Climate change litigation and future generations

Setting the scene

Climate change litigation is much in vogue [1]. The United States Supreme Court decision in the 2007 case of Massachusetts v EPA [2] was path-breaking because it provided a basis for the courts to hear climate change litigation cases. This led to a spate of climate change litigation in many countries, particularly Australia. Litigation is having an important impact on environmental regulation, and the attitude sof the government and public to the environment[3].

What does climate change litigation mean? There is no precise definition. The term is given a general meaning to include litigation that seeks to address the problem of climate change. It may have a narrow or broad meaning[4]. In the narrow sense this means only climate change litigation that has the primary focus of harm to the environment. In the broad sense it may include collateral actions that in some way raise climate change issues. The main motivation for the litigation is considered relevant. The broad meaning includes regulatory issues that address mitigation and adaptation strategies. In 2015 it was estimated that lawsuits linked to climate change have been brought in over eighteen countries on sixcontinents[5]. Climate change litigation invariably has been unsuccessful. There are historical parallels, such as[6]in the 1960s and 70s, when litigation was begun over concerns about asbestos, mercury[7] and the causes of cancer. Human rights[8]and their extension to environmental issues is a common strategy to support action[9] aimed at considering the impact of policy making and the implications  for individual citizens[10].

Climate litigation is often an attempt to hold government or public bodies to account[11]. Accountability for policymaking inevitably raises tensions between political and democratic forms of accountability and the role of the courts. This is often centred on how the legislation is interpreted and understood. Judicial independence becomes a central issue when unelected judges are asked to review policy choices made by politicians. ClientEarth, an environmental pressure group, has undertaken cases against the UK government over air pollution and threats to the environment[12].

Litigation is not always successful. Expectations may be raised too high[13]; each country may have different outcomes and the success of one case in one country may not  mean that there is success in another. There are many judicial differences between countries and the courts are not always able to offer remedies or solutions, because of the political nature of policymaking.[14] The expertise of lawyers willing to take such cases, may limit their use. Most cases rely on public funding at a time when resources are often limited and thinly spread. Political actors may not feel that litigation is suitable and argue that such cases are political in motivation and in outcome. The public may wish to pursue such cases to support more action on the environment. In November 2020, the Irish Supreme Court quashed the Irish Government’s National Mitigation Plan because it fell short of meeting the 2050 goals under the Climate Action and Low Carbon Development Act 2005.[15]

Assessing the success or otherwise of climate change litigation is complex. Victories in court cases do not always result inchanges in policy or direction[16]. Major technological innovations such as windenergy may achieve more than litigation, but arguably the threat of litigation may speed up change and improve policy making.[17] The main worth of climate change litigation iswhether or not it sets a pathway to improve climate change regulation.

Australian Climate Change Litigation: Sharma by her litigation Sister Marie Brigid Arthur v Minister for the Environment [2021]FCA 560

Climate change litigation is commonly taken by young people in their desire to ensure a future that is not threatened by the consequences of climate change. For example, the European Court of Human Rights considered a case taken by Portuguese children and young adults against the 33 Member States of the Council of Europe claiming that these States have failed to address climate change[18]. Another case was taken by a group of female citizens from Switzerland alleging that Switzerland’s climate policies are inadequate and violate the health of women, specifically Article 2 and 8 of the European Convention on Human Rights. A further significant case arose when a group of children brought a petition before the Inter-American Commission Human Rights against Haiti alleging violation of their rights under the American Convention on Human Rights  because of a waste disposal  in their residential district and claimingthat  as climate change worsens the harmsto children through an increase in water borne diseases and environmentaldisplacement increase.[19]

The Australian Sharma case involved eight teenagers and a nun claiming that the Minister for the Environment owed a duty of care to future generations. An injunction was sought against the Minister of the Environment from approving a proposal by White haven Coal to expand the Vickery coalmine in New South Wales Australia. At first instance, Justice Mordecai Bromberg found that the Minister had a duty of care and that the duty had been breached. However, an injunction was not granted in the circumstances of the case, as the judge was not convinced that the Minister would breach her duty of care.

The case was welcomed by environmentalist as a potential seismic shift in the responsibility of the courts to Parliament and ministers through the application of a reasonable test applicable to the exercise of public power in ministerial policy making. The  application of a duty of care in environmental cases offers potential for similar cases to be taken.

However, the case was appealed to the full Bench of the Federal Court, the Minister claimed that  there was not a duty of care to all future children. The Federal Court agreed on the basis that policy matters fell within ministerial discretion and not judicial oversight. Imposing a duty of care in such cases ran contrary to the legislative framework of Australia’s national environmental laws which gave the minister a wide discretion. The court also ruled that there was not a close enough proximity in approving the coal mine project to the harm that might be done to the children.

Justice Beach examined the  existing environmental laws and concluded that there was no connection in terms of liability. A similar approach taken by Justice Michael Wheelahan, concluded that the  minister was not responsible for the control of carbon dioxide emissions and the protection of the public from personal injury caused by the effects of climate change did not fall under the relevant legislation.

The court did not reject any of the expert evidence about climate change and the dangers to the world. Although the factual material supporting the dangers of climate change was challenged on the appeal  by the Minister including the findings made by the judge at first instance, this was rejected by the Appeal court by all three appellate judges.

The Future of climate change litigation

How is the Australian’s Federal court decision best reviewed? Clearly the first instance decision had been widely welcomed by environmentalists who saw the potential for improvements in environmental protection. The Appeal Court decision is viewed as disappointing. However, the United States in contrast to Australia may lay claim to having achieved a pivotal role in influencing federal climate change regulation, particularly the Clean Air Act. The willingness of the US Supreme Court to address climate change issues may be due to legislation such as the National Environmental Policy Act (NEPA) and the Endangered Species Act.

Overall the appeal courts decision in Sharmashould be regarded as a pause rather than as a stepping- stone for the future.  On the basis of the United States experience  environmental legislation is key.  Responsibilities must be defined in such a wayas to give the judiciary an adjudicatory role. The trend for younger litigants seeking to achieve protection for the dangers of climate change for the future that deserve action and the courts have signalled that the way forward sets a political agenda for politicians to address. As with the past examples of asbestos, cancer and environmental pollution cases, climate change litigation is likely to continue, even though some cases may  result in disappointing outcomes.

[1]See: Ivano Alogna and others, Climate Change Litigation: Global Perspectives Lieden, Boston:, BrillNijhoff, 2020.

[2] Massachusetts v EPA ,549, US 497 ( 2007).

[3] Ivano Alogna and others, Climate Change Litigation: Global Perspectives Lieden, Boston:, BrillNijhoff, 2020.

[4] See: S. Adelman,” Climate Change Litigation in Africa: A Multi-Level Perspective” in Ivano Alogna and others, Climate Change Litigation: Global Perspectives Lieden, Boston:,Brill Nijhoff, 2020. Pps. 271- 93

‍[5] Jaqueline Peel and Hari Osofsky, Climate Change Litigation Cambridge: Cambridge University Press, 2015.

[6] Smith v Fonterra {2021]NZHC 419.

[7] Watanabe v Chiso Corporation( The Minamata Case). 696 Hanret Jiho 16 20^th March 1973.

[8] Marcic v Thames WaterUtilities plc [20o4] Env LR 25.

[9] Dennis v Ministry of Defence(MOD) [2003] Env LR 34, Monsanto vTilly [2000] Env LR 313. Coventry v Lawrence [2014] UKSC 13

[10] Hardy v UK App no 1965/07( ECHR) 12^th February 2012).

[11] See: R ( Friends of the Earth) v Secretary of state for Business Enterprise and Regulatory Control[2010] Env LR 11.

[12]  R (Client Earth ) v Secretary of State for the Environment [2015]UKSC 28.

[13] R ( on the application of HS2 action AllianceLtd.,) v The Secretary of State for Transport [2014] UKSC 3

[14] See: R (Plan B Earth andothers) v Prime Minister and others [2021] EWHC 3469.

[15] Friends of the Irish Environment v Ireland (2017) No 793JR , 31 ( 2020).

[16] National Grid Gas Co v Environment Agency [2007] 3 All ER877.

[17] Downs v Secretary of State for Environment, Food and Rural Affairs [2008] EWHC 2666. Hatton and others v United Kingdom  E.Ct HR Application No 36022/97 ( 8^thJuly 2003).

[18] The Portuguese Youth Case  ( 3^rd September 2020)

[19] Six Children of Cite Solei, Haiti, and Sakala Community Group for Peaceful Alternatives ( 4^th February 2021).

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