By Daniel Metzger and Hillary Aidun
Major Developments in International Climate Litigation in Early 2020
The first two months of 2020 saw a significant number of notable developments in climate change litigation. Building on the recent Urgenda ruling, rights-based litigation is expanding, although recent decisions suggest that such lawsuits yield mixed results. Plaintiffs are also increasingly leveraging environmental assessment requirements to block discrete but significant greenhouse gas-emitting projects. And new cases indicate that advocates are employing novel approaches to try to hold private companies directly liable for greenhouse gas emissions. A survey of this year’s major developments follows.
Innovative Rights-Based Approaches
On January 15, 2020 a group of Indian tribes in Alaska and Louisiana submitted a complaint to ten United Nations Special Rapporteurs alleging the U.S. government has failed to address climate-driven violations of their rights to life, health, housing, water, sanitation, a healthy environment and food, among others. They argue that the Tribes’ land is becoming uninhabitable both because of slow, ongoing climate impacts like sea-level rise, and because of extreme weather events made worse by climate change. According to the Tribes, despite awareness of those challenges neither the federal nor state governments have done enough to engage, consult, acknowledge, and promote adaptation strategies to ensure the Tribes’ continued self-determination. The complaint calls on the Special Rapporteurs to investigate, and to intervene by recommending that the federal government and the states of Alaska and Louisiana take specific steps to address displacement caused by climate change.
This proceeding is representative of a growing movement to address climate-driven displacement in litigation. Although the recommendations that the Tribes seek would not be binding, their complaint lays out a blueprint for future actions to demonstrate how inaction on climate change and ineffective adaptation efforts can displace anyone living in vulnerable coastal communities. Read more>>>
On February 10, 2020 two Wet’suwet’en Houses filed a suit in Canadian Federal Court alleging that the Canadian government’s approach to climate change has violated their constitutional and human rights. Climate change, they point out, has already caused significant warming effects on their territories, and is expected to bring negative health impacts as well. The plaintiffs in this action go to lengths to assert both that Canadian law provides a clear basis for strong national action on climate change and that Canada has failed to meet its international commitments. Importantly, they argue that even if Canada were meeting its Nationally Determined Contribution under the Paris Agreement, Canada would still fail to “fairly contribute” to reducing global carbon emissions.
The Complaint is noteworthy because, among other reasons, it directly confronts likely questions about justiciability by laying out the full legal basis under which Canada could regulate greenhouse gas emissions more strictly than it currently does. In addition, citing a litany of examples of high-emissions projects that have survived environmental impact assessment, plaintiffs argue that the Court should order Canada to amend its environmental assessment statutes. They suggest that those amendments should allow any project’s approval to be canceled if Canada is unable to reduce its emissions to a level consistent with keeping mean global warning between 1.5° and 2° C, or if climate change is declared a national emergency.
A recent action by the Supreme Court of Ireland suggests that rights-based litigation may be gaining a foothold in Europe following the Dutch Supreme Court’s extraordinary ruling ordering the government to cut emissions by 25% by the end of 2020. On February 13, 2020 the Supreme Court of Ireland granted Friends of the Irish Environment’s (“FEI”) extraordinary application to “leapfrog” over the intermediate appellate court and file an appeal directly with the Supreme Court. Last year a lower court rejected FEI’s argument that Ireland’s approval of a National Mitigation Plan violated Ireland’s Climate Action and Low Carbon Development Act and rights protected by the European Convention on Human Rights and the Irish Constitution. The court held that although the plan lacked interim goals to ensure that Ireland achieves its zero-carbon target by 2050, the plan was a valid exercise of the government’s discretion in how to implement the Act.
Permission to file this direct appeal is a significant recognition of the importance of climate change litigation because these applications are granted only when the Supreme Court is satisfied that the case is likely to come before it in any event. And in this case, the Supreme Court noted that “[t]here is no dispute between the parties as to the science underpinning the Plan and the likely increase in greenhouse emissions over the lifetime of the Plan.” Given this, the order could suggest that the Supreme Court is willing to entertain a rights-based challenge to Ireland’s climate policy.
Finally, January saw the dismissal of an innovative rights-based case. On January 17, 2020 the Ninth Circuit reversed the lower court in the Juliana case, ruling that the plaintiffs do not have standing to pursue their claims because they cannot show that the court has the power to grant the specific remedy plaintiffs seek for the harms they have suffered. The court agreed that at least some of the plaintiffs had satisfactorily demonstrated that they suffered concrete harms caused by fossil fuel emissions exacerbated by federal subsidies and leases. But the court went on to conclude that it was questionable whether granting plaintiffs requested relief would actually remedy the harms they described and held that in any event the federal courts lack the power to grant that relief. The majority noted that “[t]here is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular,” but concluded that the court lacked the power “to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”
Although the action did not generate a decision recognizing a constitutional interest in a healthy environment, it did prompt both the majority and the dissent to acknowledge the urgency of addressing climate change. The plaintiffs are seeking en banc review.
Actions Challenging Discrete but Significant Emitters
On February 27, 2020 Britain’s Court of Appeal issued a decision halting plans to build an additional runway at London’s Heathrow Airport. The Plaintiffs argued that the Airports National Policy Statement prepared by the Secretary of State for Transport, which allowed the planned expansion, was unlawful because it failed to take into account the Paris Agreement, non-CO2 warming impacts of aviation, and the effects the new runway would have on climate change beyond 2050, as required by the Planning Act 2008. The court found that the Secretary of State’s failure to consider the Paris Agreement was sufficient to invalidate the policy, adding that “the Paris Agreement was so obviously material that it had to be taken into account.”
The ruling is among the first to halt a specific infrastructure plan because of a state’s failure to consider its obligations under the Paris Agreement. And although the ruling leaves open the possibility that a properly-considered plan in the future could still permit a new runway, the court’s decision suggests a role for the Paris Agreement in preventing fossil-fuel dependent infrastructure projects even where domestic legislation has not kept up.
ClientEarth v. Secretary of State (case documents will be uploaded when they become publically available)
On January 30, 2020 ClientEarth filed an action in the High Court challenging the UK government’s decision to approve a project converting a coal plant to natural gas. If constructed, the natural gas facility will be Europe’s largest, emitting an estimated 75% of the UK’s total power-sector emissions. According to ClientEarth, after presenting its objections in planning hearings last year, the Planning Authority recommended that the plant be blocked both because of its carbon emissions and because the investment required would lock in those emissions for years to come. Despite that recommendation the Secretary of State for Business, Energy and Industrial Strategy approved the plant, citing the relative environmental benefit of natural gas over coal for power generation. The complaint alleges the Secretary misinterpreted national policy on assessing greenhouse gas emissions, failed to properly assess the carbon-capture readiness of the facility, and either ignored the UK’s mandate to achieve net zero greenhouse gas emissions by 2050 or, at a minimum, failed to adequately explain her assessment of the net zero target.
ClientEarth’s action presents an interesting opportunity for the High Court to examine whether switching from coal to natural gas generation—emitting less, but not zero carbon dioxide—is consistent with net-zero emissions goals. In addition, the action will require the court to consider whether intermediate-term investment in carbon-emitting projects can be consistent with an eventual goal of net-zero emissions.
Finally, the U.S. Supreme Court may weigh in on states’ right to block a project due to climate concerns. On January 21, 2020, Montana and Wyoming asked the Supreme Court to take up a complaint alleging that Washington State violated the Commerce Clause and Foreign Commerce Clause by blocking development of a port. The port would have allowed Powder River Basin coal mined in Montana and Wyoming to be exported to foreign markets. Montana and Wyoming cite statements from Washington officials indicating that the state’s opposition was premised on its concern over the emissions that burning that coal would generate, and describe a lengthy environmental review process culminating in Washington’s decision to kill the project pursuant to its substantive authority under its State Environmental Protection Act.
The action is the first instance of one state directly suing another over climate change mitigation policies, and in particular one restricting infrastructure development that would foster further greenhouse gas emissions. The case is premised on constitutional provisions without an explicit environmental purpose, but if the Supreme Court takes up the case it will have an opportunity to signal its views on fossil fuel infrastructure bans and the role of governments in taking responsibility for global impacts of their policies.
New Theories to Attack Private Companies
On January 28, 2020, French organizations Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires along with more than a dozen French local governments filed a complaint in the Nanterre District Court against oil major Total. The complaint relies primarily on the 2017 French Law of Vigilance, which requires a company to produce a “plan of vigilance“ that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment, and public health that could result directly or indirectly from the operations of the company and of the companies it controls. The plaintiffs seek a court order forcing Total to issue a new vigilance plan that analyzes the risks related to global warming beyond 1.5° Celsius and Total’s contributions to those risks, and that aligns its activities with a greenhouse gas emissions reduction pathway compatible with limiting warming to 1.5° Celsius. According to the complaint, Total is responsible for approximately 1% of global greenhouse gas emissions.
The case will test the bounds of the Law of Vigilance. Notably, the first lawsuit filed under the new legislation—also against Total—was recently dismissed. In Friends of the Earth et al. v. Total, a group of nongovernmental organizations sued the oil major, alleging that Total violated the Law of Vigilance by inadequately assessing the human rights and environment impacts of an oil project in Uganda and Tanzania, including by failing to account for life cycle emissions. According to news reports, on January 30, 2020 the Nanterre High Court of Justice concluded that it was not competent to hear the case, which must, instead, be brought before a commercial court.
On March 6, 2020 the High Court of New Zealand in Auckland allowed a novel tort-based climate change claim to proceed. Plaintiff Michael John Smith filed suit against several private operators of major greenhouse-gas emitting facilities, including a dairy farm, a power station and an oil refinery. Smith sought to hold the defendants liable for public nuisance, negligence, and breach of a duty cognizable at law to cease contributing to climate change. The court dismissed the first two claims, but not the third. While cautioning that the plaintiff will need to clear “significant hurdles“ in establishing such a novel duty, the court was ultimately “reluctant to conclude that the recognition of a new tortious duty which makes corporates responsible to the public for their emissions, is untenable.” The court reasoned that tort law could evolve; for example, “the special damage rule in public nuisance could be modified; it may be that climate change science will lead to an increased ability to model the possible effects of emissions. These are issues which can only properly be explored at trial.”
Summaries and available case documents for these cases and more than a thousand others are available in the Sabin Center for Climate Change Law’s searchable Climate Change Litigation Databases.