New Model Statute for citizens to challenge governments failing to act on climate change

‘Law and lawyers will have a vital role to play in securing climate justice. The Model Statute will stimulate lawyers to think about their important ethical roles in protecting this fragile world.’

Mary Robinson
Chair of the Elders;
United Nations Secretary-General’s Special Envoy for Climate Change (2014–2016)

An unprecedented step forward to provide citizens around the world with a critical new tool to address the climate emergency and achieve climate change justice will be launched by the International Bar Association (IBA) Climate Change Justice and Human Rights Task Force on Tuesday 18 February at Doughty Street Chambers in London, United Kingdom. The Model Statute is available to download for free from the IBA website.

The Model Statute for Proceedings Challenging Government Failure to Act on Climate Change (the Model Statute) is the first of its kind. Based on advice from leading experts, it provides detailed rationales, precedents and 23 specific Articles for reforms which will enable citizens to ask for judicial review of the sufficiency of their government’s climate measures and, where these are lacking, to assess whether more government measures are warranted under domestic laws. It is important to note that the Model Statute does not address climate suits against private entities, as these involve distinct legal theories and defences.

David Estrin LSM, Co-Chair of the IBA Model Statute Expert Working Group, commented: ‘This Model Statute is intended to lower the procedural legal hurdles many citizens face when trying to access the courts. Building on recent successes and judicial reasoning, it highlights the role of litigation in setting requirements for governments to protect the public. The adoption of some or all of the Model Statute by judges, rules of court, policy-makers or legislatures will help ensure a critical and timely reduction in greenhouse gas emissions.’

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The Working Group recognised that despite some influential litigation successes, there remains many legal hurdles for citizens attempting to hold governments accountable for climate inaction. For example, in some cases, governments have argued that the climate crisis is a policy issue and therefore cannot be ruled upon by the courts. In other instances, procedural and legal hurdles, such as courts denying citizen standing to bring on the case, have led to their dismissal before the merits were argued; and other issues, such as litigation costs, which include lawyers’ fees, court fees and disbursements, can negatively ‘chill’ citizens from even trying to access courts. The Articles of the Model Statute, where adopted by courts or legislatures, would allow these hurdles to be lowered or eliminated.

Articles of the Model Statute include:

• Article 4, which provides for citizens to find an open courthouse door (‘standing’) to ask a judge to protect them from climate harm. Standing barriers in government litigation are still a problem in some countries, preventing citizens from even bringing such suits. The Model Statute provides for courts to adopt ‘open standing’ or ‘public interest standing’, as well as intergenerational standing, approaches that have worked well in government litigation in other countries as the first step in eliminating access to justice barriers;
• Article 16, which provides guidance regarding potential Government defences: [16.2) ‘…it is not a defence for the Government to show it has only allowed or emitted a small quantity or volume of greenhouse gases (GHGs), has caused or permitted only a minor degree of harm, or is responsible for a small share of the GHG emissions.’
  
  These defences are inconsistent with the international climate treaty commitments each State has made to rein in GHG emissions within their own borders, in addition to working with other States for this purpose.
  
  [16.3] ‘…it is not a defence to assert that Government regulation of climate change is non-justiciable as a political, policy, executive or legislative function’.
  
  This defence has been rejected by a number of courts, including the 2019 Netherlands Supreme Court Urgenda decision, on the basis that while policy issues are for government, the courts have their own part to play in deciding whether governments are within the limits of laws by which they are bound (eg, not to infringe constitutional or human rights of their citizens) and for the courts to offer legal protections ‘even against the government as an essential component of a democratic state under the rule of law’; and
• Article 23, concerning the reduction of citizen court costs and liability ‘chill’ in government litigation: ‘In Government-related climate change proceedings, except in exceptional circumstances, the Court is:
  
  • (a) to order an unsuccessful Government defendant to pay the costs of the successful plaintiff or applicant;
  • (b) not to order the unsuccessful plaintiff or applicant to pay the costs of any successful Government defendant; and
  • (c) to consider whether the unsuccessful plaintiff should be awarded costs against the Government defendant for upholding or advancing an important public interest issue or the law relating to climate change, the environment or human rights.’

Roger Martella, Co-Chair of the IBA Model Statute Expert Working Group and former General Counsel of the United States Protection Agency (EPA) during the time of the Massachusetts v. EPA case, stated: ‘The law has a huge part to play in successfully addressing global climate change, but it is not always easy for citizens and communities to access their courts and assess government action, or the lack thereof. Simply put, this Model Statute levels the playing field. It provides much-needed process and access for government litigation to be heard, without prejudging the outcome of those cases under domestic laws.’

Over the past decade, and particularly since the adoption of the Paris Agreement by many nations in 2015, citizens have increasingly turned to litigation to prompt governments to take action on the climate emergency. In the 2006-2007 Massachusetts v EPA case, following petitioning from environmental groups and several states, the US Supreme Court determined that the EPA must consider whether to regulate GHGs and justify its decision. The landmark result ultimately led to US President Barack Obama’s administration creating new GHG regulations involving several sectors of industry.

The proposed legislation follows the IBA’s Task Force on Climate Change Justice and Human Rights landmark 2014 report, Achieving Justice and Human Rights in an Era of Climate Disruption, which identified the numerous legal hurdles facing citizens in climate litigation cases. Whilst the Articles are aimed at being adopted by legislatures and the courts, the introductory Commentary of the Model Statute Report is directed at those without any legal training or background to assist in a better understanding of the opportunities for citizen litigation challenging government climate action and inaction.

Journalists wishing to attend the launch event for the Model Statute on Tuesday 18 February from 1800 – 2000 at Doughty Street Chambers, 54 Doughty St, Holborn, London WC1N 2LS, UK, should register here:
www.ibanet.org/Model-Statute-For-Climate-Change

ENDS

Notes to the Editor

1. Click here to register for the launch event on Tuesday 18 February, taking place from 1800 – 2000 at Doughty Street Chambers.
2. Click here to download a PDF of the Model Statute for Proceedings Challenging Government Failure to Act on Climate Change: www.ibanet.org/Climate-Change-Model-Statute
3. Check the Model Statute web link for periodic updates
   Following the February 2020 release of the Model Statute, it is intended that periodic updates will be made to its Commentary and endnotes in response to future cases and rulings, so readers may want to refer back to this web link for updates. If possible, new developments will also be listed by jurisdiction so readers can reference the latest changes from their country.
4. To view the IBA’s Task Force on Climate Change Justice and Human Rights 2014 report, Achieving Justice and Human Rights in an Era of Climate Disruption, visit
   www.ibanet.org/PresidentialTaskForceClimateChangeJustice2014Report
5. About the Presidential Task Force on Climate Change Justice and Human Rights
   The Presidential Task Force on Climate Change Justice and Human Rights is Co-Chaired by Baroness Helena Kennedy QC, Director of the International Bar Association’s Human Rights Institute (IBAHRI), and David Estrin LSM, Certified Environmental Law Specialist and Distinguished Adjunct Professor at Osgoode Hall Law School, York University, Toronto. The Task Force was established in 2012 to address the justice concerns posed by the climate crisis and to support the IBA in assessing the challenges to the current international legal regimes on the climate emergency.
6. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

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