Activists Turn To Law Over Climate Crisis

In November, the eyes of the world will be on Scotland as Glasgow plays host to the 2020 UN Climate Change Conference (COP 26). Recent events like the Australian bush fires mean that climate change is at the front of public conscience.

Protests by Extinction Rebellion and Greta Thunberg are the traditional way for climate activists to make their voices heard. However, activists and others are also now using the courts too.

Litigants have started to flood the courts in other jurisdictions. According to the Grantham Institute 1,328 cases had been brought across 28 countries as of May 2019. The US has seen by far the most litigation, but other countries including Australia and the UK have encountered a significant number.

Climate change litigation emerging across the world in the last two decades can broadly be categorised into three classes: (1) administrative cases against governments and public bodies; (2) delictual claims against companies perceived as those responsible for climate change; and (3) claims brought by investors against companies for failing to account for possible risks to assets, business models and supply chains.

To date, the most prevalent type of climate litigation has been class 1, with the aim of challenging decisions of governments and public bodies and influencing their conduct. This can provide a powerful alternative to traditional activism.

The high water mark is now the case of Urgenda v Netherlands. There, in December 2019, following on action brought by the Urgenda Foundation (a pro-sustainability organisation) and a group of private citizens, the Dutch Supreme Court ordered the Dutch state to limit greenhouse gas emissions to 25 per cent below 1990 levels by 2020.

The case was based in part upon alleged breaches of articles 2 and 8 of the European Convention of Human rights. Article 2 protects a person's right to life. Article 8 protects their right to private and family life. The convention obliges nations to take immediate, proportionate steps if a real and immediate threat to people's lives and welfare exists. It was found that climate change presented such a threat and that the Dutch government's existing pledge to lower emissions by 17 per cent was insufficient to meet the Netherland's fair contribution towards the UN goal of keeping global temperatures within two degrees of pre-industrial levels. The ruling required the Dutch government to take immediately more effective action on climate change.

The logic...