissed on political grounds, but with the intervention of an independent judiciary, arguments for improving environmental legislation can be framed as necessary societal and institutional reforms rather than partisan political complaints. Urgenda and subsequent cases have gone a long way to constructing such a narrative.
Although taking a government to Court may not be the silver bullet when it comes to reducing pollution and reaching emissions targets, climate cases have been a worthwhile tool in promoting the green agenda. Urgenda already looks to have had a lasting impact on the near future of climate activism by incentivising many other high profile court cases across the world. Street marches will always have their place in the work of climate activists, but climate litigation will play an increasingly important role in their work in years to come.
