Michael Burger
Executive Director
Today marks the official beginning of the long-anticipated 21st Conference of the Parties to the UNFCCC, in Paris, France. As in the past—Copenhagen in 2009, Kyoto in 1997—hopes are high that government leaders will sign an international agreement that puts the planet on course to avoid the very worst impacts of climate change. Certainly things are different now than at previous COPs. The connection between global warming and the increasing severity and frequency of extreme events has become unmistakable, all across the planet. The security implications of flood, drought and displacement have become manifest, in Syria and elsewhere. And the US and China, instead of jockeying for negotiating position, have agreed that all countries need to reduce greenhouse gas emissions.
In the courts, we have seen another crucial shift, and one that should give governments added incentive to reach agreement in Paris. As a handful of recent judicial decisions reveal, climate action is not just a moral responsibility and a political necessity, it is also a legal obligation.
The most famous of these cases is Urgenda Foundation v. Kingdom of the Netherlands, from the District Court of the Hague. Here, the judge found that the Dutch government’s duty of care, owed to Dutch citizens, requires it to increase its GHG emissions reduction target to a level consistent with climate science. That is, the court told the government it has to set a target that puts the country on a path toward emissions levels consistent with a 2 degrees Celsius increase in global temperatures. In reaching this path-breaking decision the judge invoked the Dutch constitution, the European Convention of Human Rights, the precautionary principle, and the principle of sustainability. (The case is under appeal. Meanwhile, the Dutch government has stated that it will revise its GHG emissions reduction target in conformance with the judge’s decision.)
Another key case, Ashgar Leghari v. Federation of Pakistan, comes from the Lahore High Court Green Bench. In this case, a Pakistani farmer had sued the government for its failure to follow through on its national climate policy, enacted in 2012. That policy had set forth numerous adaptation measures for the government to carry out. The court found that the government’s failure to do so violated the constitutional rights of its citizens, including the rights to life, a healthy and clean environment, and human dignity, and that it was inconsistent with foundational principles such as the precautionary principle, sustainable development, inter- and intra-generational equity, and the public trust doctrine.
Two cases from state courts in the US give further support to the notion of a legal obligation to combat climate change. In Akilah Sanders-Reed v. Martinez, the New Mexico Court of Appeals held that the state’s public trust doctrine imposes on the state government a duty to protect state’s natural resources, “including the atmosphere.” In Zoe and Stella Foster v. Washington Dep’t of Ecology, the King County Superior Court in Washington found that the state’s public trust doctrine requires the government to act on climate change not because of a duty to protect the atmosphere in and of itself but because of impacts on natural resources that fall under the state’s public trust protections, such as ocean acidification and coastal loss due to sea level rise. The cases are of somewhat limited impact. Courts in some other states have reached different conclusions, and refused to extend the public trust doctrine to climate change. And in both of these cases the state courts found that state statutes had established procedures for addressing climate change, and deferred to those processes rather than super-impose an additional common law layer on them. Nonetheless, the opinions affirm the core duty to protect the public, and the potential role of the common law as a backstop to government inaction.
The core message of these cases is clear: Sovereign governments have a legal duty to their citizens to take action on climate change (under the legal systems of some countries, at least). This duty is grounded in ancient legal doctrines, like the public trust and the “no harm” rule; international norms, such as the precautionary principle; and human rights. The Oslo Principles, released earlier this year by a group of judges, professor and lawyers (including our Michael Gerrard), elaborate on these obligations further. The implications for Paris should also be clear: Failure is not an option. Because if governments can’t set a course courts may have to do it for them.
