Climate emergency: young people seek to use litigation to force action

Katie Kouchakji, IBA Environment CorrespondentWednesday 7 October 2020

The complaint – Youth for Climate Justice v Austria, et al – specifically alleges that Articles 2 and 8 of the ECHR have been breached: the right to life and the right to respect for private and family life.

It also invokes Article 14 – the prohibition of discrimination – and argues that the breaches of Articles 2 and 8 will have a greater impact on the youth than on older generations because of their ages.

Typically, human rights complaints are dealt with by domestic courts before moving to the ECtHR. However, an exception to that rule allows the bypassing of domestic courts if there’s no adequate remedy reasonably available. Given the complaint is against 33 nations and its view that domestic remedies in Europe have so far fallen short of what the scale and urgency of the crisis demands, the group are hoping to have their application accepted by the Court, explains Liston.

He notes that the complaint seeks to build on the so-called Urgenda case, in which the Supreme Court of the Netherlands upheld lower court rulings that the Dutch government needed to increase its 2020 greenhouse gas (GHG) emissions reduction target as its prior goal was inadequate. The Urgenda Foundation, a non-governmental organisation, invoked Articles 2 and 8 of the ECHR in making this case.

‘We’re asking the Court to issue a declaration that the respondent states are breaching the ECHR because they are failing both to adopt the deep and urgent cuts that are necessary to address the climate emergency and to take responsibility for the ways in which they contribute to emissions released overseas, through their export of fossil fuels, for example,’ says Liston.

He adds that the case is fundamentally about compliance with the ECHR rather than the Paris Agreement, but that the plaintiffs expect the Court to interpret states’ human rights obligations in light of the 1.5°C target contained in the Paris Agreement.

Ultimately, Liston says, the group would like to see the ECHR applied uniformly across Europe and force the respondents to adopt mitigation efforts that are consistent with 1.5°C compared to pre-industrialised temperatures.

‘There is a trend towards these kinds of cases,’ says Dr Markus Beham, European Regional Forum Liaison Officer of the IBA Human Rights Law Committee and an assistant professor at the University of Passau, referring to the use of courts to force incremental changes on societal issues.

Other notable climate cases include Juliana v United States, in which 21 youths sued the US government for climate inaction. The case is currently waiting for a decision as to whether the Ninth Circuit will rehear it en banc following its dismissal on the plaintiffs’ lack of standing.

Another is La Rose v Her Majesty the Queen, filed in Canada in 2019 on behalf of 15 youths, who allege that Canada’s federal government has failed to protect their human rights by not taking adequate action to address climate change.

Finally, in Sacchi et al v Argentina et al, 16 youths filed a complaint with the UN Committee on the Rights of the Child against Argentina, Brazil, France, Germany and Turkey in 2019. They allege the countries violated their human rights by failing to cut GHG emissions enough and by not encouraging other large emitters to reduce their emissions.

Even Covid-19 has not stemmed the tide of litigation. September saw a class action filed by eight youths in Australia, which seeks an injunction against the expansion of a coal mine in Gunnedah. The youth claim that Federal Environment Minister Sussan Ley has a common law duty of care for young people and to prevent future harm.

‘Certainly this is a very important public interest case – the foundation of the case is to stop the climate impacts of the expansion project,’ says David Barnden, Principal Lawyer at Equity Generation Lawyers, who represents the claimants. ‘But it’s certainly not a great leap to imagine that this case could have precedent for decisions relating to other new fossil fuel projects with significant climate impacts.’

Notably, an outcome in favour of the youth could have an impact on the Australian government’s plan to use natural gas as a ‘clean’ alternative to coal as it looks to transition to a low-carbon economy.

‘Litigation has always been considered an alternative means to push things forward,’ notes Dr Beham, especially when the legislature is not moving on an issue.

Claimants have two routes to take, he says: either file against an entity, such as a governmental agency; or against an individual, such as a privately held company. With the first, litigation looks at what efforts the state is making, versus international treaties or domestic measures, in terms of rights.

Under the second pathway, typically the goal is an injunction or damages of some form. A well-known example is the Huaraz case, in which Peruvian Saúl Luciano Lliuya is seeking damages from German energy company RWE for its alleged contribution to the climate change impacts felt in his town and the adaptation measures they will need to undertake, in proportion to RWE’s estimated contribution to global GHG emissions. RWE has disputed its responsibility for climate change-induced damage in the Andes.

The Higher Regional Court of Hamm has allowed the case to progress to the evidentiary phase. However, the case has now stalled due to Covid-19 travel restrictions, Dr Beham says.

‘Given the scale of the threat, we’re going to see every conceivable effort made – through legal channels, through political channels, through activism, whatever it might be – to force governments to act,’ says Liston.