The Changing Face of Environmental Litigation

by Ming Zee Tee

Art by Julia Jones

“Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it” – So goes District Judge Aiken’s judgment in the seminal case of Juliana v United States, a damning indictment of the judiciary and its role in climate change.


Thankfully, her words were a call to action: her judgment denied the Trump administration’s motion to dismiss the Juliana case (currently in proceedings), in which 21 young plaintiffs assert that the U.S. government has violated their fundamental rights by allowing activities that harm the climate.   This landmark case, if won, would be the first case where a U.S. court recognizes the constitutional right to a safe climate – possibly paving the way for other claimants to sue the U.S. administration for similar constitutional rights.


Environmental litigation has indeed been an uphill battle. Facing armies of lawyers backed by big corporations, resource-poor litigants quiver under political pressure, and are blindsided by vexatious legal manoeuvres. In court, environmental claims face significant legal challenges, with many lawsuits dismissed before reaching court. Where Juliana has overcome this hurdle, similar actions brought in 12 other states have failed.


And yet, the wave of litigation keeps rolling on. More than a thousand suits have been filed since 1986, a third of which were filed within the past three years. The US, fielding the bulk of the cases, has seen a strong push from sub-national actors: states, cities, and NGOs who are frustrated by the Trump administration’s policies. Using the scales of justice, sub-national actors challenge regulators to reduce carbon emissions, revoke licences for harmful energy projects, and penalize businesses for their contributions to emissions, or for failing to disclose climate-related financial risks.


"Legal liability is all about responsibility, or finding the right party to blame. This hinges on the concept of ‘causation’: a party must cause an act, and the act must cause the harm suffered by litigants."

Unfortunately, many legal cases have been stopped in their tracks by a constellation of problems. Firstly, legal liability is all about responsibility, or finding the right party to blame. This hinges on the concept of ‘causation’: a party must cause an act, and the act must cause the harm suffered by litigants. Yet causation is painfully difficult to prove in climate science – the phrase “no single event can be attributed to global warming” is endlessly repeated. Courts have to make difficult judgments on an actor’s spatial and temporal proximity to the harm in question, and review innumerable third parties linked to greenhouse gases (GHGs): from corporations involved in actual emissions productions, to the underlying consumer demand driving it. Forget a single ‘chain of causation’, it is more like a miasma of contributory factors.  


To complicate things, defendants can deflect legal claims using arguments based on ‘but-for’ causation. These arguments posit that, absent an actor’s contributions, the outcome would have occurred anyway: for example, had a company not produced x amount of GHGs while refining ores, another industry player would have stepped in to make up the supply deficit, thereby generating status quo emissions anyways.


Meanwhile, the separation of powers – at the heart of every democratic nation – sometimes proves inconvenient. Democratically appointed parliaments have the electoral mandate to formulate climate policy; they also have access to technocratic expertise on scientific matters. Courts have neither of these – and so cannot easily challenge the laws laid down by the democratically-elected parliament, without being accused of subject-matter ignorance and constitutional illegitimacy.


The separation of powers determines ‘justiciable’ matters: what may or may not be decided by a court. For example, where Parliament grants planning permission for the development of a railway line that cuts through a housing estate, this will usually override the interests of the homeowners. If an individual homeowner tries to bring his case to trial, the Court is likely to defer to parliament’s assessment, trusting that it has already made a sound cost-benefit analysis. Otherwise, how is the Court to conduct an independent inquiry into the boons of connectivity and economic gain from the railway? How is it to calculate the impacts of the displacement of people, and the noise pollution that the rail will create? Such an exercise would be costly, time-consuming, and unprofitable for a legal system to pursue.


This problem of justiciability rears its head whenever sub-national actors attempt to seek climate justice through the mechanism of the Courts, instead of through parliamentary action. Judges commonly defer to the executive or legislative (parliament) to solve environmental problems, because solutions require vast amounts of policy research, and co-exist in a network of interlinked governmental initiatives.


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But some cases have found a way through. In 2015, the case of Urgenda Foundation v. The State of the Netherlands cleared all these hurdles. Portmanteau of ‘urgent agenda’, a Dutch environmental group launched a claim against the government, arguing that the Netherlands must do more to avert the imminent danger posed by climate change in view of its ‘duty of care’ to protect and improve the living environment. In its judgment, the Hague District Court ordered the government to raise its commitment to 25% below 1990 levels by the year 2020, from a previous level of 17%.


This was the first time any court had mandated a State to meet a concrete percentage of emission reductions. Even more uniquely, the suit had succeeded not on government-issued regulations, but on a common law ‘duty of care’: that the government had an irrebuttable legal obligation to look after the wellbeing of its citizens. It was a conscious decision of Urgenda’s lawyers not to base the suit on government regulations, because such a case would involve assessing the actions of the government in light of current environmental laws. The essence of the climate problem is the fact that current environmental laws do not provide sufficient protection against the climate risks. Using the more general ‘duty of care’ reasoning enabled judges to weigh in a large number of facts and circumstances, and define a standard of socially responsible behaviour independent of what the government had already set.


The Dutch case points to a way forward for other court cases. Dutch judges readily found the government culpable, linking the State’s actions to GHG emissions through its “power to, and actual control of, the collective Dutch emission level”. In finding justiciability, the Court considered that the authority to resolve this environmental dispute between citizens and their government was a core judicial function. However, it still respected the separation of powers framework: by not specifying how the 25% reductions should be made, it did not constrain the State to take certain legislative measures or adopting a certain policy. The court also dismissed point-blank the claim that the Dutch contributions to GHGs was so minute that no judicial remedy could have a recognizable impact. Instead, “the fact that the current Dutch greenhouse gas emissions are limited…(did) not alter the fact that these emissions contribute to climate change.”


We cannot, however, treat this triumph as a legal magic bullet. The decision was born from a collision of favourable circumstances, and litigants’ well-crafted legal arguments were but factors in a larger whole. For starters, Urgenda’s prominent profile and political links gave it the clout to make its voice heard. The foundation is at the forefront of the Netherlands’s sustainable transition movement, and is closely associated with Jacqueline Cramer, the previous Minister for Planning and the Environment. This is important: under her purview, the Dutch cabinet had passed a commitment of a 25%-40% emissions reductions by 2020. It was only the subsequent government (previously the opposition party) that reduced this commitment to 17%. This fact alone enabled the court to conclude that the government faced “no serious obstacle…to adhere to a stricter reduction target”, enabling it to confidently impose the 25% target.


Additionally, during the case Holland’s media prominently featured pro-environment voices. Influential quarters of society decried the inadequacy of Netherland’s climate change leadership, and Dutch newspapers, such as Volkskrant or Trouw, wrote frequently about the Netherlands lagging behind the UK and Belgium. These sentiments featured strongly in press coverage around the Urgenda case, giving the Court the intangible support of the people behind its decision.


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Art by Julia Jones

As with any movement aspiring for large-scale change, Urgenda shows us the interdependency of forces that shape our environmental campaign. Yes, courts are remarkable in their ability to compel action from powerful agents. But whether they exercise this power is dependent on a combination of context, public opinion, and the political winds of the time. The successes of climate litigation require a coming together of forces: this is why activism, media campaigns, and lobbies are as essential to the fight as the iron hand of the law.


But litigation can be a game-changer. Within a nation, each court decision adds to a corpus of legal knowledge, clearing the way for future claimants. The Hague District Court found the government liable – but this was only possible because of a previous case which enabled liability to be imposed on States proportional to the share of pollution they contributed. In international law, the story is more complicated: every country has its own legal system, and decisions may not be so readily transferrable.


However, legal systems do share some judicial DNA, and judges are not deaf to the advancements of l