Rights-based climate change litigation faces a number of challenges, including establishing a causal link between the failure of a government to act in relation to climate change and the impact on human rights (‘causation’); whether or not a court has a mandate to hear a claim about executive decisions on climate change (‘justiciability’); issues of eligibility to file a case in court (‘standing’); difficulties in dealing with complex scientific evidence; and the fact that litigation is expensive, time-consuming and – with cases brought against governments and corporations – laden with resource and power asymmetries. The first two challenges, which to date have been particularly problematic, are considered below.
Establishing a causal link
The complex and global nature of climate change can make it difficult for a court to attribute responsibility for climate change to a particular government or corporate entity alone. Further, as an individual cannot claim alone to be affected by climate change, issues of standing can also arise, particularly where the impact is claimed to be on behalf of future generations.
It has proved difficult to bring compensation claims against governments based on principles of state responsibility under international law, partly due to political hurdles and partly to the challenge of establishing a causal link given the fragmentation of responsibility between the states implicated. But litigants are increasingly overcoming challenges of causation in rights-based climate cases through the framing of the claim in terms of states’ obligations to protect against the infringement of human rights by climate change. John Knox, former UN Special Rapporteur on the issue of a safe, clean, healthy and sustainable environment, cites the 2008 ECtHR case of Budayeva and others vs Russia, which concerned mudslides in the Caucasus that killed eight people. The government did not cause the mudslide, but the court held that it nevertheless had a responsibility to take appropriate steps to safeguard the lives of those within its jurisdiction.
Advances in climate attribution – that is, robust evidence to establish a strong causal connection between historic and future greenhouse gas emissions, an increase in surface temperature and the likelihood of severe weather as a result – are helping litigants to establish greater causality in climate change cases.
Causation was raised by the Dutch government in the Urgenda case as part of its argument that Articles 2 and 8 ECHR do not contain obligations on the state to offer protection against the risks of climate change. The government argued that the risks would not be sufficiently specific, that they would be of a global nature (and hence not a responsibility that can be attributed to the Netherlands alone), and in any case that the environment was not protected under the ECHR. The court drew on the UNFCCC to find that while the problem is of a global nature, each state has a duty to do its part, as acknowledged by parties to the UNFCCC, including the Netherlands. This standard was informed by the emerging notion that in light of climate change and human rights obligations, governing countries have to contribute a ‘fair share’ to global climate mitigation, as well as the well-established ‘no harm principle’, which gives rise to an obligation on states to prevent activities within their jurisdiction that cause cross-boundary environmental damage.
In October 2021, the UN’s Committee on the Rights of the Child made groundbreaking findings on jurisdiction, victim status and causation. This high-profile case was brought by 16 youth activists, including Greta Thunberg, alleging that Argentina, Brazil, France, Germany and Turkey violated their rights under the UN Convention on the Rights of the Child by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. Drawing on a 2017 advisory opinion of the Inter-American Court of Human Rights on environmental rights, the Committee found that the Convention gives rise to extraterritorial obligations on states to address climate change, and that the collective nature of climate change does not absolve states of their individual responsibilities. On causation, the Committee found that the claimants had prima facie established a real and significant harm to justify their victim status. While the complaints were ultimately unsuccessful due to the claimants’ failure to first exhaust domestic remedies, the findings in this case represent a major step forward for future child rights cases.
The causal link between the activities of corporations such as the ‘carbon majors’ (usually referring to major industrial carbon producers in the oil, natural gas, coal and cement sectors) and climate change is also becoming more established. In the Carbon Majors Inquiry in the Philippines, the National Human Rights Commission concluded in December 2019 that 47 of the world’s biggest fossil fuel producers – including BP, Chevron, ExxonMobil, Repsol and Shell – play a clear role in human-induced climate change and can be held accountable for violating the rights of its citizens for the damage caused by global warming, where domestic law provides a basis of claim, as civil law does in the Philippines.
Some rights-based climate cases – particularly those brought in the US and Canada – have foundered on the question of justiciability. In Juliana et al. vs United States of America (2020), a rights-based challenge to government inaction on climate change in the US, the US Ninth Circuit Court of Appeal refused to order the government to formulate a comprehensive scheme to combat climate change on the basis that this would require ‘a host of complex policy decisions which for better or worse must be entrusted to the wisdom of the legislative and executive branches’.
Similarly, in Lho’imggin et al. vs Her Majesty the Queen (2020), a case filed under Section 91 of the Canadian Constitution and Sections 7 and 15 of Canada’s Charter of Rights and Freedoms, the claimants asked the Federal Court of Canada to order the Canadian government to amend each of its environmental assessment statutes that apply to high greenhouse gas-emitting projects. Addressing the issue of policy complexity, the court noted that ‘when the issue spans across various governments, involves issues of economics and foreign policy, trade, and a host of other issues, the courts must leave these decisions in the hands of others’. The Federal Court came to a similar decision in La Rose vs Her Majesty the Queen (2020).
The case of R (Plan B Earth & others) vs Secretary of State of Business (2018), a challenge to the refusal of the UK government to revise the 2050 carbon target under the UK’s Climate Change Act 2008, alleging among other things that it violated the Human Rights Act 1998 and Articles 2 and 8 ECHR, also failed on justiciability grounds. The High Court held that ‘… the executive has a wide discretion to assess the advantages and disadvantages of any particular course of action, not only domestically but as part of an evolving international discussion’.
Sometimes courts will be prepared to find a violation of international human rights law but not be prepared to order remedies in response, due to concerns about exceeding their mandate. In VZW Klimaatzaak vs Kingdom of Belgium & Others, a 2021 case challenging the inadequacy of Belgium’s response to climate change, the Brussels Court of First Instance found a violation of both domestic law and the ECHR (Articles 2 and 8) but held that it was beyond its powers to impose specific emission targets.
Other courts have taken a different approach. In the Canadian case of Mathur vs Her Majesty the Queen (2020), seven youth claimants challenged the Province of Ontario’s 2030 greenhouse gas reduction target of 30 per cent below 2005 levels, for violating their Section 7 and 15 Charter rights. The Superior Court of Ontario commented that unlike in La Rose, the court was being asked to look at the compatibility of a particular act with the Charter of Rights and Freedoms, as opposed to reviewing the whole of Canada’s climate change policy, and hence that the claim was justiciable, paving the way for a full hearing of the case.
Similarly, in Friends of the Irish Environment vs Government of Ireland (2020), the Irish Supreme Court held that the National Mitigation Plan – a main plank of the Irish government’s climate change policy – was vague and imprecise in relation to the targets specified under Ireland’s Climate Act. The claimants argued that the plan violated Ireland’s Climate Action and Low Carbon Development Act 2015, the Constitution of Ireland and obligations under the ECHR, particularly the right to life and the right to private and family life. The court refused to consider the matter as one for the executive alone to decide, holding that ‘[c]onstitutional rights and obligations and matters of policy do not fall into hermetically sealed boxes’, and that ‘the Court can and must act to vindicate such rights and uphold the Constitution’.