An Overview of National and International Climate Change Litigation

By: Rachel Green

Image Credit: PBS

“I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Ann Aiken, former Chief Judge of the United States District Court for the District of Oregon, said this in the case of Juliana v. United States, a recent action concerning climate change and the effect it has on younger and future generations. Several young plaintiffs alleged immediate “concrete injury” due to climate change, such as losing their homes as a result of excessive flooding.  Judge Aiken determined that the plaintiffs’ constitutional rights to life, liberty, and property were violated because of the government’s involvement in the increase of global warming, such as not enforcing limits on greenhouse gas emissions. Aiken upheld the idea that access to a clean environment is a fundamental right. This right applied to the plaintiffs in Juliana because their generation would be the most impacted by climate change and yet they have no voting rights to influence the government. Although there has been much climate change litigation in the past, there is a new focus on the human rights aspect in common law.

Most climate change litigation has taken place on a national scale, with the plaintiffs in each case bringing suit against their own governments. However, some cases combine the efforts of plaintiffs on an international scale, such as People’s Climate Case (discussed below). Many of these cases focus on holding governments and corporate entities accountable for actions that accelerate climate change, and bring forth questions regarding the human rights implications for people around the world. These questions could be answered by examining both national and international climate change litigation, as well as the Paris Agreement.

In lawsuits around the world, Plaintiffs allege that their governments are not carrying out the main provisions of their countries’ environmental regulations and statutes. In Leghari v. Federation of Pakistan, a Pakistani farmer sued the government for its failure to carry out the main provisions of the National Climate Change Policy of 2012, and the Framework for Implementation of Climate Change Policy (2014-2030). The court found that the government’s inaction violated Leghari’s fundamental human rights. Dutch courts found a similar conclusion in Urgenda Found. v. State of the Netherlands, in which it was decided that the Dutch government must cut its greenhouse gas emissions by at least 25 percent by 2020, as compared to 1990 levels.

There have been many treatises and agreements to better climate change, and one of the most recent is the Paris Agreement. The Paris Agreement works to combat climate change and accelerate the actions needed for a low-carbon future. It also builds on the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC has the ultimate goal of stabilizing greenhouse gas concentrations “at a level that would prevent dangerous anthropogenic interference with the climate system,” and that level should be reached within a time frame that allows ecosystems to naturally adapt to climate change, ensures that food production is not threatened, and enables economic development to proceed in a sustainable manner. The Paris Agreement is one of the first international agreements that directly addresses the human rights implications of climate change, as well as how implementing sustainable practices affects developing countries.

In People’s Climate Case, the human rights side of climate change is put into action. Ten families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Saami Youth Association Sáminuorra started this action. The plaintiffs allege their homes, livelihoods, cultures, and more are affected by climate change and want to take European Union (EU) institutions to court to protect their rights and prevent more dangerous climate change. This case was dismissed in May 2019 by the General Court of the EU which stated that although climate change exists and affects everyone, individuals do not have the right to challenge the bloc’s environmental plans. The plaintiffs in this case plan to appeal the General Court’s decision.

There have not been many climate change cases involving plaintiffs from different countries, like People’s Climate Case. International climate change litigation tends to lead to more questions than answers about how it will affect international environmental regulations. However, many years ago, the same could be said for national climate change litigation. Regarding climate change actions taken in the United States, Massachusetts v. Environmental Protection Agency was a landmark case that led to changes in national environmental laws and regulations. Prior to that, climate change litigation was not often successful, and that same pattern could repeat itself again for international climate change litigation.

One of the ultimate goals of climate change litigation is to encourage countries to scale back greenhouse gas emissions and, as seen in the Paris Agreement, climate change litigation also seeks to protect food security, public health, livelihoods, and lives of members of affected communities. As more international treatises and agreements are created and signed into action, there may be more room for climate change litigation to successfully impact how international law combats global climate change.