When a Dutch sustainability organization and almost 900 Dutch residents sued their government over its climate targets and won, it made global headlines. A glimmer of hope appeared: was it possible for courts to break the climate governance gridlock? Or was this simply an anomalous case reserved for the progressive pastures of the Netherlands?
Looking back it’s clear: that ruling marked the beginning of a new era. An era of heightened accountability, in which governments that fail to protect the rights of their people are made to answer before courts. Over 80 cases have now been filed against governments in all corners of the world – from Pakistan, to Colombia, to South Korea and Australia. And they are winning: numerous courts have recognized that climate action isn’t a choice, but a legal duty.
Governments must bear the consequences
Imagine you drove recklessly down the road, putting yourself and others at risk. If you caused an accident, you would be held liable: after all, you powered ahead knowing the potential consequences. Governments – particularly those from the Global North – are doing much the same by knowingly failing to take immediate action on climate change. Like reckless drivers, they should be held to account.
That’s how the District Court saw the Dutch Government’s responsibility in the Urgenda case in 2015. The court found that, “[d]ue to the severity of the consequences of climate change and the great risk of hazardous climate change occurring, without mitigation measures”, the Dutch Government has a duty to do “its part” by further reducing its emissions to protect its people from climate harms.
The commitment of states to climate protection
Of course, the source of a government’s legal duty to take climate action depends on the legal system in which it operates. But there are some obvious factors that point to its existence.
- For one, governments have long committed to prevent dangerous climate change. Three decades ago, 198 governments pledged to prevent “dangerous” climate change and protect the climate for present and future generations. Every year since, governments have reiterated this commitment. Last year, in Glasgow they agreed to adopt more ambitious climate plans this year to close the “significant” emissions gap.
- Second, governments are fully aware of the fatal consequences of dangerous climate change and the action needed to prevent more harm. Since 1990, governments have signed off numerous reports prepared by the Intergovernmental Panel on Climate Change – the world’s leading climate scientists. Its most recent report reinforced that “[a]ny further delay in concerted anticipatory global action … will miss a brief and rapidly closing window of opportunity to secure a liveable and sustainable future for all” – a reality experienced by millions of people this year with devastating floods, vicious hurricanes and crippling heat.
- All this makes the third factor so alarming: despite promising to address the climate crisis (even as the crisis unfolds), governments are failing to act. Last month, only 23 countries met their deadline to submit more ambitious climate plans this year. Worse still, the UN’s recent evaluation of climate targets shows that even if governments meet their climate promises (which they’re not on track to), emissions will increase by 2030 against 2019 levels – when they in fact need to decrease by 43 percent in that time to achieve the 1.5C limit that governments agreed is necessary to protect our futures.
Climate lawsuits build on each other
Governments might be recklessly driving us towards an unliveable future. But the movement of climate litigation injects hope: accountability is here. What started as a single climate case against the Dutch Government has turned into a global climate litigation movement powered by affected communities, and supported by lawyers and campaigners around the world.
Current litigation trends show that governments should “anticipate the emergence of a legal duty” and act to protect their people. Each case builds on those before it, and creates footholds for future cases. Take the legal challenge by Uncle Paul and Uncle Pabai, from the Torres Strait Islands, who are suing the Australian Government in a case inspired by the Dutch Urgenda case. With sea levels rising, they risk losing everything: their language, culture, identity, Country.
Germany also tightened its climate target
The two First Nation leaders are hoping for a win, like in last year’s Neubauer case – which saw German lawmakers ordered to increase their climate targets in order to protect the younger generation’s “fundamental freedoms”. That decision prompted a swift reaction by the government with a 10 percent increase in its 2030 mitigation target.
The message ahead of COP27 is clear: countries that continue to drive us over the limits of a safe future will be served. In the lead-up to the next UN climate summit, we joined forces with lawyers and plaintiffs around the world to send a message to governments: “If you fail to raise ambition, we will continue to turn to the courts to demand accountability”. With so much on the line, there’s no time to lose.
Lucy Maxwell and Sarah Mead are lawyers specializing in international, environmental and public international law. Together they head the Climate Litigation Network.