European Court of Human Rights, courtroom, 2014 by Adrian Grycuk. Used under CC BY-SA 3.0 PL
In recent years, thousands of lawsuits have been filed around the world by private individuals to NGOs and state governments in an attempt to force greater action on climate change through the legal system. They have taken their cases to both national and international courts with claims ranging from human rights to consumer protection. To find out more, Dr Maria Armoudian speaks to experts Dr Corina Heri from the University of Zurich and Sabrina Ashjian from UCLA, as well as Dr James Every-Palmer KC and Jenny Cooper KC, who are the co-founders of Lawyers for Climate Action New Zealand.
Transcript
Maria Armoudian: Hello and welcome to Sustain, a production of Ngā Ara Whetū: Centre for Climate, Biodiversity and Society, I’m Maria Armoudian. In this hour, can climate litigation force countries and corporations to take action to mitigate the looming climate crisis? How are human rights factored into these cases? We explore some of the lawsuits brought in Europe, the US and New Zealand. In the face of insufficient action by many national governments to mitigate the climate crisis, regular people, NGOs and states are filing lawsuits against those seen as responsible for the problem, or for not doing enough to solve the looming disaster.
MA: To date, more than 2500 lawsuits have been filed in over 50 countries. Additional actions have been brought in regional and international judicial bodies. What is happening in climate litigation and how might it make a difference in solving this looming mega crisis? We have four experts from Europe, the US and New Zealand who are following the cases in their regions. Doctor Corina Heri is a human rights law researcher from the University of Zurich. Sabrina Ashjian is clinical supervising attorney and project director for the UCLA School of Law’s Emmett Institute on Climate Change and the Environment, and the California Environmental Legislation and Policy Clinic.
MA: Doctor James Every-Palmer and Jenny Cooper, both Kings Counsel and co-founders of Lawyers for Climate Action New Zealand, also join us. We wanted to bring you here for a couple of reasons. One is that there are now 2000 or so climate change cases around the world, spanning 55 countries, and a big chunk of them, about 1500, are in the United States. So we wanted to get a sense of what’s happening where, that’s why we wanted the three different regions, and see what’s novel, what’s new, what’s effective, and essentially what we’re seeing arising from these lawsuits.
MA: Corina, why don’t we start with you? You’re an expert in human rights law, and looking at the environment as well, there was a landmark human rights lawsuit decided in April 2024. Tell us what happened with this. What were the contours of this case? How was human rights factored into it?
Corina Heri: In April of this year, we got a really groundbreaking judgement from the European Court of Human Rights, it was the first time that this court or any other human rights court had found that a state’s mitigation policy violated human rights law. This judgement received a tremendous amount of attention. It’s already being discussed in courts within Europe, but also outside of Europe. It has received a lot of academic attention and media attention. The reason it was so exciting is because the court in Strasbourg, in France, looked at the emissions policy of the state concerned, which here was Switzerland, and said that because climate change is such a risk to human rights, states have an obligation to adopt adequate regulatory responses.
CH: They have to regulate their emissions. It looked at Swiss emissions policy and said there’s too many gaps in this policy. You don’t set interim targets. You don’t quantify your remaining emissions. This is not an adequate response, and so this violates human rights law. We’ve never seen anything quite like that from a human rights court before. Obviously, there had been earlier cases that looked at certain rights, especially with regard to adaptation measures, cases that had made some initial findings about things like jurisdiction. But we’d never had a violation finding like this one from a regional or international human rights body. So this was quite thrilling for us who work on the ECHR, but also, around the world, this is going to be a model for litigation that’s going to also inspire a lot of litigants.
MA: So what ultimately do you expect to come out of this? The courts don’t have enforcement power per se, what will be the impact of this?
CH: I always like to talk about how difficult it is to define success in a climate case, especially in an international case, because there’s so many different aspects of success that we could talk about. If success here was drawing attention to the human rights impacts of climate change, then I think this case definitely succeeded. If success was getting this very important human rights court, which is very important for Europe, but it’s also influential in a comparative way in other places.
CH: So for example, New Zealand courts have looked at cases that have dealt with elements of the ECHR as well. There’s a lot of comparative arguments that draw on this. In that sense, this very influential court has now looked at climate change, has now said, climate change is a human rights issue. Climate change is very much happening, it’s very much a risk to rights, and that it’s willing to look at climate cases under certain circumstances. So that too is really exciting. Now, that doesn’t mean that Switzerland immediately threw out its climate policy and implemented an entirely new one. This is going to be a gradual process, and initially there was a little bit of backlash from within Switzerland.
CH: Some arguments that it wasn’t the role of the court to tell Switzerland what its climate policy should look like. But I think those arguments in the long run won’t stand, because the court in this case didn’t really tell Switzerland what its climate policy should look like. The court walked a very fine road between doing too much and too little. And the response that it ultimately gave was to say, we’re not going to dictate what a state’s climate policy should contain, what reductions pathways it should choose, and so on. But we are going to hold you to a certain standard. You need to regulate this clearly. You need to do this in line with international law, with the Paris Agreement, and so on. So that too, in the long run, will have an impact on how climate policy looks in Switzerland, in other European states, and maybe beyond that as well.
MA: Yeah, there was another case that was even broader. I don’t know if this was also human rights related or if it’s in your area of study, but this dealt with six young Portuguese applicants. This one actually was broader, where it wasn’t just naming one country. Is this kind of this similar argument or is it something else?
CH: So we had this very successful Swiss case from the European Court of Human Rights, but we’ve also actually had five inadmissibility decisions in climate cases. So the court picked the Swiss case to be kind of its model case to set out the standards that it’s going to apply in other climate cases, and also to tell domestic courts what its response will look like. But at the same time, there were those five inadmissibility decisions. The one that you mentioned is the most well-known, and also probably the most interesting one. Like you said, it was brought by six Portuguese children and young people against a majority of the Council of Europe member states.
CH: The Council of Europe, which is separate from the European Union, is a European international, or regional, organisation, and it covers 46 states. These children and young people brought their case against 33 of these 46 states, and they made similar arguments to the Swiss case. They also went further. They made additional arguments, that not only said that they were being impacted in their health and their life, but also that they were being impacted in their mental well-being through eco-anxiety. And they made a number of other arguments.
CH: Now, that case failed for two reasons. Both admissibility reasons. Well, admissibility and jurisdiction. One reason was that the applicants didn’t actually exhaust any of the domestic measures in any of these states. They went straight to the European Court of Human Rights in Strasbourg, and that violates the rules on the exhaustion of domestic remedies, and the court said, we can’t change those rules for climate cases. You still need to exhaust these domestic remedies. It’s interesting to think about what that would have looked like, whether these children and young people would have been required to pursue proceedings in all these different states, and whether that would have been feasible.
CH: But there was also a second hurdle here, and that was jurisdiction. So the European Court of Human Rights has a very restrictive understanding of jurisdiction. It doesn’t allow extraterritorial cases except under very narrow circumstances. And there too, it said, we’re not going to change the rules for climate cases. These cases should come from within a state against that state. And we’re not going to allow cross-border climate cases, just continuing earlier lines of case law that already existed. Now, again, we can talk about whether that’s suitable to climate change.
MA: Given that it’s extraterritorial?
CH: Exactly. Because emissions don’t just have impacts in a certain state. They obviously have impacts globally, and there are other human rights bodies that have said that this approach doesn’t fit climate cases. We need to do this differently. So the Inter-American court.
MA: What are those? I was just going to ask you, there are some inter American court cases. I think I saw one from Colombia and Chile.
CH: Exactly. So there’s an advisory opinion pending at the Inter-American Court of Human Rights. That’s ongoing right now, and we’re expecting that to actually go a lot further than what the European Court of Human Rights did. Because the Inter-American court is known for being more progressive than the European Court, and we’re expecting it to do a lot more in that system. You also have additional rights that are relevant here. So you have a lot more case law and a lot more expertise on indigenous people’s rights. But you also have a separate right to a healthy environment that we don’t have in Europe.
CH: But in past cases already, that court said that this very much territory-based understanding of jurisdiction doesn’t fit climate cases, we need to adopt an impact-based understanding. Other human rights bodies have followed that approach, the UN Committee on the Rights of the Child, for example, said, yes, the Inter-American Court is right. We need to change the standards here. The European Court said no, we will not do that. We will stick to our existing case law. Whether that’s right or wrong, we can discuss that. I think that it actually doesn’t really fit into these cases, and it excludes a lot of impacts from particularly climate vulnerable regions of the world. But yeah, that’s currently what we’re looking at.
MA: Sabrina, I think that’s a perfect way to bring you in, because there have been similar cases in the United States. I think of the one about the young people in Montana, maybe that’s one to start with, but that’s the only one I follow that deals with the idea that we have a right to this clean environment. So tell us what’s going on in the US.
Sabrina Ashjian: Yes that is happening, as well as a lot of legislation that’s pending throughout the country on this human right to the environment. Very similar to what Corina was talking about, looking at this as a right of individuals. Specifically, a couple of cases that I want to discuss have to do with Attorney General cases out of California. Prior to teaching, I was a consumer fraud and environmental prosecutor, and in that role brought cases against companies for environmental and consumer fraud harms. There have been two innovative cases that have happened recently, which have been brought recently by our California Attorney General in that similar vein.
SA: The first is a climate change lawsuit, and in that lawsuit, it was filed against the world’s biggest oil companies, as well as a national oil and gas industry trade association. The case was originally originally filed last fall, but a new charge was added of disgorgement after new legislation was enacted that says that companies can actually be disgorged of profits that they earned if they were engaged in deceit. That’s an angle that they’re pursuing, which has never been done before. In the complaint, they have basically alleged that the companies have known since before the 1960s that fossil fuels have been causing climate impacts and effects, and rather than moving away from that and moving to more sustainable technology that would be safer for the public and for our environment, they continue to pursue these technologies and chose corporate profits and deception instead.
SA: One of the key talking points by our governor has been that taxpayers should not be having to pay for the extreme weather events that we’re seeing. The wildfires, the devastating impacts that have been brought upon society. It should be borne by these fossil fuel companies who have known about this, and instead of making any changes, have been promoting themselves, greenwashing in effect, as clean and green and developing renewable technology and all of that. The second case which has similar charges, but is also the first of its kind in the nation, is a case filed by the Attorney General against Exxon Mobil for the plastic pollution crisis and their role in it.
SA: We’ve never seen that before, and it’s very innovative to utilise the environmental laws that we already have in place and say that ExxonMobil was deceiving the public by saying that we could just recycle and get rid of all of this plastic waste. It’s utilising statutes of consumer fraud, of false advertising and deception, because they knew that this was not sustainable and they knew that we could not be recycling plastic at a rate that would allow for this single-use lifestyle that they’ve advertised and promoted through their products. It’s going to be interesting to see what happens with these cases if other similar cases are filed by other Attorney Generals throughout the country, as well as globally. How others are handling this. So this is very interesting to participate in.
MA: So these are two that are pending right now, are there some that have already been resolved?
SA: There are none that are along these lines specifically, but there have been other similar cases that have been filed by Attorney Generals throughout the country for similar actions. What’s happened with a lot of them is they’ve stalled the oil companies have gone to the US Supreme Court asking that these cases be moved to federal court or to be consolidated in some fashion. The reason for this is that state courts are often seen as more plaintiff-friendly than the federal courts. So they’ve been trying to do that, and over the course of the past few years, those cases have stalled. But the US Supreme Court in April 2023 declined to do that, to move those cases. So that is some promising news.
MA: So they’re still in state court, very cool. Let’s go now to Aotearoa New Zealand. Jenny and James, let’s take a look at what’s happening down here, I found 31 climate related cases filed in New Zealand. What do you think are the most significant ones?
James Every-Palmer: Well firstly, we’re not responsible for all of them, and I think you have to be a little bit sceptical of some of that counting. When I’ve looked at those kind of lists, it includes a number of things that we probably wouldn’t count as climate litigation. I think our complaint to the Advertising Standards Authority over, First Gas’s, “we’re changing so you don’t need to” campaign was listed, various Resource Management Act cases that might mention climate are listed. I would say that, in terms of existing current cases, there are more like half a dozen or so that are going through the courts at the moment. Some of them we’re involved in, which I can talk about a little bit more. Probably the most high profile one is Smith and Fonterra,
JEP: There’s also an action by Students for Climate Solutions against the Minister of Energy for granting petroleum exploration permits without properly considering climate change as a relevant consideration. There are three that Lawyers for Climate Action have brought. One of our goals is to bring strategic litigation where we think it can move the dial towards action consistent with limiting global warming to 1.5 degrees, which is a massive change, requiring rapid decarbonization. As a rule of thumb, halving emissions by 2030, relative to 2010 levels. Nothing like the kind of slow change that we’re seeing, or in New Zealand’s case, the continuing increase in emissions between 1990 and very recently.
JEP: The first one we brought was against the Climate Change Commission and the minister of Climate Change. We didn’t expect that the Climate Change Commission would be our first defendant because we’re very supportive of their mahi and their kaupapa. But what we were disappointed in was their first substantive advice on the emissions budget, the total greenhouse gases that can be emitted in five year chunks. They gave advice to the minister of the first three of those, and at the same time gave advice as to what the NDC, our Nationally Determined Contribution under the Paris Agreement should be, to be consistent with limiting warming to 1.5 degrees.
JEP: Now, the budgets are required by the statute to contribute to the global effort to limit global average temperature increases to 1.5 degrees. The problem is that the budgets aren’t consistent with the global averages that are required, let alone consistent with what developed countries need to do, which is more than average, because obviously developing countries need to be given room to increase their emissions while we are reducing. The High Court agreed with us that the budgets were not consistent with global average reductions required, but said that that statutory language I talked about was aspirational, rather than a bottom line in relation to the NDC, which is our international contribution, what we do domestically, plus offshore mitigation. The advice the Commission gave contained this really odd analysis which said the net CO2 could increase between 2010 and 2030 and still be consistent with global average reductions of 50%.
JEP: That conclusion was arrived at by applying those reductions to our 2010 gross CO2, which of course was much higher than our net CO2 in 2010, in order to create a target for 2030 net CO2. So it allowed net CO2 to almost double.
MA: So it was a little bit, almost. I mean, I don’t want to call it fraudulent, but a sense of like masking something.
JEP: The judge agreed with us that the advice was potentially misleading, to use a more neutral term, but found that it wasn’t an error of law because it was addressed to the minister, and the minister was not, in fact, misled. But the judge did pointedly remark that anyone who failed to read the full 800 pages of the report carefully could well be misled into thinking that what they were doing was consistent with the global averages, when it wasn’t. That case is about New Zealand’s overall level of domestic and international ambition, and the appeal was heard in November last year. Court of appeal judgments usually come out within 3 to 6 months, so this one’s on the outstanding list.
JEP: We’d expect a decision shortly, which in the best case would result in their level of ambition being reconsidered and ramped up. It’s very difficult in these kind of cases because there can be unintended side effects. It may trigger a legislative process which could weaken the statutory framework. That’s a risk. But I guess we we feel that the status quo hasn’t been working, so the bigger risk is doing nothing, rather than calling out these low ambition targets. So the second one was about the Emissions Trading Scheme, this is a primary policy instrument to meet our budgets. What the emissions trading scheme does is put a price on emissions in covered sectors, and each year, the government decides how many additional units to release for auction.
JEP: In December 2022, cabinet departed from the commission’s advice, which was to tighten the supply of units, because the commission was worried that we have a massive stockpile of existing units. So the Emissions Trading Scheme can’t act as any sort of capping mechanism when you have 100 million units sitting there outstanding. Cabinet kind of took that on board, but then departed from that advice because it was worried that doing so would increase the NZU price, increase the cost of petrol at the pump, increase wholesale electricity prices, and so would have a cost of living impact. So they departed, crucially, from the Commission’s advice.
JEP: We took a judicial review action on the basis that what they’d done was inconsistent with the statute. The Crown quite quickly conceded that they had erred in law. So, quite unusually for a judicial review, we had a judgement by consent in our favour, that resulted in cabinet relooking at the settings and this time adopting the commission’s recommendations and that helped restore the New Zealand Unit price to $60 from the low of $35 that it had fallen to. So, a much better price, although far short of the kind of price that would incentivize substantial changes in carbon emissions. So those are the two framework policy cases.
JEP: Our third one is a little bit different. It’s a Fair Trading Act claim against the largest petrol retailer in New Zealand, Z Energy. It’s brought in conjunction with Consumer New Zealand and the Environmental Law Initiative, as well as Lawyers for Climate Action, and the claim is that Z Energy embarked on an advertising campaign in 2022 that was misleading and deceptive. The headline of the campaign was “we’re in the business of getting out of the petrol business”, and the plaintiffs were concerned that that created an unwarranted green halo, and could lull consumers into not moving away from fossil fuels because Z Energy had it in hand.
JEP: So, a bit similar to First Gas with “we’re changing so you don’t need to”. In the detail of that, Z referred to an investment in a biofuel plant. It was true that they’d made that investment. What they didn’t say was that the plant had already been mothballed and then several months later was closed. They said they’d invested in an electricity retailer. That was true, but investing in an electricity retailer doesn’t reduce the emissions from the petrol that they’re selling. What’s more, they were giving away petrol to people who signed up for the electricity, and in fact, it was the most carbon-intensive electricity that you could purchase in New Zealand. They also headlined that they had ambitious plans to reduce their emissions, and that they were on track to achieve those plans.
JEP: But what they were referring to was only their operational emissions, not the emissions from the product that they were selling. So, only a tiny fraction of the emissions associated with refining and moving around the petrol was being reduced, but not the emissions from the product that it was selling. What’s more, for that one, the reduction we allege was due to the closing of the New Zealand refinery, which didn’t reduce emissions because the petrol was refined elsewhere. It just took them outside their accounting definition of operational emissions. That claim was started about a year ago, it’s going through the preliminary phases now. Discovery, the exchange of documents, is next and will likely be heard sometime in late 2025 or 2026.
MA: Maybe we should talk about Smith and Fonterra. Jenny, what can you tell us about this case?
Jenny Cooper: Smith and Fonterra is a really important case because it’s one of the first, certainly the first in New Zealand, private cases by an individual against large emitters trying to hold them to account and to seek orders requiring them to reduce their emissions. As James said, Lawyers for Climate Action didn’t bring that case. We’re not directly involved. It was brought by Mr. Smith and his lawyers. But we’re obviously very interested in it. We’ve been following it closely, and we got leave to make submissions as an interested party in the Supreme Court. So we played a little role there.
JC: This case started a few years ago. As I said, it’s trying to get orders by the court requiring seven of New Zealand’s, it might be six now, of New Zealand’s largest emitters to reduce their emissions, and they don’t have any statutory obligation to do that. Instead, what Mr. Smith is saying is that they owe him a legal duty to stop or reduce their emissions because their emissions are contributing to climate change, climate change is causing him harm, specifically because it’s causing harm to property that he holds customary rights in. So, it’s really trying to link the kind of individual rights to those emissions in a fairly novel way. There have been similar cases in other jurisdictions. I’m not aware of any that have yet succeeded.
JC: So this is definitely quite novel and exciting. What’s happened so far is in the first round, the first thing the defendants did was they said, well, thanks very much for your claim, but we don’t think it can succeed, so we’re going to get you struck out. In the High Court, they were successful in striking out two of the three causes of action. All causes of action rely on different forms of tort. The High Court struck out both the negligence and the nuisance claims, but allowed the case to proceed on the basis that there might be some way the law could develop a new form of environmental tort that could provide a remedy, so that was allowed to continue.
JC: The defendants then appealed to the Court of Appeal, and the Court of Appeal struck out all of the claims, all three courses of action, and said the claims shouldn’t go ahead. The reason behind the Court of Appeal’s decision was they said, look, climate change is just such a complex issue. It’s got international aspects. It affects all aspects of society. It requires a comprehensive global solution, supported by, sort of, a well-developed domestic regulatory framework. We can’t deal with it piecemeal in cases before the court like this, it’s just not the way to do it. Mr. Smith then appealed from the Court of Appeal to the Supreme Court, which is our highest court, and in the Supreme Court, they took a different view to the Court of Appeal.
JC: They said, well, actually, maybe tort law can’t solve climate change, but that doesn’t mean that there’s no role for tort claims or for private law actions, and they looked at the tort of Public Nuisance, which developed really during the Industrial Revolution to deal with problems of pollution from factories and mines and so on, in the days when there wasn’t a lot of environment regulation, probably no environmental regulation, and people needed to find legal solutions to deal with pollution. That’s really where the tort of public nuisance was developed. They said, look, there are aspects of that which would seem to apply here potentially. So we think the claim might succeed, or has a prospect of success. We’re going to allow it to go to trial and see what happens.
JC: Now, it’s important to note this doesn’t mean it necessarily will succeed, and the Supreme Court was very careful to say, we’re not saying this case will necessarily succeed, it’s just we think it should have a chance to go to trial, and for Mr. Smith to have a go at proving his case. It’s a super important decision, certainly in New Zealand and I think internationally as well, in the sense that it does demonstrate that there are existing legal remedies that potentially can, with a little bit of adaption, provide remedies for private individuals in this type of situation and obviously quite different to the other types of litigation that James was talking about.
JC: A lot of the types of action we have been involved in so far has been judicial review, where we’ve essentially said that a decision-maker has not complied with their legal obligations under a particular statute, so the court has jurisdiction then to enforce the statute, basically against the decision-maker. That’s a very different type of claim to an individual claim saying, you’ve infringed my rights and I need a remedy. So, we’ll see where it goes. It does have a trial date, so, as matters stand, it will be going to trial. I think it’s a couple of years away still, but it’d be really interesting to see how it proceeds.
MA: Do you expect it to be a jury trial or judge trial?
JC: Civil trials in New Zealand are almost invariably judge-alone. There’s only defamation where occasionally you have jury trials, but no, it’ll be judge alone.
MA: Okay, so I guess a few things arise from this array of types of litigation that are being taken globally in all these different jurisdictions, to try to resolve the problem of climate change, because obviously our governments aren’t doing enough, our national governments and the companies are certainly not inspired to reduce their emissions. So first of all, I was wondering about these novel ways that are going before the human rights courts that we were talking about at the very beginning. And whether or not that is something that could apply, for example, in Aotearoa New Zealand, could there be a human rights case in any of these? James or Jenny, do either of you think there could be?
JC: I’ll have a go and then I’ll hand it over to James. I mean, there have been some cases already where there’s certainly been a reference to human rights. The courts have tended to stay away from the issue in their judgments so far. The big difference here is that we don’t have a superior law status for our Bill of Rights Act. We have a Bill of Rights Act that includes the right to life. But it just has the status of an ordinary statute. So, the courts can’t use it to override legislation. So that somewhat changes the dynamic here, to certainly the situation in Europe and European Convention on Human Rights jurisdictions, but James, what are your thoughts?
JEP: I agree with that Jenny. I think the other dimension in New Zealand is that there hasn’t been the same greening of the Constitution as we’ve seen in other countries where courts have been more willing to read a right to a sustainable environment into other rights, such as a right to life. With the wording of the New Zealand Bill of Rights Act, it’s perhaps harder than in other countries. But we would say it’s a pretty strong argument that can be made that, all of the conventional rights to free speech, freedom of association, to vote, are based on having an environment that is supportive of human life and so you can read into that a right to a sustainable environment.
JEP: It’s one of the initiatives that we’ve worked on that, in the policy space, has been to advocate for an amendment to our Bill of Rights Act, to make that right explicit so that there can be no doubt, and that actually became part of a bill which was pulled out of the ballot, and so became a member’s bill. But unfortunately, it wasn’t supported by the government to get past its first reading. So it didn’t get any further than that. Human rights are, of course, very important in terms of how we interpret statutes, and courts are generally cognizant of our international obligations. They can have a role in interpreting statutes. So we do see those arguments coming out, and I think we’ll increasingly see them coming out as the consequences of climate change become more apparent with flooding in New Zealand, as we speak, and in the United States over the last week.
MA: Sabrina, how about we come back to you? What have been the impacts of the previous lawsuits that you talked about? I know the two that you said are pending. We don’t know yet, but have we seen any result that gives hope that we can turn this around, at least partly through the courts?
SA: Yeah, I think we have. But I also wanted to to mention, Jenny had made a comment about, with the litigation that she was referring to, that the court was hesitant about this piecemeal or patchwork solution, and that has been a big argument here in the United States by the oil companies and fossil fuel producers about why there shouldn’t be state litigation or municipality litigation or individual litigation, because this should be done on a more global basis. Or by the government and not by the courts and not individual court action. That has not been a successful argument, which does give me hope in terms of some of these cases moving forward.
SA: With regard to the case that you had mentioned earlier that I don’t think I addressed, the Montana court, that did move forward saying that regulators must consider the effects of greenhouse gas emissions when they’re issuing permits for fossil fuel development. And that was brought by a number of young plaintiffs. So even after that, when the governor, who was conservative, tried to block that landmark ruling and that was overturned by the Montana Supreme Court. So there have been positive developments in this space, and it seems as though things are moving forward in a way that does show the need for these climate litigations, especially given the climate disasters that we’re seeing.
SA: So it’s becoming more of a bipartisan understanding in the United States at least, given the sense that so many of the governments are now having to cover all of the impacts, in terms of infrastructure and development. So you’re starting to see, I think, a tide changing to how we’ve historically looked at these, I think that these have been seen previously as more frivolous lawsuits, but I think that they’re gaining a lot more traction now because of the fact that we’re just seeing so many more climate disasters and impacts. So, that does give me hope. The human right to the environment legislation that I was talking about at the beginning did not move forward this year though in California. So that was disheartening, but I do think that that’s going to be brought up again next year and potentially could move forward and be used across our country.
MA: I think the Montana one succeeded because it’s in the Montana Constitution that people have a right to a clean, healthy environment. I don’t remember the exact language, but that made it a constitutional issue. I don’t know how many states actually have that, but that would be kind of an interesting thing to look at as well, whether you have that right to a clean environment. I would have thought also, either James or Jenny, if there might be anything treaty-based that would serve as the basis, like the Treaty of Waitangi for example, and rights that some of the rivers and forests have been given of personhood, if any of that can come into play.
JEP: Absolutely, in a number of different ways. Firstly, there is a live claim before the Waitangi Tribunal in relation to climate change and the inadequacy of the government’s response. Secondly, it’s well-established that tikanga is part of the law of New Zealand, our first law, and can have various roles, including informing how the law evolves and develops over time. One of the arguments in Smith and Fonterra that got traction in the Supreme Court was that, when you’re talking about the evolution of tort law and the common law always evolves, so there’s nothing radical about it evolving, that we need to properly have tikanga evidence as to how te ao Māori, the Māori worldview, would see appropriate responses to climate change through the courts, and in strike out, you can’t really deal with that because you don’t have live expert witnesses having a wānanga about tikanga aspects. But you can if it goes to trial in the High Court.
JEP: So that was, I think, part of the reason why it was allowed to go through to trial and then there are potentially more fundamental claims that could be brought against the government. We have a principle of parliamentary sovereignty, which is well understood, but it’s a common law principle and some people suggest that it’s subject to limits. Lord Cooke, the most famous New Zealand jurist, has written that some rights must be so fundamental that even Parliament couldnt override them. The classic examples are obviously far-fetched from reality, but a law saying that certain babies should be killed. A court might say, well, no, that goes outside your powers.
JEP: If there was such a challenge in relation to climate change, then I’d imagine there would be a treaty aspect to that as well, that the Crown has responsibilities of active protection of the environment, for the benefit of Māori under the treaty. That could limit what Parliament can do, that’s well beyond where our law is at the moment. But, you can imagine, if and when the West Antarctic Ice Shelf collapses and we see five metres of sea level rise locked in, and if we still have the kind of slow action that we see today, that the judges who have expert evidence, who are not subject to electoral cycles may be looking for tools which can increase their role in moving things forward.
MA: So let’s just think now about how litigation fits into the grander means for change. Jenny, let’s start with you on this. Does litigation need to be part of a movement?
JC: Yeah, that’s a great question. I do think that litigation and indeed the law generally is a really important part of how we tackle climate change, because it is a problem that raises really profound legal issues and challenges. It really raises a lot of very difficult questions about how we balance one individual’s right against another individual’s, how we balance individuals against collectives, how we balance property rights versus human rights, how we balance the rights of current generations against future generations. Those are all difficult questions which we need to have legal answers to if we’re going to maintain the rule of law, which ultimately is the foundation of a functioning democracy. So, the law needs to be part of the solution.
JC: And litigation, I think, is a really important part of that. There’s lots of great things that litigation provides that are often in short supply in other forums. In court, you have evidence, it’s generally fact-based, if it’s not, that’s very easily called out, and we’re very lucky to have judges who are objective, everybody has a little bit of human bias, but they’re largely very objective, unbiased and reasonable. They will apply legal principles to the decision-making rather than political preferences. So it is really, really essential to have those sorts of fora where you can actually air evidence, free of the kind of misconceptions and misinformation that unfortunately takes up so much airtime in so much of the world now.
JC: Having said that, though, there are constraints to what litigation can achieve. Ultimately, we live in a democracy. As James mentioned, we have parliamentary sovereignty. The courts can’t override parliament. It’s also very important in a democracy that really difficult, sensitive political issues and decisions are made by people who have been elected and not by unelected judges. Courts are very mindful of that and very mindful of not overstepping their constitutional limits. Also, litigation can only respond to specific cases in front of it. It can’t come up with some sort of designed, comprehensive global solution. So coming back to your original question. Yes, legal action needs to be part of a broader movement, absolutely. I think it’s an important part, but it can only be part. I think it really relies on the rest of the climate movement to be informing people, making people express what they want to decision-makers and most importantly, vote for decision-makers who will take the steps that are required.
MA: So let’s take a round on this and see how that fits in other jurisdictions. Corina, what do you think?
CH: I think one thing that has run through what everyone said today is that there are different aspects of this that probably all are going to play together, and the solution isn’t going to be either domestic litigation or international. It’s not going to be cases just against governments or just against corporations and so on, and there’s different areas of law that are all relevant and affected by climate change. So it’s going to be a bit of a puzzle. I think there’s not one place where we can look for the solution, if only it were that easy. But the role of litigation, as I see it, is that it allows for an authoritative examination of certain issues that otherwise remain largely in the political sphere, even though they’re also very much legal questions.
CH: Litigation is a place where applicants turn as a last resort in many cases, especially in the human rights cases. We’re seeing applicants turning to rights because nothing else seems to work and they can’t get justice anywhere else. It’s maybe not the first place they would go, but it is often the only avenue available to them. On the international level, what we are seeing is more and more advisory opinion requests, and those are a little bit different from contentious litigation, because then you have courts answering more general questions about, what do the obligations of states look like in relation to climate change?
CH: Those are also an opportunity to set out more generally how a given court sees its obligations. They’re not so focused on the facts of a specific case. We actually have opinion advisory opinion requests pending right now at the ICJ, the International Court of Justice in The Hague. So the UN World Court, but also at the Inter-American court of Human Rights. I think those will also give a bit more clarity and more of a bird’s eye view of all the obligations that are relevant and how they look in the face of climate change. I think that’s also a place to look for something a little bit in between these very specific individual case-focused approaches and more general ones.
SA: I completely agree with the points that Corina and Jenny just made about the important questions that need to be looked at, as well as the idea that we need to have a multi-pronged approach. So courts are not going to be the only answer, though I do think they will be one of them, along with looking at legislation, looking at changing consumer motivation and behaviours, which then will influence purchasing decisions and how companies operate, as well as just technology innovations and product technology scalability and affordability, so that we can move away from some of the more polluting industries and towards more environmentally sustainable ones. I think it’s going to be all of those together in some holistic way, and really a global way.
JEP: Some people are sceptical that climate litigation has a role here or that it does any good. That’s usually based on the idea that this is a policy issue. This is something that elected people should be dealing with, not unelected judges. So I just wanted to address that a little bit. I think the best way to do that is to step back and ask why responding to climate change seems to be so difficult. I think any rational person looking at what we know about climate change would say that we should be making a far greater response, that it will be far cheaper to take meaningful action now than just to kick the can down the road for another generation. The physics of climate change have not been understood for the last 40 years, they’ve been understood for the last 140 years. It goes back to the 19th century. Physics, it’s not complicated.
JEP: The past predictions, the modelling of the impacts of increasing CO2 emissions have been scarily accurate. There’s almost a linear relationship between the increase in carbon dioxide levels in the atmosphere and global average surface temperatures. We are seeing the consequences of climate change on a weekly, monthly basis through the fires, the droughts and the flooding, in different parts of the world. But we’re still not taking commensurate action. We’re still allowing emissions to increase. I think it’s important to ask, why is that happening In democratic countries? Why is there so little talk about climate change in the US presidential election for example, why is it seen as only a vote-loser, not a potential vote winner by saving the world from climate change?
JEP: I think it relates to the particular aspects of climate change as a problem, that it’s intergenerational. The real benefits from taking action today aren’t for today’s voters. They’re for the next generation of voters. It’s also a collective action problem that, it’s not about what any one country does. It’s about what we all do collectively. That creates a massive incentive for each country and each company in each country to shirk its responsibility to talk the talk, but not walk the walk. Given that dynamic, I think it can change one’s attitude on, is there a role for climate litigation? Because courts may not be particularly well-suited to dealing with these issues, but they might be the best suited branch of government to dealing with these issues.
MA: Thank you so much for that perfect place to end. I just want to again say, thank you for your time, for your wisdom, sharing that with all of our listeners and I hope to see you again and review all of this, and hopefully for some very positive news. That’s it for today’s program, thank you to all of our guests, and also to Ben Goldson and Tim Page who helped produce this program, and most of all, thank you for listening.
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