When we talk about climate litigation, we are referring to cases in which climate change and its impacts are factors underlying legal arguments and court decisions.
In recent years, the use of “litigation” has become a widespread tool around the world to call on governments to act to protect citizens from the climate crisis. Many communities and individuals have been using it so extensively that it is now considered a global movement. Most cases focus on human rights violations that are guaranteed both by national laws and by principles derived from international law such as the right to life, the right to health, the right to food and water and the right to a clean and healthy environment. To achieve these goals there may be various types of disputes, but the most popular is the one that seeks to increase the reduction of greenhouse gas emissions (GHGs) by states and that internationally promotes the rapprochement to the objectives of the UNFCCC.
There are many advantages that derive from the exploitation of the instruments provided by the judicial system, especially when judges are truly independent and, therefore, capable of influencing the laws and policies of the government. Tessa Khan of the Climate Litigation Network described the dispute as a weapon to expose the lies with which the government tries to excuse its choices that increase CO2 emissions rather than support the objectives of the Paris Agreement.
A legal case brought to the attention of politicians and the public has the advantages of demonstrating in a clear and comprehensive way the negative consequences of climate change. This is the case when the structure of the process is used, which also consists of descriptions of facts and scientific interventions by experts in the field. The second implicit advantage of having a fair process engaging families and individuals is the humanization if climate change, a problem that otherwise tends to remain distant from public concern. Many plaintiffs do not even have the hope of obtaining compensation for the damage that led them to take this path, but they become the concrete symbol of the consequences of natural disasters.
Many examples of cases, which have been presented in various European and world courts or are about to receive a verdict shortly, were brought to our attention, through the intervention of young plaintiffs, during the event “The human and climate rights of all: How does the government make responsible for the lack of climate action?” at the UN Conference on Climate Change (COP24).
Louise Fournier, Associate Consultant for Climate Justice Litigation in the Southeast Asia section of the Greenpeace Association, enthusiastically described the milestone reached with the submission of a petition to the Philippines Commission on Human Rights against the largest companies producing oil, natural gas, coal and cement. The case “Greenpeace Southeast Asia and others v. Carbon Majors” aims to show how much these corporations have contributed to global greenhouse gas emissions and all their consequences. It is the first national human rights survey to be brought to light by a group of 14 organizations with the support of Filipino farmers, fishermen, human rights activists and survivors of the 2013 Haiyan typhoon. Many of them were called to testify about the difficulties they had to face precisely because of climate change. The Commission is expected to give its opinion in 2019. A positive response would allow forcing politicians to legislate about the responsibility of large industries.
One case that touches us closely is the climate dispute that reached the German courts in October 2018, known as the German Climate Case. Three families supported by Greenpeace Germany have filed a lawsuit against the German federal government for violating the Constitution in the articles that enshrine the right to life and health, as well as property rights and professional freedom. The accusation is that the country failed to reduce greenhouse gas emissions to the extent agreed in the binding European Decision EU Effort Sharing (406/2009/EC), with aims to be completed by 2020. The government is being harshly criticised for abandoning its efforts to protect citizens too soon on the pretext of being unable to achieve the imposed target.
Climate change directly threatened the lifestyle of these households, when their organic farms located in the “Altes Land” near Hamburg, Brandenburg and on the island of Pellworm were severely affected by pests, previously unknown in those regions and extreme weather events. Lisa Goeldner, energy and climate expert at Greenpeace Germany said: “Plaintiffs do not seek compensation, but protection.
These and many other examples have recently been collected in a guide to climate justice, “People’s Guide” presented by Greenpeace right here at the COP24, where many other young people seek information to approach this kind of activism to protect their country from the wrong choices of politics. Although climate litigation can be judged to be too slow and expensive, it is considered to have a great impact in spreading knowledge on a subject that is too often ignored.
Lawyers, organizations, celebrities are actors that in many cases help to keep alive the interest in these causes and to raise the funds necessary for the “battle”. The various activists that attended the event agreed that it is not so important to win in the legal court as to win in the court of public opinion, which in turn will be able to make requests to their government.
This type of lawsuit is only a small part of the global movement that has been spreading over the last decade. Today, there are various types of litigation related to climate change that have different purposes. Some examples are causes related to climate change adaptation or the need for government intervention when natural disasters have already affected communities or causes to individuals and industries.
An alternative method to effectively change state responses to climate change emergencies could be a legislative reform. During the side event “Supporting the implementation of the Paris Agreement through litigation and legislative reform”, Martial Breton, member of CliMates, presented a revolutionary proposal. CliMates is trying to push for a reform of the French Constitution as an opportunity to make improvements in ecological principles and propose a real Ecological Constitution. Their plan is to include climate and biodiversity issues in the Preamble of the Constitution and to underline the principle of non-regression, so that politicians cannot go back on their commitments.
We young people have been inspired by these stories of activism and, as Louise Fournier pointed out, we are convinced that climate legal causes are the future of our generation. In fact, we will be “the last ones who will still have the chance to take action to avoid the worst impacts of climate change”.