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The IBA’s response to the situation in Ukraine
Although it has been widely welcomed, one of the biggest criticisms of December’s Paris Agreement on climate change is that it does not impose emissions reduction targets directly on countries, but instead defers action to each individual sovereign state. In effect, the agreement relies on governments trusting each other to implement their so-called intended nationally determined contributions (INDCs) – the emission reduction plans tabled in the months leading up to the Paris talks.
But what happens if a government backtracks on its publicly available INDC? Or, for that matter, if its contribution doesn’t go far enough?
One possible path is citizen action, including litigation. Last year, campaigners in the Netherlands, led by the Urgenda Foundation, won a case against the Dutch government, claiming it had failed to protect its citizens from climate change. Although the government is now appealing the ruling, observers expect similar cases to appear around the world in the coming years.
‘After Paris, people are going to be even more frustrated if governments don’t act with alacrity. I think there will be more cases,’ says David Estrin, a senior research fellow at the Centre for International Governance Innovation in Canada, and a Council Member of the IBA Section on Energy, Environment, Natural Resources and Infrastructure Law.
‘In the next couple of years, there may be additional lawsuits,’ agrees Jessica Wentz, an associate director and fellow at the Sabin Center for Climate Change Law at Columbia Law School. The litigation could be supported by the commitments outlined in the INDCs, she says, if governments either do nothing to implement the plans or if ‘it becomes clear that the implementation actions are not enough to achieve the specified emission reduction targets’.
However, the Paris Agreement alone would not be a strong enough foundation to bring legal action in most countries. ‘The agreement is a very important first step,’ explains Wentz. It could be used by citizens to hold governments accountable, to ensure they do their part to hold the global average temperature increase to 2°C – as enshrined in the agreement – but domestic legal systems will also come into play, akin to the Urgenda v Netherlands case.
‘In countries that recognise human rights obligations or a duty of care on the part of the government,’ says Wentz, ‘the agreement and INDCs might provide a basis for interpreting those obligations. So we could see more decisions like the Urgenda case, which held that the Dutch government had breached its duty of care to its citizens for failing to adopt more stringent greenhouse gas reduction targets.’
‘It’s inevitable that people will try to use their domestic legal systems to try to enforce the Paris Agreement,’ adds James Cameron, chairman of the London-based Overseas Development Institute and a former representative for Vanuatu at the 1997 UN climate talks which led to the Kyoto Protocol. Given the agreement’s structure, however, Cameron says the success of such endeavours will depend on the particular domestic legal system, and how much it can draw from international agreements into domestic law.
‘The first question,’ suggests Cameron, ‘is does your legal system, like the Dutch, allow the court to look at what the state has agreed to do in a treaty with other states that connects with their own constitutional law?’
James Thornton, CEO of ClientEarth, says the team behind the case in the Netherlands is bringing a similar case in Belgium – although he also notes this model is not replicable in many other countries.
While the Paris Agreement has no specific reduction targets on what countries must do, Cameron says the fact that it is universal, agreed under the auspices of the legally-binding 1992 UN Framework Convention on Climate Change, and that 188 governments have submitted INDCs ‘is a good guide to the seriousness of intent’.
‘What you need to do after Paris is work within countries to ensure that their nationally determined contributions are clear, implementable and enforceable in national law,’ adds Thornton. ‘Unless that’s accomplished, Paris won’t have the effect that’s wanted.’
It’s not just citizens that could seek legal action, but also companies, warns Thornton. For example, he says, if a government’s INDC proposed an increase in renewable energy, supported by subsidies, but then a change of government sees this financial support suddenly withdrawn, investors ‘should have the right to sue’.
Estrin also points to higher awareness and interest in climate policies by the financial sector, from investment planning and decisions to insurance products and challenges.
Cameron can see the case for challenging infrastructure investment choices by governments, if the decision ultimately locks in high-emitting options over lower ones. All our constitutional law realms can draw in the Paris Agreement in some elements, he explains. In this example, it could be argued that such a decision is ‘irrational’. ‘You can see yourself compiling the case now, but it doesn’t guarantee victory,’ he adds.
CIGI; IBA SEERIL
Other notable cases that preceded the Paris Agreement include one in Pakistan, where last year the High Court Green Bench in Lahore found in favour of a farmer who had taken the government to court for failing to implement its 2012 climate plan and recommendations. The court ruled that this failed to protect the country’s citizens.
More recently, at the start of March, a US District Court in Oregon heard a complaint filed against the US government last year by non-profit Our Children’s Trust on behalf of 21 young people aged eight to 19. The plaintiffs claim the government is failing to protect their constitutional rights by continuing to promote fossil fuels, thus placing a heavier climate change burden on their generation. They are seeking to force the government to introduce a plan to decrease atmospheric carbon dioxide concentrations to 350 parts per million (ppm) by 2100. By comparison, the US National Oceanic and Atmospheric Administration reported that levels in February were 402.6 ppm.
‘There’s a lot of movement,’ says Estrin. ‘Citizens know a lot needs to be done, states know a lot needs to be done. Courts are going to be increasingly alarmed when they see the [Intergovernmental Panel on Climate Change] science, which is clear, and the Paris Agreement. I think many courts will be inclined to act.’
Katie Kouchakji is a freelance journalist covering climate change policy and carbon markets, and can be contacted on firstname.lastname@example.org
Useful information on climate change litigation case law can be found at http://tinyurl.com/climatechangelitigation