Garvit Garg
1st Year Law student at Dharmashastra National Law University
What is Climate Change? The Truth Behind Our Changing Planet
The climate change challenge is the result of the economic success that the world has achieved. The last 70 years since the end of the Second World war can be summed up as the growth of economies the world over by more than ten times their size. Referred to as a growth in the population over the past 20 years world has lifted a billion people out of extreme poverty. The slipstream of this growth owes much to fossil fuels, which are oil, gas and coal which account for most of the energy consumption, burning these fuels however leads to the emission of gases into the atmosphere, in particular carbon dioxide which helps to control the temperature on earth. Currently the level of greenhouse gases in the atmosphere is approximately 40 percent higher than they were at the advent of the industrial revolution. In average, the global average surface temperature will have increased by at least 2 degrees Celsius relative to pre-industrial levels by the middle of the 21st century unless major changes in carbon dependence occur. There is substantial scientific evidence that human activities build up greenhouse gases into the atmosphere, changing the climate of the earth. But how extreme the future effect of these changes would be is not yet clear. Scientists have confidently predicted some trends like increased warmth and rising sea levels. The impact of climate change will depend as much on the success of human action in response to its challenges as on the degree and time scale of climate change. Infrastructure investment decisions made today will have enduring impacts on future emissions as well as resilience, where the ability of communities to recover shortly after disasters or to build more improved infrastructure and systems than those that were lost is considered. However, given uncertainties over the success of global efforts in emissions reductions, it is quite impossible to say whether adaptations in developed countries would be enough to avert the worst effects. It is totally different story in the developing world. Worst impacts in the near term are expected in the least developed countries, which are more vulnerable to the impact of climate change and have poor adaptive capacity.[1]
From Law to Action: An Introduction to Climate Litigation
Litigation has become one of the key tools for taking climate action as the world struggles with the dreadful effects of climate change. Litigation on climate change aims at persuading government, businesses, industries, and sometimes even people responsible for global warming to make future policies climate-safe.
Building on the Intergovernmental Panel on Climate Change’s Fifth Assessment Report and on solid scientific evidence, we can be more than 95 percent certain that it is human activity that causes Earth’s warming. Consistent with this, lawsuits related to climate change have recently been filed in national and international courts in the United States, the United Kingdom, and the European Union. Due to these cases where public or private law was applied to the issue of climate change, courts have emerged as a crucial courtroom for international climate change regulation debate and discussion.
In principle, there are two types of climate litigation based on the person of the defendant in climate claims[2]
Vertical climate action
It has to do with the question of whether state climate policy is adequate and raises the question of vertical climate action in terms of the relationship between private citizens and the state. They are typically filed with the administrative and constitutional courts and fall under the category of public law. The state’s obligations under international law emanating from ratified international accords, as well as its responsibility to preserve fundamental and human rights, serve as the standard of evaluation.
The Urgenda instance is the most notable illustration of effective vertical climate action.
Horizontal climate action
Horizontal initiatives by individuals regarding climate change and aimed at companies focus on the question of how much private emitters of greenhouse gases are responsible for the impacts of manmade climate change. They commonly receive judgments through civil courts and are based on private law actions, particularly in torts, to ensure one’s person, property, or health. International agreements, human rights, and constitutional rights indirectly affect businesses as well although there is no explicit imposition of duty on them.
At the Intersection of Law and Survival: A Guide to Climate Litigation and Human Rights
The human rights defenses are used in climate cases simply because people know that climate change will alter the level of enjoyment of a wide variety of human rights. The observance of particular rights such as the right to life, Health, a clean environment, and access to food and water is specifically threatened. For example, the increasing number and intensity of destructive events linked to climatic changes Put human life and health in severe danger throughout the world. Climate change impacts rights disproportionately on those who are weaker and marginalized people and communities. At the same time, response to climate change Policies can also have a negative impact on human rights. For example, renewable Projects related to energy or afforestation would imperil the rights of the indigenous and local groups.[3]
Climate Litigation and how it plays a role in moving human rights forward while reformation is being pursued on policies towards the environment using a contemporary example and case law. So far, a brief overview has been explained relating to climate change, climate Litigation, and a specific focus on human rights.
Litigation serves multiple purposes within the realm of human rights. Although only a limited number of cases have directly tackled human rights issues, many successful lawsuits can yield significant protective benefits. Certain legal actions are initiated specifically to safeguard those most at risk from the detrimental impacts of climate change. These include flood or erosion-prone coastal dwellers, marginal agricultural areas with a possibility of not being able to support the changed populations in relation to temperature and rainfall changes, and the people whose safe sources of water are increasingly likely to be shut off with new rain patterns or saltwater intrusion.[4]
In instances where law remedies are not yet established for climate claims, raising a human rights violation might bring more attention to the case. In case it does not go through, it could possibly provoke public debate through the media and civil society about the nature of the violation and it's implications. The designation of ‘human rights violation’ lends weight to the grievance. Each case typically encompasses one or more of the following elements: injuries inflicted or threatened, causes of climate change, accountability for contributing to the issue, assessment and distribution of liabilities, and avenues for redress. Media coverage of climate-related lawsuits can inform the public about pertinent issues, thereby igniting discussions on appropriate societal responses.
Now we will learn, how Climate Litigation advances human rights and policy reform through some prominent cases.
● Urgenda Foundation v. State of the Netherlands[5] (The Urgenda case)
In November 2012, Urgenda addressed a letter to the Dutch government, asserting that there was scientific evidence indicating that the European Union’s commitment to reduce emissions by 20% relative to 1990 levels was insufficient to prevent severe climate change. Consequently, the reduction targets set for the Netherlands, based on this European benchmark, were equally inadequate. Urgenda called upon the Netherlands to take more substantial action. The government’s reply to this correspondence was deemed unsatisfactory by Urgenda. As a result, in November 2013, Urgenda filed an application with the District Court of The Hague, seeking a declaration that the State was responsible for posing a significant threat of dangerous climate change through its actions. The organization contended that the state would be in violation of the law if it failed to reduce annual greenhouse gas emissions in the Netherlands by at least 25 percent, aiming for a 40 percent reduction compared to 1990 levels by the end of 2020.
The Netherlands argued that the government was dedicated to Preventing dangerous climate change and had put in relevant Policies for that reason. It further accepted that the mitigation measures currently in place would only lead to a 17% Reduction in GHGs by 2020. The State further argued that there existed no legal duty Under national or international law for the Netherlands to take measures to achieve The reduction targets claimed by Urgenda.[6]
After the judicial hearing on 15 April 2015, The District Court ruled—for the most part—for the applicants on 24 June 2015. Doubtlessly, something very special happened on 24 June 2015 in the Netherlands. The Urgenda Foundation and its application against the Netherlands seduced The District Court of The Hague to pronounce a bold decision for the environment and in favor of future generations. The judgment of the court accepts a causal link between the acts of the Netherlands and dangerous climate change and interprets the standard of due care in such a way that it corresponds with the international agreements among states and the newest scientific knowledge. This led to a court order to reduce GHG emissions by 25% by 2020.
It will enable other environmental NGOs to present such cases in the civil courts of many countries across the world.
The consequences of the Urgenda judgment were stronger than human rights alone; it was an element of environmental reform. It provided a body of jurisprudential law: that the government’s mandate includes acting proactively about the mitigation of climate change and their inaction may be brought before the law. The decision was such an outstanding environmental win because it proved that courts can compel governments to take anti-climate-change actions, even in the face of political or economic challenges to that end.[7]
The ruling further led the Dutch government to implement more policies to attain targets for the reduction of emissions set by the court. It would close coal-fired power plants, enhance energy efficiency, and increase the use of renewable energy. In this regard, the Urgenda case thus led to nationwide environmental reform not only in the Netherlands but also globally, inspiring similar lawsuits in other countries.
● Neubauer, et al. V. Germany[8]
In February 2020, a group of German youth initiated a legal challenge against Germany’s Federal Climate Protection Act (KSG) in the Federal Constitutional Court. They contended that the goal of reducing greenhouse gas emissions by 55 percent by 2030, relative to 1990 levels, did not align with Germany’s commitments under the Paris Agreement. The plaintiffs asserted that achieving a 70% reduction in emissions by 2030 was essential for limiting global warming to below 2°C. They claimed that the KSG infringed upon several fundamental rights enshrined in the Basic Law, including Article 1(1), which guarantees the right to a dignified future; Article 2(2), which protects the right to life and physical integrity; and Article 20a, which mandates the state’s duty to safeguard the environment for future generations.[9]
The youth argued that insufficient short-term emission reductions would impose disproportionate burdens on future generations, constituting a violation of fundamental rights under German law. Critics also targeted provisions that allowed Germany to trade emission allowances with other EU nations, asserting that the EU’s targets were inadequate on their own. Consequently, the plaintiffs called upon the court to declare the KSG unconstitutional and to enforce stricter emission reduction targets for Germany.
Additionally, various groups, including environmental NGOs and individuals from Bangladesh and Nepal, submitted similar appeals. On April 29, 2021, the Federal Constitutional Court ruled that certain sections of the KSG were incompatible with fundamental rights.[10] The court emphasized the government’s obligation under Article 20a to uphold climate protection, particularly in light of the principle of intergenerational justice. It determined that the KSG imposed an unreasonable burden on future generations due to the absence of sufficient goals beyond 2030.
The court stated that the Basic Law safeguards against the imposition of "excessive burdens in reducing carbon on future generations” and that no nation’s failure to address climate change could justify such burdens.
Let’s Understand the impact of climate litigation on human rights and policy reform in India through a contemporary example
● MK Ranjitsinh et al. V. Union of India[11]
Following the ruling issued by the Supreme Court of India on April 19, 2021, a writ petition was submitted to the court seeking protection for two critically endangered avian species: the Great Indian Bustard (GIB)[12] and the Lesser Florican, court directed undergrounding of overhead power transmission lines in the identified bird habitats and stipulated the composition of a committee that would determine the viability of such undergrounding. Thereafter, some ministers from the Ministry of Environment and Climate Change and The Ministry of Power and Renewable Energy approached the court to quash this order by stating that under such circumstances, there is a likely possibility of damaging India’s energy department and further creating an obligation on the country under the Paris Climate Agreement.
The Supreme Court focused on two primary considerations. The first was whether there was an intention to amend its earlier directives, and the second was how to balance wildlife conservation with India’s transition to renewable energy in the fight against climate change. The Court reviewed government steps taken for the protection of the Great Indian Bustard, including the “Habitat Improvement and Conservation Breeding” project launched in 2016. The requirements of renewable energy to advance social equity and inclusive development were pointed out.
The Court referred to constitutional obligations pursuant to Articles 48A and 51A, which it said invokes Articles 21 and 14[13] which guarantees rights to life and equal protection of the law. This makes the right to a healthy environment and climate change protection as concerns under these fundamental rights. Lastly, the Court stressed the state’s obligation to integrate human rights and climate action with environmental conservation.
Are there any adverse effects of climate litigation?
There are some negative effects of climate litigation in enforcing environmental responsibility. It puts both governments and corporations under fiscal stress, particularly in the energy sector because legal fees soak up money that could otherwise have been sunk into either research and development or sustainability[14]. For governments, this cost is passed onto taxpayers. In fact, such litigation often leads to stricter regulations, which directly or indirectly affect the expansion of energy, transportation, and manufacturing industries, in turn affecting consumers through financial measures. It may also make pro-environmental measures less likely, further aggravating poor environmental outcomes through long-drawn and complicated litigation procedures. Such policies could become overly strong, hence leading to the loss of jobs, weakening global competitiveness, and creating controversies from differing parties who seek resolutions through lawsuits over the issue of climate change.[15]
Conclusion
It can be concluded that climate litigation serves as a crucial mechanism for promoting human rights and environmental reform. In instances where policy initiatives are ineffective or inadequately enforced, such litigation compels action from both governments and corporations.[16] Thus, in my opinion, cases such as The Urgenda have established landmark precedents that not only enforce environmental laws but also facilitate policy transformation. Consequently, these litigations have the potential to create precedents that influence future governance and international obligations, given their capacity to challenge insufficient policies and advocate for more robust regulations. Furthermore, they empower communities, particularly marginalized groups disproportionately impacted by climate change, to pursue justice and assert their rights.
In the context of India, the case of MK Ranjitsinh et al. v. Union of India illustrates this principle, as the Court linked duties to Articles 21 and 14 of the Indian Constitution. The ruling affirmed that the right to a clean environment and protection against the adverse effects of climate change is derived from Article 21, which guarantees the right to life and personal liberty, and Article 14, which ensures equality before the law.
As climate risks continue to escalate, likely that, judiciary’s role in shaping environmental policy and safeguarding human rights will expand. Thus, climate litigation occupies a pivotal position at the intersection of law, policy, and activism, fostering transformative changes that hold key stakeholders accountable and advance a more sustainable and equitable future for all.
[1] James Dobbins, Richard H. Solomon, Michael S. Chase, Ryan Henry, FStephen Larrabee, Robert J. Lempert, Andrew M. Liepman, Jeffrey Martini, David Ochmanek and Howard J. Shatz, In Choices for America in a Turbulent World: Strategic Rethink 69,70-71(2015).
[2] Weller, MP., Tran, ML. Climate Litigation against companies. Clim Action 1, 14 (2022).
[3] SDG KNOWLEDGE HUB,https://sdg.iisd.org/commentary/guest-articles/integrating-human-rights-and-science-perspectives-in-climate-responses/(last visited Oct. 13,2024).
[4] Marilyn Averill, Linking Climate Litigation and Human Rights, RECIEL 18 (2)139,140-143(2009).
[5] Urgenda v The Netherlands, The Hague District Court (24 June 2015) ECLI:NL:RBDHA:2015:7196.
[6] Urgenda, https://www.urgenda.nl/en/themas/climate-case/ (last visited Oct. 13, 2024)
[7] Oslo principles, www.Osloprinciples.com (last visited Oct. 12, 2024).
[8] Neubauer et al. V Germany, (2020) Case No. BvR 2656/18/1, BvR 78/20/1, BvR 96/20/1, BvR 288/20.
[9] Escr-net, https://www.escr-net.org/caselaw/2023/neubauer-et-al-v-germany/ (last visited Oct. 14,2024).
[10] Climate Change Litigation Databases, https://climatecasechart.com (last visited Oct. 13, 2024)
[11] M.K. Ranjitsinh & Ors. V. Union of India & Ors., (2019) 15 SCC 429.
[12] Conservation India, https://www.conservationindia.org/campaigns/gib2018( last visited Oct.14,2024)
[13] Bar and bench,https://www.barandbench.com/columns/mk-ranjitsinh-v-union-of-india-the-supreme-courts-very-own-sophies-choice-moment (last visited Oct.14,2024)
[14] Charlotte Renglet, The Decision of the Irish Supreme Court in Friends of the Irish Environment v Ireland: A Significant Step Towards Government Accountability for Climate Change?, 14 Lexxion Verlagsgesellschaft mbH 163, 166-168(2020).
[15] Jacqueline Peel, Issues in Climate Change Litigation, 5 Lexxion Verlagsgesellschaft mbH 15, 17-19(2011).
[16] Charlotte Renglet, The Decision of the Irish Supreme Court in Friends of the Irish Environment v Ireland: A Significant Step Towards Government Accountability for Climate Change?, 14 Lexxion Verlagsgesellschaft mbH 163, 169(2020).
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