May 01, 2016

Climate litigation scores successes in the Netherlands and Pakistan

Michael B. Gerrard

Most U.S. climate change litigation falls into one of two categories. The vast majority of cases—which receive the bulk of the attention—are based on the Clean Air Act and other statutes. These include Massachusetts v. Environmental Protection Agency (2007) and the current litigation over the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan. The second category, and the focus of this article, comprises cases based on common law and the Constitution.

A flurry of these cases arose a decade ago; most sought money damages or injunctive relief against fossil fuel companies and electric utilities due to their greenhouse gas (GHG) emissions. All were based chiefly on the public nuisance doctrine. That line of litigation was largely shut down by the Supreme Court’s ruling in American Electric Power v. Connecticut (2011). There, the Court held that the Clean Air Act’s grant of authority to EPA to regulate GHGs displaces any federal common law of nuisance as to such emissions. Though that case concerned injunctive relief, the displacement doctrine was extended to money damages cases in the Ninth Circuit’s decision in Native Village of Kivalina v. Exxon Mobil Corporation (9th Cir. 2012). While the Supreme Court in American Electric Power left the door slightly ajar for state common law nuisance cases, no one has brought such a suit in the nearly five years since that decision.

Several climate cases have been brought (mostly against states) under the public trust doctrine, which places on the states a duty in trust to protect public resources. Despite some interim victories, however, so far all the cases that have reached judgment have been dismissed. One case currently pending in the U.S. District Court in Oregon seeks to establish a federal constitutional right to a clean environment and the idea of the existence of such rights under state constitutions has gained traction in Pennsylvania.

All in all, though, no plaintiff has won a common law or constitutional case in the United States seeking damages or injunctive relief arising from climate change. In 2015, however, two similar suits were successfully prosecuted in other countries. That, in turn, has inspired several others. These cases may mark the start of a trend.

Urgenda v. Netherlands

The Urgenda Foundation and 886 Dutch citizens sued the Kingdom of the Netherlands in December 2013 in the district court in The Hague. While the European Union has established a legal framework aiming at achieving a 20 percent reduction in GHGs by 2020, and the Dutch state had pledged a 17 percent reduction, the suit sought an order that the government take measures to reduce emissions in the Netherlands to at least 25 percent below 1990 levels by 2020. On June 24, 2015, the court granted the requested order, concluding that “[d]ue to the severity of the consequences of climate change and the great risk of hazardous climate change occurring—without mitigating measures … the State has a duty of care to take mitigation measures.”

In determining what the duty of care requires, the court cited (without directly applying) Article 21 of the Dutch Constitution (“It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment”); the emissions reduction targets of the European Union; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; and the principles of fairness, precaution, and sustainability embodied in the United Nations Framework Convention on Climate Change.

After a detailed examination of various scientific reports, the court concluded that a 25 percent reduction was needed to meet the country’s fair contribution toward the UN’s temperature goal. The court left it to the government to select the measures that would achieve this reduction.

This was the first decision by any court in the world ordering countries to limit GHGs emissions for reasons other than statutory mandates. It was also the first attempt outside the United States to bring these theories before a court in the climate change context.

Some commentators argue that the Dutch court exceeded its authority in ruling on the adequacy of European Union commitments. The government is presently appealing the decision.

Leghari v. Federation of Pakistan

Ashgar Leghari, a farmer from Pakistan, sued the national government for failure to carry out the 2012 National Climate Policy and Framework. The Lahore High Court ruled on September 4, 2015 that “Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet's climate system . . . .  On a legal and constitutional plane this is a clarion call for the protection of fundamental rights of the citizens of Pakistan.”

The court cited the right to life and the right to human dignity, “constitutional principles of democracy, equality, social, economic and political justice..., the international principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity, and public trust doctrine.” The court found that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens.”

The court then created a Climate Change Commission and appointed 21 members from key ministries, nongovernmental organizations, and universities to help ensure implementation of the climate laws.

Pending cases

In addition to these two victories, several suits were recently brought or are in the works. Suits similar to Urgenda have been brought in Belgium and New Zealand. Both are in their early stages. A Peruvian farmer has sued RWE, a large German electric power company, in a trial court in Germany seeking money damages for RWE’s alleged share of the costs of adapting to glacial melt. Greenpeace has announced it will sue the government of Norway for allowing offshore oil drilling, arguing that such drilling is a violation of the Norwegian Constitution due to its climate impacts. Greenpeace has also petitioned the Philippines Human Rights Commission for a declaration that the world’s largest oil, gas, and coal companies have violated human rights by contributing to climate change.

Most nations recognize the right to a healthy environment in their constitutions or statutes, and more of these kinds of claims can be expected as climate change becomes more severe. Whether they might gain a footing in the United States is unclear.

Michael B. Gerrard

Michael B. Gerrard is a professor and director of the Sabin Center for Climate Change Law at Columbia Law School and chair of the Faculty of Columbia’s Earth Institute.