Climate Litigation: David Versus Goliath 2.0

Time is running out. This alarming sentence is probably the one which best describes the current climate situation of earth today. To reinforce the power of these words, we could rely on the last report from the International Panel on Climate Change which outlines that the impact of climate change is worse than expected.

To reduce this impact, we are waiting for our Governments to take radical measures, to protect our future by acting on the present. However our trust in our elected authorities is being tested. Especially when influential and polluting countries like the United States are leaving binding and multi-lateral climate frameworks such as the Paris Agreement.

Being pessimistic will not help to make the situation change. This is why with their remaining hope, citizens across the globe are deciding to play the role of David facing to Goliath. Who is Goliath in this situation? Their own governments.

This is what we call climate litigation: in other words, when concerned citizens sue national governments over the effects of climate change. According to the London School of Economics, over a thousand climate trials have already been conducted. These cases are based on different arguments: mostly the defense of human rights but also the necessary reduction of gas emissions, the protection of biodiversity, public trust, etc.

The first successful ‘Davids’ were the Dutch. Indeed, in 2015, the NGO Urgenda with the support of 886 citizens accused the Dutch government of passivity regarding the increase of pollution. The District Court of The Hague ruled the government had to cut its gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). Unsatisfied with this decision, the government appealed it.

Yet, Urgenda finally obtained the verdict of the Court of Appeal in October 2018 which confirmed the first decision. Goliath lost, which emphasizes a victory for the climate. It is notably a ruling based on the State’s legal duty to protect the life and family life of citizens, which are rights guaranteed by the European Convention of Human Rights.

This action opened the way to many others in Uganda, Pakistan, Colombia or Great-Britain… Currently, every continent know similar trials, highly inspired by Urgenda’s claims.

Davids are sometimes daring to fight some Goliaths even more powerful than one single government. A group of ten European families indeed filed an action against the European General Court. It is the first time that a strong authority like European Union is involved in climate litigation. The request was received but the trial has still not taken place.

Similarly, a group of schoolchildren in Portugal, influenced by the deadliest fires during the summer, sued forty-seven European countries. Their action is based on the idea that the impassivity of these countries is nothing less than a threat to their right to life.

This last example also illustrates another fact noticeable in many of these judicial actions, another characteristic common to many Davids : they are often undertaken by young people. For instance, the current most famous American case dealing with climate issues is Juliana vs. US. The age of the plaintiffs ? From eleven to twenty-two.

They accuse, with the help of the NGO Our Children’s Trust, their Federal Government of violating nothing less than their constitutional rights to life, liberty and property. Embarrassing for the authorities, this trial was regularly reported since 2015. But finally on the 3rd of November 2018, the Supreme Court allowed the teenagers to proceed. The world eagerly awaits further developments.

Another striking example is the petition filed by Ridhima Pandey, in India, when she was only nine years old but already heavily arguing that her Government fail to tackle climate change. This really show that youth has understood that their future is to built now, and that we have no chance to be achieve a sustainably future if nobody is reacting.

But what is the impact of these trials? Defining the precise impact of these decisions remains a hard task for the moment. This complexity arises for two main reasons. Firstly, this phenomenon is quite recent and many trials are still pending or appealed. We then do not have the distance required to measure its weight.

Secondly, victories remain rare. Norway is a good illustration of these statements. Despite the support of the world-renowned NGO Greenpeace and despite solid legal arguments like the violation of Paris Agreement and of the Norwegian Constitution, Goliath won this time. In this 2017 trial, the opening up of new areas in the Arctic to oil drilling was involved. Some believe that the plaintiffs were unsuccessfully arguing that their government violated their right to a healthy and safe environment for future generations granted by their Constitution.

However, we could remain optimistic and keep the focus on the fact that climate litigation has undoubtedly begun to be credible. Judges do increasingly develop a solid experience in climate issues, which are simultaneously increasing. From a legal perspective, more environmentally focused law is also emerging and consolidating through these trials.

New laws have consequently been passed after the Paris agreement, which reinforces the obligation of States to face up to their responsibilities. Many Constitutions also contain the idea of a right to a safe environment. If a trial based on this constitutional right were won, it would definitely open the way to many others. Further, some lawyers are considering the possibility to create the crime of ecocide, which was invented by the Swedish former Prime Minister Olof Palme but just now taken seriously. They even think about classifying this ecocide as a crime against peace like crimes against humanity for example. More generally, an awareness is starting to emerge and none continent is left out of this citizen mobilisation.

Adele Dumas