Update On The International Efforts To Save The Planet Through Climate Litigation

Reposted from the MANHATTAN CONTRARIAN

August 29, 2021/ Francis Menton

Having had a long career in the litigation business, I have a well-developed appreciation for the limits on what can be accomplished through lawsuits. Among litigators, the line “Let’s sue the bastards” is always good for a laugh, in rueful recognition of the enormous amounts of effort that can be expended for little, or even negative, results.

But the green environmental movement appears to have both near infinite funding and legions of adherents filled with crazed religious zeal. When somebody in this crowd blurts out “Let’s sue the bastards,” the funding immediately emerges, and ideologue lawyers line up to compete for the gig.

So somehow these guys got the idea of suing national governments on the theory that “fundamental human rights” are threatened by climate change. Would that allegation be enough to get one or a few judges to order the judicial takeover of entire national economies to force the lowering of CO2 emissions? Perhaps that seems to you like the kind of question that is quintessentially outside the competence of the judiciary. If so, then perhaps you don’t understand how far off the ideological cliff much of the judiciary has gone, both here and in Europe. Fortunately for us, there remains considerably more sanity on this issue here in the U.S. than over in Europe.

Herewith an update on litigation on this subject, both here and in Europe.

United States

The most important of these cases in the United States is called Kelsey Cascadia Rose Juliana v. United States, et al. In 2015 Ms. Juliana and twenty some other plaintiffs, mostly individuals who were then adolescents, sued the federal government seeking an injunction to order the end of the use of fossil fuels in the United States. The plaintiffs claimed that the use of fossil fuels violated their rights under the Due Process clause of the Fifth Amendment and the Equal Protection clause of the Fourteenth Amendment. I first covered the case in this post in December 2017, when the then-new Trump administration was seeking to get the Ninth Circuit to issue a mandamus order to get the Oregon District Court to dismiss the case. That attempt did not succeed.

However, two plus years later, in January 2020, the case reached the Ninth Circuit again, this time on a certified interlocutory appeal from the District Court’s denial of a summary judgment motion made by the government. As I reported in this post on January 18, 2020, a three judge panel of the Ninth Circuit, consisting entirely of Obama appointees, ordered the case dismissed, basically on the (obviously correct) grounds of non-justiciability. Here is the key language from the NInth Circuit’s decision:

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.

But, as I noted in the January 2020 post, the U.S. escaped disaster on that one by the skin of our teeth. The Ninth Circuit decision was by a vote of 2-1, and the dissenting judge — Josephine Staton of the Central District of California, sitting by designation — totally bought into the idea that a single judge with this case as a vehicle could order the complete restructuring of the U.S. economy. From the dissenting judge’s opinion:

[C]arbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions created by burning fossil fuels are devastating the planet. . . . [T]he injuries experienced by plaintiffs are the first small wave in an oncoming tsunami—now visible on the horizon of the not-so-distant future—that will destroy the United States as we currently know it. . . .

Anyway, do you think that the Ninth Circuit panel’s January 2020 opinion would end the matter? Hardly. The plaintiffs initially filed a petition with the Ninth Circuit for what is called “rehearing en banc,” which would mean a hearing by all the active judges of the court (29 of them) as opposed to just the three judge panel. But the Ninth Circuit denied that petition in February 2021. At that point the plaintiffs could have sought review by the U.S. Supreme Court, but they read the tea leaves of the current Court and decided that that would not be a good bet.

So instead, they went back to the Oregon District Court — clearly a sympathetic forum — and sought leave to amend their Complaint. Trying to amend your complaint after the court of appeals has held the case non-justiiciable is, shall we say, audacious. But of course the Oregon court held a hearing, on June 25, and as of now has not issued a decision. To get an inkling of how the June 25 argument went, here are the opening lines of the argument from the lead lawyer for the plaintiffs:

Your Honor, how our nation’s children and adults speak, move, love, vote, worship, assemble, learn, and behave in our world is a function of the rights we hold and those we are denied.

Wow. Deep. And now the latest: In this case that has been ordered dismissed by the court of appeals, and as to which all further appellate review is foreclosed by the failure to make a timely petition to the Supreme Court, the word is that the plaintiffs and the government are discussing settlement. The State of Alabama, on behalf of itself and a coalition of other red states, has filed a petition to intervene to contest what they view as an extreme risk of a collusive settlement by our current government. The most recent filing on this motion was on July 20. According to that filing, the plaintiffs have confirmed that, through the settlement negotiations, they seek “a fundamental transformation of this country’s energy system.”

I find it hard to believe that a collusive settlement “transforming the country’s energy system,” after the case had been lost and all chance of appeal foreclosed, could possibly stand. On the other hand, these people will try anything.

Europe

In 2015 an environmental group called Urgenda, together with some 900 Dutch citizens, brought a lawsuit in the national courts of the Netherlands, which case bears great resemblance to the Juliana case in the United States. The original papers in the case appear to be all in the Dutch language, but there is an English language summary appearing at the website ClimateCaseChart.com. The defendant in the case is the government of the Netherlands. According to the summary, the plaintiffs demanded that the government of the Netherlands “do more to prevent global climate change.”

The Urgenda case took quite a different track from the Juliana case in the U.S., in which comparison the U.S. court system comes out looking rather good. According to the summary, a trial-level court in The Hague went right ahead and issued an order compelling the Dutch state to limit GHG emissions to 25% below 1990 levels by 2020. The summary does not mention the grounds for the relief that were asserted in the Complaint, but it does list the bases for the decision cited by the trial court, which included the following:

The court concluded that the state has a duty to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring.” In reaching this conclusion, the court cited (without directly applying) Article 21 of the Dutch Constitution; EU emissions reduction targets; principles under the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of hazardous negligence; the principle of fairness, the precautionary principle, and the sustainability principle embodied in the UN Framework Convention on Climate Change; and the principle of a high protection level, the precautionary principle, and the prevention principle embodied in the European climate policy.

The Dutch government promptly took an appeal to The Hague Court of Appeal, which affirmed the decision in 2018. Here, from the Climate Case Chart summary, are the grounds cited by the Court of Appeals:

The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change.

The Dutch government took another appeal to their Supreme Court in 2019, but that court again affirmed on December 20, 2019.

Unfortunately, at that point, the Netherlands was nowhere near approaching the goal of a 25% reduction in GHG emissions from 1990 levels; indeed, according to this chart at Statista.com, CO2 emissions in the Netherlands were actually higher in 2019 than in 1990 (191.9 million metric tons in 1990 and 194 million metric tons in 2019). Dutch CO2 emissions proceeded to fall to 175.8 million metric tons in 2020 — but that was undoubtedly mostly as a result of the pandemic, and still only about an 8% reduction from the 1990 level. Rebound of CO2 emissions in 2021 to approximately 2019 levels would be a good bet.

So what are the Netherlands courts going to do now? Excellent question. They’ve gotten themselves into a box from which there isn’t any very good way out. They seem to have next to no concern with potential loss of legitimacy from usurping the proper role of the legislative branch, or from the impossibility of the court’s enforcing its decree.

But needless to say, the success of the Urgenda plaintiffs has inspired the next and far more ambitious round of this litigation. In December 2020 a group of six young Portuguese citizens, aged 8 to 21, filed a new case, under the name Duarte, before the European Court of Human Rights. This time the defendants are some 33 national governments — the entire 27 member European Union, plus Norway, the United Kingdom, Switzerland, Russia, Turkey, and Ukraine. The demand of the Complaint is that the defendants “take all necessary steps to limit the global temperature increase to 1.5 °C.” The theory is that such steps are necessary to protect the plaintiffs’ “right to life,” which is guaranteed under the European Convention on Human Rights.

A Dutch-based climate skeptic group called CLINTEL (short for Climate Intelligence) posted a report on the Duarte case at the Watts Up With That website on August 27. The Watts Up With That post contains links to further information from CLINTEL about the case, including an extensive background article here. The headline of that article describes the case as “putting democracy under judicial guardianship.”

The post also notes that CLINTEL has been denied leave to intervene in the case, even though some eight environmental and “human rights” groups have been granted permission to intervene. I guess you can see from that where this is going.

As of now, the Duarte case is just getting off the ground. But I would not expect the judges of the ECHR to show any restraint in the sweeping orders they are likely to issue.

Read the full article here.