What if the public, alarmed about government’s failure to do enough, fast enough, to stop climate change while there’s still time, could sue?
Nine hundred Dutch citizens have done just that—and won. The historic recent decision, rendered in June, is already inspiring lawsuits in other countries.
Meanwhile, in Washington State, a group of kids have won a case against the Department of Ecology, forcing it to “consider the undisputed current science necessary for climate recovery.”
Could we see a global civil movement to hold governments accountable, even in the United States? The next few weeks will determine how quickly these legal victories translate into policies that reduce the amount of carbon in our air.
“Only the Law Can Save Us Now”
For years, the Dutch plaintiffs’ lawyer, Roger Cox, has argued, “only the law can save us now.” After the June 24 verdict, he broke down in tears, overcome by the significance of the victory.
The judges in the Dutch case ruled the government is acting illegally by not doing its share “to prevent the threats caused by climate change [and] to care for the protection and improvement of the environment.” They cited the scientific consensus that only a drastic drop in CO2 emissions can prevent a global temperature rise of more than 2°C.
The Netherlands has until September 24 to file an appeal; that could give the government a respite of up to two years. Otherwise, it will have five years to cut greenhouse gas emissions 25 percent from 1990 levels. Current policies target a reduction of just 16 percent.The additional nine percent constitutes a formidable challenge, but less than that faced by some EU countries. Germany, for example, has committed to a 40 percent reduction by 2020.
International Legal Experts: “Just Do It!”
The Dutch court’s decision is in sync with the legal reasoning behind the Oslo Principles on Global Climate Change, released as the case went to court this past March.
The Principles are the work of a panel of international judges and legal experts from around the world including the countries most responsible for greenhouse-gas pollution, the United States and China. The panel gathered in the Norwegian capital to answer the question: do human and other rights require a state to reduce carbon emissions—even in the absence of a specific treaty?
The conclusion can be read as the definitive, authoritative call for legal action: “Regardless of the existence of international agreements, governments already have a legal obligation to avert the harmful effects of climate change, based on existing international human rights law, environmental law and tort law.”
Respect for the role of scientific consensus is the heart of the matter. “Law,” the experts say, “is the bridge between scientific knowledge and political action.”
In other words, there is no reason to wait for 190 governments to assemble at the upcoming December Climate Summit in Paris, engage in complex policy negotiations, and produce what are likely to be more empty promises. Governments are already in violation of the law where climate change is concerned. By asserting their rights, the thinking goes, citizens can hold them accountable and force them to act now.
Cox hopes that the verdict against the Netherlands will readily apply to lawsuits in other countries (lawsuits are being prepared in Belgium, Norway and the Philippines). Says Cox: “Our laws and our courts are the only remaining tools in our democracy to free ourselves from the dangers that our governments pose.”
No US Legal Blueprint—Yet
In the United States, a nonprofit activist organization, Our Children’s Trust, has tried a similar legal strategy. But it only achieved success by changing tactics and suing a state government agency over its failure to carry out mandated responsibilities, rather than going after an entire government over the larger issue.
Our Children’s Trust has been filing lawsuits on behalf of children to compel government action on climate change for the last four years. But “US courts are not willing to go where the Netherlands courts were willing to go,” says Andrea Rogers, an attorney for the Western Environmental Law Center, who represents the young plaintiffs. “The arguments they used in the Netherlands we’ve been using in the United States. We’ve lost in every state and against the federal government.”
So far, the US courts have ruled that responsibility for dealing with the climate crisis lies with the legislative branch. In other words, relief from the climate change catastrophe is a matter for political debate, not an inherent constitutional right.
One of the most disappointing decisions for the activists came in response to a suit by two teenagers in Oregon, where Our Children’s Trust is based. A judge ruled that the state has no existing legal obligation to preserve the atmosphere for future generations and accused the two teens of trying “to completely subvert the legislative process.”
For 19-year-old plaintiff Kelsey Juliana, the Oregon opinion was a “message to all citizens that none of the three branches of government can be trusted to ensure our future.” She and her co-plaintiff are taking their lawsuit to a higher court.
Court Rules in Favor of Climate Science
Our Children’s Trust’s first real victory came in a neighboring Northwestern state, Washington. In a severe legal rebuke, a superior court judge ordered the state’s Department of Ecology to consider “the most current and best available climate science in regulating carbon dioxide emissions.”
Attorney Rogers cites the 2007 court ruling of Massachusetts vs. EPA as the most promising legal precedent for their case. That decision forced the Environmental Protection Agency to recognize that greenhouse-gas pollution from vehicles could “endanger public health or welfare” and to issue emissions standards for new cars.
“We have agencies that are given the authority to regulate and protect our natural resources,” she says. “It’s time that they do that. When they don’t, they can be held legally responsible for failing to do so.”
The plaintiffs in the Washington lawsuit—Zoe & Stella Foster v. Washington Department of Ecology—are eight children, ages 11 to 15, who are spending their summer in the courtroom rather than at the beach, litigating on behalf of themselves and future generations. Before the end of July, they will hold meetings with Washington’s Governor Jay Inslee and then with the Department of Ecology.
“The youth are very clear about what they are asking for,” says Andrea Rogers. “We have to reduce our greenhouse gas emissions by four percent per year starting in 2016. Our hope is that the Department of Ecology is willing to agree with us on that. If not, we will continue to litigate the case.”
“Going into the settlements…what we’re doing is so monumental,” says 14-year-old petitioner Wren Wagenbach. “This is the first time something like this has happened in America.”