While governments lag in climate action, recent pro-climate court rulings highlight the promise of litigation against polluters and their allies—but experts warn that effective policy must follow legal victories to make a real difference.
Climate litigation took an important step forward on the global stage in August, when the United Nations Committee on the Rights of the Child released a document stating that all countries have a legal obligation to protect children from environmental degradation and to allow underage citizens to seek legal recourse.
“Children have the right to a clean, healthy, and sustainable environment,” the committee wrote. “This right is implicit in the convention and directly linked to, in particular, the rights to life, survival, and development.”
The opinion is not legally binding and cannot be enforced. But since it is based on a widely ratified treaty, upheld by every country except the United States, national courts are more likely to rely on the committee’s interpretations in their rulings, reports the New York Times.
Climate litigation at the national level has been making gains since 2015, when the Hague District Court in the Netherlands issued a landmark ruling—the first in the world to establish that a government has a legal duty to protect its citizens from dangerous climate change. Though climate advocates have since seen mixed results in court, there have been some notable victories.
“Litigation has a key role to play in light of this lack of ambition from states and other stakeholders,” Maria Antonia Tigre, director of global climate litigation at Columbia University’s Sabin Center for Climate Change Law, told DeSmog. While it’s not a silver bullet solution, litigation is certainly “part of the answer.”
This past summer, a Montana state court ruled in favour of 16 youth plaintiffs who claimed the state’s environmental decision-making violated its constitution’s fundamental “right to a clean and healthful environment.” Though the state quickly announced that it would appeal the decision, it was hailed as a major victory for the plaintiffs.
“I think this is the strongest decision on climate change ever issued by any court,” said Sabin Center founder Michael Gerrard, who was not involved in the case.
Similar cases are under way in Canada, including another one spearheaded by young people. In this case, the issue is the Ontario government’s 2018 decision to significantly weaken the province’s 2030 climate target, which could enable dangerous levels of greenhouse gas emissions over the next decade.
“In particular, they will argue that in setting its new target, the province has not merely failed to act—it has taken clear steps that increase emissions and further endanger young Ontarians’ health and lives,” reports Ecojustice. The youth have launched an appeal after a judge dismissed their case in April, while scorching the province’s climate plan.
But even as climate advocates win cases, barriers remain. When fossil fuel companies engage in lengthy court battles, they can draw on vastly greater resources than smaller climate advocacy groups. And governments continue to stall gains by greenlighting oil and gas operations and expansions or slow-walking climate solutions. In Germany, where the country’s highest constitutional court held that government decisions that lock in future harms and place a disproportionate burden on future generations are unconstitutional, the government is still struggling to enact a sufficiently ambitious emissions plan.
In Colombia, the government has failed to halt deforestation, even after being ordered to do so by the country’s highest court.
Those challenges show that climate lawsuits need connections with broader social movements and advocacy campaigns to be successful, said Lucy Maxwell, co-director of the Climate Litigation Network.
“While cases can take several years to be decided, many cases have led to widespread public mobilization on the urgency of climate action,” she told DeSmog.
And rulings need to be bolstered by sufficient political support to “make a real difference on the ground,” said Jason MacLean, adjunct professor for environment and sustainability at the University of Saskatchewan. It is crucial to build on the momentum initiated at the court level and “take the fight to the democratic political arena.”
“Verdicts send strong messages, but democratic politics is required to turn messages into policy,” MacLean wrote in a recent post for The Conversation.