Are the courts now the arena of last resort for citizens hoping to force governments to take serious steps to slow global warming? Over the past several weeks, as the Intergovernmental Panel on Climate Change (IPCC) issued its most dire warning to date, courts on two continents have weighed in on the issue, with dramatically different results.
In Europe, The Hague Court of Appeal ruled that the preservation of a stable climate system is a fundamental human right and ordered the Dutch government to meet its promises of making sharp cuts in greenhouse gas emissions. In the United States, a landmark climate case filed by 21 young Americans, ages 11 through 22, hit a snag at the U.S. Supreme Court and, especially given the court’s increasingly conservative makeup under President Donald J. Trump, now faces long odds of success.
Climate activists have hailed the October 9 ruling in The Hague appeals court as an important victory in the fight to combat climate change. The court decided that the Dutch government had to up its ambition on cutting greenhouse gas emissions and ordered it to ensure reductions of at least 25 percent from 1990 levels by 2020, rather than the 17 percent planned. The court said anything less was a breach of promises made in the Paris Agreement of 2015, would not be a fair contribution to meeting internationally agreed emissions targets, and violated the human rights of the 886 citizens who brought the case, under the umbrella of an NGO, the Urgenda Foundation. (Urgenda is short for Urgent Agenda.)
The Dutch court insisted “that the state has a duty to protect against this real threat” of climate change.
There was, the Dutch court concluded after hearing scientific evidence from past IPCC reports, “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.” It insisted that “the state has a duty to protect against this real threat” – a “duty of care” enshrined in the European Convention on Human Rights.
For a few days following the Dutch court’s decision, climate activists worldwide looked forward to a new era of fighting climate change in the courts. Then, the U.S. Supreme Court weighed in. Chief Justice John Roberts, in a highly unusual step, intervened on the U.S. government’s behalf and ordered a temporary halt to a federal district court trial in the so-called “climate kids” case, just 10 days before the trial was scheduled to begin on October 29. Roberts ordered a stay in the case while the plaintiffs responded to the government’s request to dismiss the suit. (Update: The Supreme Court issued an order on November 2 saying it would not intercede in the case, allowing the trial to proceed.)
Since it was first filed in 2015 during the Obama administration, the “climate kids” case, backed by some of the country’s top climate scientists, has made unexpected progress, with the U.S. Ninth Circuit Court of Appeals twice ruling that the case should proceed to a trial on its merits. In July, the Supreme Court, while noting that the “breadth of [Plaintiff’s] claims is striking,” nevertheless denied a Trump administration request to halt the suit — an action that made Roberts’ most recent intervention all the more unusual.
Representing the 21 young people is Our Children’s Trust, an NGO based in Eugene, Oregon, and the thrust of the suit is that the plaintiffs have a fundamental right to live in a world with a stable climate system. Their claim rests on a long-established legal principle called the public trust doctrine, which holds that certain common natural resources — including navigable waters and coastal shorelines — should be held in public trust for the benefit of present and future generations. A stable climate system, the young people contend, is one of those essential public trusts.
The suit argues that the federal government has for decades wilfully ignored the growing threat of global warming. Gus Speth — head of the Council on Environmental Quality under President Jimmy Carter, founder of the World Resources Institute, and former dean of the Yale School of Forestry & Environmental Studies — said in a 147-expert report accompanying the suit that, despite knowing the dangers, successive U.S. governments had utterly failed to rein in CO2 emissions.
“Defendants’ actions on the national energy system over the past 40 years are, in my view, the greatest dereliction of civic responsibility in the history of the Republic,” Speth wrote. “And it is worse today than ever. This shocking historical conduct, government malfeasance on a grand scale, has left current and future generations enormously vulnerable to substantial danger.”
The suit asks that the government create “a national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.” The goal, the suit says, is “to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend.”
One 19-year-old plaintiff, Nathan Baring of Fairbanks, Alaska, said in an interview, “Young people are the really big stakeholders in climate change. We will reel from the effects of decisions adults are taking right now. But we don’t have representation in government. I have been active [on climate change] for three years, but I haven’t had a chance to vote yet… The real reason for the lawsuit is to give us a seat at the table.”
“The Oregon lawsuit is an unconstitutional attempt to use a single court to control the nation’s energy policy,” said one U.S. official.
Julia Olson, executive director of Our Children’s Trust and the chief counsel in the suit — known as the Juliana case after the lead plaintiff, Kelsey Juliana — says her clients are hoping to use the foundational principle of the public trust doctrine to force the U.S. government to draft a detailed plan to substantially reduce the nation’s greenhouse gas emissions.
“What we need is a national plan for energy, which we think we can push for through law,” Olson said. “We need a plan that can arbitrate about which [energy] projects go ahead and which don’t. The EPA [Environmental Protection Agency] does not have an overview of the energy system. We need an interdisciplinary approach that goes to the heart of the purpose of government and of our rights as citizens.”
To which the government’s lawyers essentially reply: nonsense. The U.S. Department of Justice insisted in court depositions that the Juliana suit “is an attempt to redirect federal environmental and energy policies through the courts rather than through the political process” by asserting what it called “a new and unsupported fundamental due process right to certain climate conditions.”
Trump’s solicitor general, Noel Francisco, says that the Juliana case flies in the face of the separation of powers, and that the courts have no business making environmental policy — a contention that legal analysts say is likely to be met with sympathy by the conservative majority on the Supreme Court.
The “respondents’ position amounts to the astounding assertion that permitting or encouraging the combustion of fossil fuels violates the Due Process Clause of the Constitution and a single district court in a suit brought by a handful of plaintiffs may decree the end of the carbon-based features of the United States’ energy system,” Francisco wrote in a petition to Roberts.
Last week, Jeffrey Wood, a U.S. Department of Justice lawyer who handles environmental cases, told a conference that “the Oregon lawsuit is an unconstitutional attempt to use a single court to control the entire nation’s energy and climate policy … [T]he plaintiffs are ignoring the fact that clean and responsible production and use of fossil fuels remains vital to the health and well-being of the American people.”
But Ann Aiken, the U.S. District Court judge overseeing the Juliana case in Oregon, has indicated support for some key claims in the case. “Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” she wrote in a 2016 opinion.
She also rejected the contention that the judiciary has no role in setting government policy. Two years ago, responding to the Obama administration’s attempts to shut down the case, she said, “Even when a case implicates hotly contested political issues, the judiciary must not shrink from its role as a co-equal branch of government.” Indeed, Our Children’s Trust has compared the Juliana case to legal actions in the 1950s that eventually resulted in the Supreme Court declaring that state-sanctioned racial segregation in public schools was a violation of the rights of black children.
Legal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court.
The Juliana trial, which was expected to last six weeks or more, is now on hold as Chief Justice Roberts considers whether to accept the government’s case against allowing it to proceed, or to agree with the plaintiff’s 100-plus-page response, submitted on October 22, that it should. Legal analysts say that in all likelihood, the Juliana case will ultimately be rejected by the Supreme Court, which now includes two conservative judges appointed by Trump, Neil Gorsuch and Brett Kavanaugh.
Ann E. Carlson, a professor of environmental law at the University of California, Los Angeles, wrote in the Legal Planet blog that the Supreme Court might well prevent the case from even going to trial by supporting the government’s request for a stay.
“It’s hard to imagine,” Carlson wrote, “the five conservative Justices on the Court deciding that the federal government, under the due process clause of the U.S Constitution, has an obligation under the public trust doctrine to prevent climate change from damaging or destroying the global atmosphere, the oceans, wildlife, and other assets. “
Meanwhile, the young people who filed the case say a ruling against them would be one more step in the silencing of the country’s youth over climate change. Such denial is crazy, the case’s lead plaintiff, 22-year-old Kelsey Juliana of Oregon, said in an interview: “I cannot look at any aspect of society and the ecosystem and not see how climate change impacts and exacerbates problems.”
The Dutch and American cases have strong similarities, each being brought on the basis of both climate science and human rights law. And like the U.S. government, the Dutch government has contended that courts have no role in a political debate such as fixing climate change.
Both the Dutch and U.S governments also have argued that climate change is a global problem that no one country can fix, so national courts should not get involved. But the Dutch appeals court rejected that argument, concluding that the global dimension “does not release the state from its obligation to take measures in its territory, within its capabilities.”
The appeals court in The Hague also rejected the Dutch government’s recent claim that time was now too short to alter its 2020 CO2 emissions target, saying that the government had known for more than a decade that the IPCC believed industrial nations would need to make emissions cuts of 25 to 40 percent by 2020. That was the only way to give the world a better-than-even chance of holding warming to below 2 degrees Celsius — a contention supported by an IPCC report last month saying that the world will face dire consequences from climate change as early as 2040.
“The state should assume its responsibility,” the Dutch appeals court said.
The Dutch and U.S. lawsuits raise wider issues globally about the role and competence of courts to hold governments around the world to account when they fail to act on their pledges to limit greenhouse gas emissions. And evidence is growing that those failures are increasing in number.
Our Children’s Trust and its partners are working on legal climate challenges from Norway, to the Philippines, to Pakistan.
A review last month by the World Resources Institute and others found that only 16 countries, out of 197 parties to the 2015 Paris Agreement, have so far set legal domestic emissions targets that match their Paris pledges. Among major industrialized nations, only Japan and Canada have done so.
The ruling by the Dutch appeals court should make the Netherlands the 17th country to match national law and international promises. But it is far from clear which country will be next.
In London, a legal charity called Plan B went to a high court in July to argue that the British Climate Change Act, which requires a cut in emissions of 80 percent by 2050, is inconsistent with the Paris Agreement, which requires zero net emissions by then. Plan B, backed by a former government chief scientist, David King, argued that the court should force the government to redo its math. But the court threw out the case without a full hearing.
As climate change moves from theoretical risk to brutal reality, the courts may be our last chance of salvation. Even if the Juliana case fails, activists say that legal action to battle global warming will continue in courts in the U.S. and across the globe. Our Children’s Trust and its partners are working on legal climate challenges from Norway, to the Philippines, to Pakistan.
“We see the Juliana case as a model for action in other countries, and we are working with attorneys in other countries [to challenge] government support for fossil fuels,” said Elizabeth Brown, global program manager for Our Children’s Trust.
Correction, November 1,2018: Earlier versions of this article incorrectly stated that Our Children’s Trust is based in San Francisco. It is based in Eugene, Oregon.