By Devinder S. Hans
In 2005, a petition to the Inter-American Commission on Human Rights (IACHR) marked both the novel use of human rights framework to address climate change as well as the start of a broader wave of climate change litigation. Quixotically, Inuit from Canada and the United States sought to require the U.S. to limit greenhouse gas emissions to protect their fundamental human rights, including their right to culture, property, health, life, and residence. The IACHR declined to address the petition,
but nevertheless held a hearing to discuss the claims.
As of June 2020, 1,596 cases involving climate change have been filed in 39 countries and eight regional and international venues. The vast majority of these cases have been in the United States (1,213), followed by Australia (97), United Kingdom (58), and European Union (55). Plaintiffs commonly include governmental entities and private citizens. However, corporations have also looked to the courts to challenge regulatory processes addressing carbon emissions and climate change mitigation, as well as to block the development, application, and enforcement of legislation. Defendants generally are oil companies, energy producers, and government agencies. Issues of justiciability (standing and ripeness) and separation of powers have made initiating climate litigation a challenge. Establishing a causal connection between the defendant’s actions and plaintiff’s injury has also been a major hurdle where liability is based in tort, nuisance, and negligence.
Since 2005, human rights-based claims similar to the Inuit petition have gained more prominence. Although not including several prominent nations (e.g., the U.S. and China), 177 countries recognize a right to a clean or healthy environment through their constitutions, environmental legislation, court decisions, or ratification of an international agreement. In 2018, Colombian youth prevailed in their claim that deforestation and rising temperatures threatened their constitutional rights to a healthy environment, life, health, food, and water. The Supreme Court of Justice of Colombia also ruled that the Colombian Amazon forest has legal personhood and that the Colombian government had a resulting duty to protect it. In December 2019, the Supreme Court of the Netherlands ruled that the state had a duty to protect its citizens from climate change under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). However, in May 2020, the Swiss Supreme Court held that plaintiffs lacked standing to bring their claim under the ECHR because the Paris Climate Agreement’s long-term temperature goal has not yet been exceeded.
The greatest difficulty with meaningful climate litigation in the U.S. is showing the appropriateness of the courts as the mechanism to address the challenge. In dismissing a lawsuit earlier this year, the Ninth Circuit stated: “We reluctantly conclude . . . that the plaintiffs’ case must be made to the political branches or to the electorate at large . . . That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”
A study published earlier this year evaluated climate models from 1970 to 2007 and concluded that 10 accurately predicted increasing global temperatures and seven older models were off by at most 0.1°C per decade. Although it is impossible to predict litigation trends with such accuracy, it is safe to say that litigation, both attempting to compel and thwart action to address climate change, will similarly continue to increase.
Devinder S. Hans is an attorney at law.