Posted on January 22, 2020 by John C. Dernbach
Two major climate change cases were decided in the last month—State of the Netherlands v. Urgenda (Dec. 20, 2019) and Juliana v. United States (Jan. 17, 2020). They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions.
The Urgenda decision, issued by the Supreme Court of the Netherlands, upheld lower court decisions in 2015 and 2018 requiring the national government to “reduce greenhouse gases by the end of 2020 by at least 25% compared to 1990.” The government’s current goal of a 20% reduction by 2020, the Court held, violates Articles 2 and 8 of the European Convention on Human Rights (ECHR), a human rights treaty to which 47 nations are parties, including the Netherlands. As our colleague Michael Gerrard has pointed out, this is the first judicial decision anywhere in the world to explicitly require a government to reduce its greenhouse gas emissions.
Article 2 of the EHCR ‘protects the right to life,” and means that a nation has a “positive obligation to take appropriate steps to safeguard the lives of those within its jurisdiction.” Article 8 “protects the right to respect for private and family life,” which includes a nation’s “positive obligation to take reasonable and appropriate measures to protect individuals against serious damage to their environment.” Finally, and significantly, Article 13 “provides that if the rights and freedoms under the ECHR are violated, there exists the right to an effective remedy before a national authority.”
Climate change science, the Court said, compels the conclusion that there is a “genuine threat of dangerous climate change,” and that the “lives and welfare of Dutch residents could be seriously jeopardized.” In addition, “there is a high degree of international consensus” on the need to achieve at least a 25% reduction of greenhouse gas emissions by 2020 to prevent dangerous climate change. The government violated its duties under the ECHR with a less ambitious short-term goal, the court held. (The 2019 Dutch Climate Act sets a 49% reduction goal for 2030 and a 95% reduction goal for 2050, and there was no dispute about long-term goals.)
The Supreme Court rejected the government’s argument that “it is not for the courts” to make political decisions “on the reduction of greenhouse gas emissions.” ”The protection of human rights…is an essential component of a democratic state under the rule of law,” the Court said. “This case involves an exceptional situation. After all, there is the threat of dangerous climate change.” The government, not the courts, will decide which measures to employ to achieve the required reduction, the court explained.
In the Juliana case, 21 young people are the principal plaintiffs in a lawsuit against the United States, claiming, among other things, a right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” They developed a “substantial record” establishing the severity of existing and projected climate change impacts, and showing that the government had not only failed to act but that it “affirmatively promotes fossil fuel use in a host of ways.” They sought declaratory and injunctive relief requiring the “government to implement a plan to ‘phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].’”
The U.S. Court of Appeals for the Ninth Circuit, by a 2-1 vote, “reluctantly” held that youth plaintiffs did not have standing. All three judges agreed that climate change caused by human activity presents grave, even existential, risks. For the majority, Judge Andrew Hurwitz wrote that the plaintiffs met the first two requirements for standing—some had suffered concrete and particularized injuries, and their injuries were “fairly traceable to” carbon emissions. But even assuming that there is a constitutional right to a “climate system capable of sustaining human life,” the court said, they do not meet the third requirement because “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan.”
The plaintiffs had argued that the legislative and executive branches of government can figure out which particular measures to employ to “phase down fossil fuel emissions and draw down excess atmospheric [carbon dioxide].” But even then, the court said, a court would have to decide whether the government’s response is sufficient. There is no “limited and precise” standard, the majority wrote, by which a court could determine the adequacy of the government’s response.
Judge Josephine Staton’s lengthy dissenting opinion states that the plaintiffs are seeking to “enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction.” The discernible standard, she wrote, is “the amount of fossil-fuel emissions that will irreparably devastate our nation.” This is a scientific question, she said, not a political one.
Julia Olson, co-counsel for plaintiffs in the case, issued a statement saying the next step would be a petition for en banc review in the Ninth Circuit.
As both cases indicate, there is no universal answer on the authority of courts to order reduction of greenhouse gas emissions, and this issue is not going away.