By Kaitlin Sullivan
A small but growing number of human rights-based climate cases have already proved that this legal approach is justified and can yield positive results, concludes a new paper analyzing those cases and their legal potential worldwide.
The report, The Human Right to a Clean and Healthy Environment in Climate Change Litigation, was published recently by Samvel Varvastian, a legal researcher at Cardiff University, who delved into issues raised in cases filed in Columbia, the Netherlands, Pakistan, Switzerland and the United States. It concluded that while several of the cases are ongoing and some unsuccessful, they already point to progress in pushing courts to consider the human rights implications of climate change.
“A very powerful strand of judicial logic runs through all of these cases,” said Mary Christina Wood, an environmental law professor at the University of Oregon whose work has influenced the youth-led constitutional case, Juliana vs. United States. “Even though the constitutions of each country are different, judges around the world are announcing a human rights imperative that the climate system supports human survival and therefore the government must protect the climate system.”
The case in the Netherlands, Urgenda v. The State of the Netherlands, not only ruled in favor of plaintiffs who demanded the country reduce emissions to protect its citizens, the government lost an appeal to the Hague Court of Appeals. In Columbia, Supreme Court of Justice overruled a lower court in 2018 and gave the Colombian government four months to develop a plan to reduce deforestation in the Amazon, ruling in favor of 25 young people who claimed the right to a stable climate.
“There are already clear signals of liability but it’s hard to predict whether a single case in one jurisdiction can affect an entire community, but if we get more and more calls to recognize this right and to fulfil it, then it’s highly likely that it would make a difference,” said Varvastian.
Climate models have shown that rising sea levels, extreme heat, and increased frequency of extreme weather driven by climate change will make certain cities––and even entire countries such as the Maldives––uninhabitable, and will impact food and water supply in the coming decades; while issues such as drought and wildfires and heat waves will impact others far from the coasts.
Every government’s duty is to protect its citizens from harm, Varvastian said, but they often fall short. When they do, the legal system allows citizens to demand their right to protection, whether it’s asking courts to require new legislation, or challenging existing legislation that is not ambitious enough to ensure a healthy environment for future generations.
“One of the valuable aspects of human rights is that they set out certain basic protections that we think are necessary for human dignity, equality and freedom,” said John Knox, an environmental law professor at Wake Forest School of Law and former special rapporteur for Human Rights at the UN. “And so while the challenges may change and evolve, the need to protect people’s basic human rights should remain a constant. The courts need to be able to respond to the new challenges by applying the law in new ways.”
A United Nations report in 2014 advocated for rights-based claims related to climate change and confirmed that human-driven climate change “directly and indirectly threatens the full and effective enjoyment of a range of human rights by people throughout the world, including the right to life, water and sanitation, food, health, housing, self-determination, culture and development.”
The following year, a group of legal experts introduced the Oslo Principles on Global Climate Change Obligations, which offered interpretations of international human rights law as it relates to climate change. The principles are not binding and individual courts may interpret the laws as they see fit.
“It all looks fine on paper but when it comes to compliance, it seems there is this significant gap that governments still do not fill after the legislation is introduced,” said Varvastian. “It doesn’t go far enough, or have enough rigor, to address the mitigation measures to curb greenhouse gas emissions.”
For example, despite Columbia’s commitment to reducing deforestation, the practice jumped in its Amazonian region by 44 percent between 2015 and 2016. That led to the youth-led case calling for the government to live up to its commitment. Wood has studied the commonalities between cases like Colombia’s as well as Juliana vs. United States and Urgenda. Juliana was headed to trial in U.S. District Court in Oregon when a series of last-ditch appeals by the U.S. government succeeded in stalling the case. The Ninth Circuit Court of Appeals agreed to hear a rare pre-trial appeal that is awaiting a hearing on June 4. But it has succeeded in drawing the first legal recognition in the U.S. of a right to a healthy climate when federal Judge Ann Aiken initially sent the case to trial.
“Moving from the past to the present we’ve seen a very rapid transition in the framing of these climate cases. They used to be about polar bears and melting ice caps and now they’re about human beings and the continuation of human civilization,” Wood said.
Another common thread running through global climate lawsuits is the strategy used by the defendants: government lawyers have consistently argued that climate change is a political question and courts should have no role. The rights-based cases create a role for the courts that is different from the prior cases.
“Not only that the government has the authority, but the obligation to enforce fundamental rights of citizens,” Wood said. “That is what brings these cases out of the canyons that their predecessors created. The older climate cases were often brought using statutes where the agencies had all the control. These new ones are non-statutory cases that enforce fundamental human rights, so they call upon the courts to rise to their constitutional role, which has always been to enforce the fundamental rights of citizens. When you get in the realm of fundamental rights, this ‘political question’ defense has no traction.”
Plaintiffs are taking different approaches outside of traditional lawsuits as well. Climate activists successfully convinced the Philippines Human Rights Commission to investigate the contributions to climate change by 47 cement, coal, oil and gas companies and whether they have violated Filipinos’ basic rights to life, water, food, sanitation, adequate housing and self-determination.
“More countries now are actually seeing litigation that implements these human rights in concrete ways––not everyone is moving in lock step but overall we are seeing a global upward trend in the use of constitutional human rights to try to promote environmental protection,” Knox said. “This kind of litigation is going to be more and more important in the coming years and the effects of climate change become more clear.”
Varvastian said litigation should not be viewed as a silver bullet in the fight against climate change, but it is one tool that could move the needle in the right direction. “The right to a healthy environment is very much a novel concept and is open to interpretations and distilled by the courts, but the essence is that we have a right,” said Varvastian.
Wood argues judges have always been tasked with adapting the law to new situations, and that they have the tools to do it again.
“Throughout history there have been extraordinary times when judges have been called upon to apply logic to unprecedented cases, and that’s really what we’re talking about,” said Woods. “What they’re doing is not extraordinary as a jurisprudential matter. They’re drawing within the lines, but this time they’re seeking to make the law relevant to the greatest crisis humanity has ever known.”