Global Warming Goes To Court

Tuesday, September 1, 2015
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Barbara Kelley

“No challenge  poses a greater threat to future generations than climate change” declared President Obama in his most recent state of the union address last January. Environmental activists applauded, but they are not satisfied. Despite the Obama Administration’s executive initiatives, including aggressive new limits on carbon emissions from power plants, there is widespread agreement in the climate action lobby that governments everywhere are not doing enough.

After years of testifying before administrative agencies and lobbying in legislatures with disappointing results, many climate activists see the courts as their last best hope. Over the past few years, lawsuits have been filed in almost every American state and in many foreign countries asserting that the judiciary has the authority and the responsibility to order the executive and legislative branches of government to take more aggressive actions to combat climate change.

Because the judicial role is generally understood to be that of law interpreter and enforcer, not law maker, plaintiffs in these climate change lawsuits must persuade the courts that existing law requires them to order their coequal branches of government to do what they have previously failed or even declined to do. In the United States, most plaintiffs have relied on the common law doctrines of public nuisance and public trust. Pursuant to both theories, the idea is that the public has preexisting rights that are being violated by government’s failure to adequately mitigate climate change. In other countries, climate change lawsuits are more often founded on alleged government obligations under international law and on public rights implicit in international legal principles.

The difficulty for plaintiffs in all of these climate change lawsuits is that their legal theories have little basis in positive law or judicial precedent. The common law theories relied on by U.S. plaintiffs require courts to make vast leaps from prior judicial rulings, while the international law claims made elsewhere require courts to extract concrete legal rules from vague principles like fairness, sustainability, and the precautionary principle.

In the U.S. and other countries with strong rule of law traditions, most judges, even if sympathetic with the climate activists’ concerns, are reticent to engage in the sort of creative interpretation required to reach a ruling favorable to the plaintiffs. Doing so feels uncomfortably like policy making, particularly in light of the extensive efforts over the past decades to get legislative and executive officials to take action. But in all things, including judging, there are exceptions—hence the climate activists’ strategy of filing a multitude of lawsuits in courts of all sorts. Sooner or later, a court will be persuaded that the alleged climate crisis justifies judicial intervention.

This scattershot strategy has recently borne fruit in the Netherlands. In a ruling dated June 24, 2015, the Hague District Court (Chamber for Commercial Affairs) ordered the government of the Netherlands to implement climate change mitigation measures sufficient to achieve at least a 25 percent reduction (from 1990 levels) in Dutch carbon dioxide emissions from all sources (public and private) by 2020. Current government policies are projected to achieve a 14-17 percent reduction by 2020, with an 80 percent reduction by 2050. Indeed, the government is in full agreement with the plaintiffs and the court that an 80 percent reduction by 2050 is necessary to assure that carbon dioxide concentrations do not exceed 450 ppm by 2100.

Given that the plaintiffs and the government agree on the ultimate goal while disagreeing only on how to get there, why isn’t this an issue properly resolved in the executive and legislative branches of the Dutch government? Because, says the Dutch court, that government’s policy choices violate the rights of Dutch citizens.

The plaintiff in the case is the Dutch environmental organization Urgenda, described by the court as “a citizens’ platform . . . involved in the development of plans and measures to prevent climate change.” As part of a global strategy to persuade courts that they have authority to trump the climate policy decisions of the legislative and executive branches of government, Urgenda’s lawsuit resulted in a rare but significant victory for climate activists. The ruling will now be cited as precedent in pending and future lawsuits not only in the Netherlands, but across the globe.

It was inevitable that sooner or later a court would be persuaded to declare that the threat of climate change requires judicial intervention. But whatever one thinks about climate change science and the severity of the threat to human populations, the Dutch court decision is a clear usurpation of the policymaking role of the legislature.

Recognizing the brazen nature of their mandate, the Dutch judges take pains to explain why they believe they are not violating the separation of powers as it exists under Dutch law. “The task of providing legal protection from government authorities, such as the State, preeminently belongs to the domain of a judge.” “With this order,” they proclaim, “the court has not entered the domain of politics.”

For that claim to be credible, the plaintiffs must have preexisting rights that are violated by their government’s failure to enact the policies favored by plaintiffs. How are the rights of Dutch citizens infringed by their government’s choosing policies that will achieve at best a 17 percent reduction in carbon emissions as opposed to policies that would achieve a 25 percent reduction, bearing in mind that these projections of future carbon levels are highly speculative? Would a projected 20 percent reduction in emissions be sufficient, or must the predicted reduction be at least 25 percent?

It turns out the rights found to be violated by Dutch climate policy are rooted in: (1) an assortment of international agreements and the statutory and constitutional responsibility of the Dutch government to provide a “healthy and safe living environment,” (2) previous Dutch policy projected to cut emissions by 30 percent by 2020, and (3) an international scientific consensus, with which the Dutch government agrees, that 450 ppm of carbon dioxide in the atmosphere is the maximum that can be allowed to assure that average global surface temperatures will not rise more that 2 degrees centigrade (from 1850).

Based on a lengthy review of all of this, and notwithstanding the court’s admission that it “does not have independent expertise in this area,” the court concludes that existing Dutch climate policy constitutes a negligent breach of a duty of care owed the plaintiffs and all Dutch citizens.

A sampling of the international norms on which this duty of care is based includes “fairness,” the “precautionary principle,” “sustainability,” the “principle of a high protection level,” and the “prevention principle” (whatever any of those mean). “With due regard for all the above,” write the Dutch judges, “the answer to the question whether or not the State is exercising due care with its current climate policy depends on whether according to objective standards the reduction measures taken by the State to prevent hazardous climate change for man and the environment are sufficient.”

In assessing the legal sufficiency of the Dutch government’s climate policies, a court might be expected to look to previous cases, if not the settled laws of the Netherlands. Instead, the court offers a long series of policy conclusions including, for example: “the costs of the measures ordered by the court are not unacceptably high,” “as a developed country the Netherlands should take the lead,” and “it [is not] evident that the State has insufficient financial means to realize higher reduction measures.” And just for good measure, the court declares that it “adopts an evolutive approach,” meaning “the Court is not bound by its previous decisions” because “the interpretation of the rights and freedoms is not fixed but can take account of the social context and changes in society.”

Coming from a court in a nation that purports to adhere to the rule of law and the constitutional separation of powers, these declarations are astonishing. The Dutch court takes upon itself the clearly legislative task of determining what costs are acceptable to the Dutch people and their government. Resources expended on carbon emission reduction are resources not available for other public purposes. Choosing among the alternatives is not a judicial function. And the court’s declaration that rights and freedoms are contingent on social context and changes in society as monitored by the judiciary is a transparent abandonment of the rule of law.

Americans and Europeans will ignore this Dutch court decision at their peril. The ruling will be cited widely as similar cases come before courts around the globe. It should be roundly dismissed for what it is—a blatant affront to democratic government and a dangerous departure from the rule of law.