Climate Change in the Courts

A few weeks ago, representatives of 196 parties around the world signed an agreement in Paris (COP21) that requires countries to update and enhance their targets to cut greenhouse gases every five years. The targets themselves are not legally-binding but the majority of political leaders said they support working with other countries to curb global warming and were willing to take steps to do so. Still, there are politicians that there are still skeptical, the Texas Republican Sen. Ted Cruz for example, said last week that if he was elected president he would withdraw the U.S. from the climate agreement.

In the absence of enforceable commitments to reduce emissions, concerned citizens and organisations look to the courts for an alternative way of driving emissions cuts by countries or companies.

Urgenda vs. Dutch government

Together with 900 citizens the Urgenda Foundation filed the Climate Case against the Dutch Government. This lawsuit got little coverage outside the Netherlands but on 24 June 2015, Urgenda won the case forcing the Dutch government to take more measures to cut greenhouse emissions. In a landmark legal decision, the judges ruled that the low-lying country, which is particularly vulnerable to sea level rise, should slash emissions 25% from 1990 levels by 2020. The state was aiming for 17% while Europe-wide, the target is a 20% reduction.

The verdict read: “The State must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment. The State is responsible for effectively controlling the Dutch emission levels.

“Moreover, the costs of the measures ordered by the court are not unacceptably high. Therefore, the State should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.”

The government is appealing the decision, with a letter send to the chairman of the House of Representatives, by the infrastructure and environment minister Wilma Mansveld which says said it is “desirable” to test the landmark judgment in a higher court. Meanwhile must start acting on the order to cut emissions by 25% by 2020.

Leghari Case

Asghar Leghari, is a Pakistani farmer. Using public interest litigation (PIL), he accused the Pakistani government and relevant authorities of failing to develop the required resilience to climate change as required under the government’s own framework for implementation of National Climate Change Policy 2013.

Leghari highlighted the many serious threats to Pakistan as a consequence of climate change “– in particular water security and food security as being the most immediate and faulted the government for ignoring its own timetable for implementing priority actions, and making no effort to develop adaptive capacity and resilience to climate change.” They failed him as a citizen.

The case had been brought to Lahore High Court’s Green Bench and on September 2015, Justice Shah, concluded “the most serious threat faced by Pakistan is that of climate change”.

His court order stated, “For Pakistan, climate change is no longer a distant threat – we are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs.”

The judge ordered all of the federal government’s main ministries – from the Cabinet to the ministries for climate change, food security, water, power and disaster management – to appear before him and explain themselves. He ordered the establishment of a national Climate Change Commission with a clear remit to ensure effective implementation.

Both the Urgenda and the Leghari cases were at the centre of discussions in a symposium hosted by the Dickson Poon School of Law, King’s College London, in collaboration with the Journal of Environmental Law, on ‘Adjudicating the Future’ on September 2015, in London. The symposium brought together judges, academics, and practitioners from around the world to consider the challenges and tasks for courts and tribunals in dealing with climate change issues.

Exxon Mobil

In the US, oil giant Exxon Mobil is under investigation by the attorneys general of New York, California, and Massachusetts to determine whether the company lied to the public, or to investors about the risks of climate change.

According to a groundbreaking investigation by InsideClimate News, Exxon did its own cutting-edge empirical research, taking CO2 samples off its oil tankers and building state of the art climate models that predicted the coming changes such as sea-level rise. It also received warnings from its own senior scientists, including James Black who in 1978, in his report to his employer mentioned the “general scientific agreement that the most likely manner in which mankind is influencing the globally climate is through carbon dioxide release from the burning of fossil fuels.” He also wrote that “man has a time window of five to 10 years before the need of hard decisions regarding changes in energy strategies might become critical.”

Last November, the Attorney General Eric T. Schneiderman issued a subpoena to Exxon Mobil, demanding extensive financial records, emails and other documents while Kenneth P. Cohen, vice president for public affairs at Exxon Mobil said that the company had received the subpoena and was still deciding how to respond.

In a letter to Attorney General Loretta Lynch on Tuesday, Bernie Sanders charged the oil giant of engaging in a cover-up to intentionally mislead the public about the reality of human-caused climate change, and by extension the risks of its carbon-intensive product.

“Based on available public information, it appears that Exxon knew its product was causing harm to the public, and spent millions of dollars to obfuscate the facts in the public discourse. The information that has come to light about Exxon’s past activities raises potentially serious concerns that should be investigated.”

Because of this campaign of misinformatio, promoted by the entire fossil fuel sector, humanity lost key decades when we could have been taking actions necessary to move to a clean economy.

In the meantime, at the other side of the Atlantic, the Governor of the Bank of England, Mark Carney warned investors that litigation is one of the top three risks to financial stability associated with climate change.