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Climate Change Litigation against States: The Perils of Court-Made Climate Policies
... U zult denken: 'zo'n vaart zal het niet lopen.' Maar met het klimaatvonnis is de eerste stap gezet op weg naar zo'n totalitair systeem. [1] Het voorgenomen besluit van het kabinet om in hoger beroep te gaan en ook te beginnen met de uitvoering van het vonnis, is een politiek compromis dat precies het verkeerde signaal afgeeft. Het geeft allerhande belangengroepen en activistische rechters een prikkel om op de ingeslagen weg door te gaan en de rechtsstaat te blijven tarten. ...
Hoe leggen we straks aan onze kinderen uit dat we de Grondwet en de rechtsstaat hebben verkwanseld? Dat we de rechter hebben toegestaan het overheidsbeleid te bepalen op grond van veronderstelde "wetenschappelijke" noodzaak. Hoe leggen we uit dat de wetgever en uitvoerende macht de slaven zijn geworden van een door de rechterlijke macht aangestuurde scientistische voorzorgcultuur? Dat Montesquieu's "bouche de la loi" is verworden tot een activist die zich met regelmaat voor het karretje van de een of andere belangengroep laat spannen. In dit totalitaire systeem zullen politieke partijen vervangen zijn door anti-parlementaristische "bewegingen" die zich specialiseren in het manipuleren van de wetenschap en de rechterlijke macht om hun doelen te bereiken. Het publiek belang en het politieke oordeel bestaan in dit systeem niet meer. Dit is de nieuwe staatsvorm die Urgenda "duurzaam" noemt, want bij hen heiligt het doel de middelen. U zult denken: 'zo'n vaart zal het niet lopen.' Maar met het klimaatvonnis is de eerste stap gezet op weg naar zo'n totalitair systeem. [1] Het voorgenomen besluit van het kabinet om in hoger beroep te gaan en ook te beginnen met de uitvoering van het vonnis, is een politiek compromis dat precies het verkeerde signaal afgeeft. Het geeft allerhande belangengroepen en activistische rechters een prikkel om op de ingeslagen weg door te gaan en de rechtsstaat te blijven tarten. De vraag moet worden gesteld welke rechtsregel de overheid zou kunnen verplichten een ongrondwettelijk, revolutionair vonnis uit te voeren. In de jaren 70 oordeelde de Hoge Raad over de fluoridering van drinkwater. Het stond "buiten kijf" dat fluoridering wetenschappelijk noodzakelijk was om tandbederf tegen te gaan. De Hoge Raad oordeelde dat "wetenschappelijke noodzaak" niet voldoende was en eiste een wettelijke grondslag voor zo'n ingrijpende maatregel. [2] Het primaat lag bij de wetgever. In het begin van deze eeuw oordeelde de Hoge Raad over de vraag of de rechter de wetgever kan bevelen wetgeving uit te vaardigen om een Europese richtlijn uit te voeren. De Hoge Raad oordeelde dat de Grondwet aan zo'n bevel in de weg staat. Opnieuw lag het primaat bij de wetgever. [3] De Hoge Raad bleef de rechtsstaat verdedigen. In het klimaatvonnis zoekt men tevergeefs naar beschouwingen over het belang van deze jurisprudentie van Nederland's hoogste rechter. Wel vindt men er uitgebreide citaten uit rapporten van de IPCC en UNEP, die groot gevaar zouden aantonen en de wetenschappelijke noodzaak van een strenger klimaatbeleid zouden ondersteunen. Daarvoor hebben we in Nederland een mooi woord: scientisme, het geloof dat wetenschap alleen de samenleving kan besturen. Het geloof in de mythe dat de wetenschap de gehele werkelijkheid kan doorgronden en de enige waarheid kan produceren. [4] De grenzen gesteld aan de rechterlijke bevoegdheid moeten daarbij het onderspit delven. De juridische eis van 1 Deze stellingen zijn gebaseerd op een artikel dat is aangeboden voor publicatie in European Journal of Energy and Environmental Law. Zie verder L. Bergkamp and J.C. Hanekamp, Climate Change Litigation Against States: The Perils of Court-Made Climate Policies, European Energy and Environmental Law Review (October 2015). De nummers tussen haken in de tekst verwijzen naar bewijsstukken en literatuur.
... Goal 16 has a social emphasis and requires responsible, democratic institutions. Less tended to-in the literature on climate change litigation-is the related, institutional ideal of separation of powers (but see [15,16]). ...
Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.
... Kritikken gjaldt rettens aktive analyse av vitskapen om klimaendringar og bruken av privatrett som reduserte statsskjønnet. 187 På same måte kan argumentasjonen supra i punkt 2.3 verke uakseptabel: Kvifor bør norske domstolar granske økonomiske vurderingar ved å bruke økonomisk vitskap? Og vidare: Kvifor bør norske domstolar iverksette aktsomhetsstandardar for å evaluere om staten har oppfylt utgreiingsplikta si, noko som moglegvis sterkt kan avgrense statsskjønnet? ...
With only one case decided in climate change matters, Norway’s litigation landscape appears at its inception. Albeit a loss for the promoting NGOs and supportive civil society in terms of the remedies requested, the climate change lawsuit was effective in catalyzing public debate on fossil fuel policies and the role of courts. Yet, the subject matter of the case, a challenge to oil and gas licenses, proved fairly contentious as Norway’s economy is largely reliant on fossil fuel extraction. Such circumstance allows for an analysis of three clusters of climate change claims that individuals are in the position to lodge with Norwegian courts, against either public bodies or private actors, in either mitigation or adaptation matters. Notwithstanding some shortcomings, it appears that individuals can seek avenues of involvement in climate change matters through effective litigation. One of the most promising avenues rests with rights-based lawsuits, which would be buttressed by Norway’s constitutional protection of the right to a healthy environment, children’s rights, and the rights of future generations.
... Kritikken gjaldt rettens aktive analyse av vitskapen om klimaendringar og bruken av privatrett som reduserte statsskjønnet. 187 På same måte kan argumentasjonen supra i punkt 2.3 verke uakseptabel: Kvifor bør norske domstolar granske økonomiske vurderingar ved å bruke økonomisk vitskap? Og vidare: Kvifor bør norske domstolar iverksette aktsomhetsstandardar for å evaluere om staten har oppfylt utgreiingsplikta si, noko som moglegvis sterkt kan avgrense statsskjønnet? ...
Samandrag: Klimasøksmål Arktis er det fyrste og einaste klimasøksmålet i Noreg. I søksmålet løfta saksøkjarane fram sterk kritikk mot det dei oppfatta som ein paradoksal politikk i Noreg med å utvinne petroleum i Barentshavet. Mellom andre merknader påpeika saksøkjarane at dei økonomiske vurderingane regjeringa hadde gjort søraust i Barentshavet, inneheldt ei rekkje feil. Argumentet kan verke avgjerande i saka. Ifølgje uavhengige forskarar kjem det ikkje til å vere lønnsamt frå eit samfunnsøkonomisk perspektiv å opne nye felt i Barentshavet med konsekvensen at vedtaket om å opne nye felt kan bli uforsvarleg. Dette blei handsama i Oslo tingrett sin dom i 2018 og i Borgarting lagmannsrett sin dom i 2020. Likevel konkluderte tingretten og lagmannsretten med at vurderingane til regjeringa kunne forsvarast trass i feila. Men retten gjorde ikkje ei rettsleg vurdering av nokon av dei og dette aspektet har lege relativt skjult i kommentarane kring domane. Ved å ta utgangspunkt i Klimasøksmål Arktis siktar denne artikkelen på å oppnå eit litt klarare bilete av rettsprøvinga av økonomiske vurderingar i klimarettssaker. På dette feltet er rettslege instrument lite teoretiserte, noko som er problematisk ikkje berre for norsk rett, men for retten generelt. Komparativ rett kan verke som eit tolkingsmoment ved konsekvensutgreiingar og balanseringar av klimainteresser og økonomiske interesser i høve til kvarandre. Refleksjon kring dette kan gje djupare innsikt i moglegheiter og avgrensingar ved rettsprøvinga og forklare nokre av utfordringane med rettsmekling i klimarettssaker.
... Similarly, we see what we call the "Urgenda effect" on climate litigation research following the original 2015 Urgenda decision in the Netherlands. Since this high-profile case, where the Urgenda Foundation won a legal case to compel the state to take more effective action to address climate change, there has been a sustained spike in publications on climate litigation including more than a dozen analyzing the Urgenda case in an in-depth or comparative manner (Bergkamp, 2015;Bergkamp & Hanekamp, 2015;Butterfield, 2018;Cox, 2016;de Graaf & Jans, 2015;Ferreira, 2016;Peel & Osofsky, 2018;Peeters, 2016;Roy & Woerdman, 2016;Schiermeier, 2015;Ugochukwu, 2018;Van Zeben, 2015). The 2018 decision of the Hague Court of Appeals to uphold the lower court ruling is likely to maintain or spur future scholarship. ...
Studies of climate change litigation have proliferated over the past two decades, as lawsuits across the world increasingly bring policy debates about climate change mitigation and adaptation, as well as climate change‐related loss and damage to the attention of courts. We systematically identify 130 articles on climate change litigation published in English in the law and social sciences between 2000 and 2018 to identify research trajectories. In addition to a budding interdisciplinarity in scholarly interest in climate change litigation we also document a growing understanding of the full spectrum of actors involved and implicated in climate lawsuits and the range of motivations and/or strategic imperatives underpinning their engagement with the law. Situating this within the broader academic literature on the topic we then highlight a number of cutting edge trends and opportunities for future research. Four emerging themes are explored in detail: the relationship between litigation and governance; how time and scale feature in climate litigation; the role of science; and what has been coined the “human rights turn” in climate change litigation. We highlight the limits of existing work and the need for future research—not limited to legal scholarship—to evaluate the impact of both regulatory and anti‐regulatory climate‐related lawsuits, and to explore a wider set of jurisdictions, actors and themes. Addressing these issues and questions will help to develop a deeper understanding of the conditions under which litigation will strengthen or undermine climate governance.
This article is categorized under:
• Policy and Governance > Multilevel and Transnational Climate Change Governance
... I si concorren els requisits per a l'aplicació d'una norma jurídica al·legada per les parts, sigui la de responsabilitat civil (com era el cas) o una altra, el jutge l'haurà d'aplicar. En tot cas, també cal discutir si un tribunal de justícia és el millor lloc per a jutjar l'acció d'un govern en un tema tan complex com és el del canvi climàtic.133 El que és pitjor, la sentència condemnatòria pot tenir un efecte bumerang.134 ...
La sentència del tribunal de l'Haia de juny de 2016 en el cas Urgenda, que va condemnar l’Estat holandès per no fer prou per combatre el canvi climàtic,va suposar un autèntic terratrèmol per al Dret de la responsabilitat ambiental i va donar lloc a una progènie de reclamacions similars. La seva confirmació pel tribunal d’apel·lació corresponent el passat 9 d’octubre de 2018 sembla donar-hi encara més força. No obstant això, el fet és que aquests pronunciaments judicials susciten qüestions molt profundes no només sobre la responsabilitat (civil o patrimonial de l'Administració, segons el sistema) sinó també d'ordre constitucional. En judicialitzar un tema eminentment polític, permeten de plantejar dubtes sobre si pronunciaments com aquests respecten o no la deguda separació entre els poders de l'Estat. Aquest article analitza críticament unes sentències que, si bé han donat una gran visibilitat a una qüestió de gran urgència i encara d’actualitat, sembla pressuposar que un tribunal és el millor lloc per a jutjar la responsabilitat pel canvi climàtic. Aquest treball s'acaba preguntant si una reclamació “a la Urgenda”seria possible en el nostre sistema i quin seria previsiblement el seu resultat.
... Peel and Osofsky (2015) examine a number of cases where coal companies have strongly opposed efforts to impose regulatory emissions reductions, and got involved in anti-regulatory actions challenging clean energy measures. Corporate actors engaging in such anti-regulatory tactics might also question the science of climate change (Bergkamp and Hanekamp, 2015). Courts have assessed the economic impacts of climate regulation on a case-by-case basis, sometimes ruling in favour of corporations and other times in favour of the state. ...
For countries to combat climate change, legislation to reduce emissions and adapt to its impacts is already known to be important. What is less well known and studied is the role of the courts. Fighting climate change (and in some cases, climate change policies) in the courts is increasingly being seen as a viable strategy as more and more cases are being initiated. This chapter examines the state and trends of climate litigation across 27 jurisdictions outside the US for which data exists, and examines to what extent this litigation influences climate regulation. We find that the majority of cases have climate change at the periphery of the argument, address climate mitigation, and deal with administrative matters – each one of these three criteria responding for nearly 80 per cent of the sample. Lawsuits oriented towards climate policies and legislation, information and disclosure or loss and damage each represent approximately 7 per cent of the total court cases. Looking at the outcomes of climate litigation, so far the courts are enhancing climate regulation. While this relationship differs based on jurisdiction, and is a subjective assessments by the authors, these findings suggest that the courts have a role to play in the regulating climate change.
O presente artigo aborda a relação das vulnerabilidades socioambientais, especificamente às relacionadas ao meio ambiente e às mudanças climáticas, e o Poder Judiciário como instituição de prestação jurisdicional dependente da atuação interinstitucional para a promoção da Justiça em observância à inércia da jurisdição. Ao mesmo tempo em que é essencial para a promoção da Justiça e para a realização das políticas públicas judiciárias por meio do poder normativo do Conselho Nacional de Justiça e das políticas de acesso à Justiça dos tribunais brasileiros, deve atuar de forma conjunta e articulada em observância ao princípio da inércia da jurisdição. Destaca a importância de identificar as ações judiciais relacionadas aos danos climáticos e de conceituar como tal as ações judiciais ambientais que tenham como fundamento o clima, classificando-as por meio do assunto processual específico para fins de estudo, conscientização e utilização do sistema de Justiça em favor da proteção do meio ambiente.
This book analyses over twenty years of rights-based litigation in the areas of climate change and plastic pollution in order to assess the value of rights in confronting and overcoming planetary crises.
We live in an age of planetary crises such as climate change, biodiversity loss, and plastic pollution, which take a huge toll on communities all around the world, endangering their fundamental interests. But can the lack of government action on these crises, or action that worsens them, amount to violations of human rights? Many courts are grappling with this question, as rights-based litigation becomes increasingly common. By focusing on climate change and plastic pollution as case studies, this book examines the viability of rights claims when confronting planetary crises in courts. From early attempts to pursue rights claims in response to planetary crises in the 2000s, to high-profile court wins in such cases in the 2010s, and to the spread of such cases across dozens of jurisdictions by the 2020s, rights claims in climate change and plastic pollution litigation have become a truly global phenomenon. Through a systematic and in-depth analysis of such litigation in more than thirty jurisdictions, this book identifies factors that determine the viability of rights claims when confronting planetary crises. It reveals that, even though not all litigation fora are equally favourable to such claims, human rights can indeed be successfully invoked in different types of legal action.
This book will be of considerable interest to policymakers, legal scholars and practitioners, as well as students, who work in or study environmental and climate change law, human rights law, constitutional law, and international and comparative law.
Climate change litigation, which is often perceived as an attempt to fill the regulatory gap left by the traditional decision-making legislative and executive branches, has grown intensively in recent years, becoming an important feature of climate governance in the US and a growing trend in some other jurisdictions. However, climate cases often involve a range of complex legal and non-legal issues, such as separation of powers, scientific uncertainty, causation and liability. How effective is the judiciary in climate policy-making and what impact will it have on global climate governance? The paper attempts to answer this question by discussing the role of the judiciary in contemporary climate governance and the specifics of regulatory approaches adopted by courts in dealing with climate cases.
Decarbonization agendas are hindered by the tensions associated to its regressive distributional consequences, conflicting political objectives, lack of long-term strategies and countries’ institutional structures. The constitutionalization of environmental provisions, embodying values that cannot be easily compromised, has therefore a strong appeal to underpin the climate change battle. We analyse the recent attempt of France - the first among European countries - to entrench the fight against climate change in its constitution. The reform provides an example of the appeal of constitutionalism when the fracture between long-term climate agendas and social - economic reality is deep, hardly composed by domestic institutions and this puts at risk the legitimacy of decarbonization policies. While advocated by large part of the public opinion, the French constitutional reform failed due to poor concertation and the uncertainty surrounding its juridical impact. The French case offers useful insights for governments turning to the constitution to underpin their climate agendas and for scholars analyzing the emergence and consequences of constitutionalizing the fight against climate change.
In State of the Netherlands v. Urgenda Foundation (the Urgenda verdict), the Dutch Supreme Court ordered the Dutch Government to pursue a goal of a 25 % rather than a 20 % decrease in CO 2 emissions. The present article discusses the verdict and climate litigation of this kind more generally from a functional perspective rather than from the perspective of democratic legitimacy. It argues that the premises of the Court were inapplicable from an economic perspective and that the faulty reasoning is indicative of reasons why judicial restraint is socially desirable in the area of climate policies. From the viewpoint of social welfare, it may be desirable that a court overrides climate policy if the policy neglects the interests of future generations, i.e. if it is unsustainable. However, the Court did not consult the economic literature on sustainable climate policies. It relied on a consensus among climate scientists, on the European Convention of Human Rights, and on the precautionary principle. We argue that if the Court had consulted the economic literature, it would have found disagreement about how quickly emissions should be lowered, and it would have had to address many complex sources of disagreement that cannot be eliminated by recourse to human rights or the precautionary principle. The Court would have had to subjectively assess different economic theories. However, the litigation process is not set up for and judges are not trained for this complex assessment.
This chapter focuses on the strand of climate justice represented by access to legal means, justice and redress in the case environmental human rights have been violated. It provides a description and conceptualization of climate litigation as an instrument to achieve climate justice through redress of human rights violations connected to negative impacts of climate change. This chapter presents a focus on climate litigation related to Indigenous peoples, evidencing potentialities and flaws of case law brought before international human rights courts and commissions in a climate justice perspective.
There are two general pathways towards climate change litigation in China: tort-based litigation to hold carbon emitters accountable in civil law, and administrative litigation against the government to demand better climate regulation. While the first pathway is gaining momentum among Chinese scholars, this article argues that legal barriers to applying tort-based rules to climate change should be fairly acknowledged. The article argues that China's legal framework for environmental impact assessment (EIA) provides more openness and flexibility for the resolution of climate change disputes. Therefore, EIA-based climate lawsuits, which challenge environmental authorities for not adequately taking climate change factors into account in decision-making processes, encounter relatively fewer legal barriers, require less radical legal or institutional reform, and have greater potential to maintain existing legal orders. The regulatory effects produced by EIA-based litigation suggest that the scholarship on climate change litigation in China should take such litigation seriously because it could influence both governments and emitters in undertaking more proactive efforts. This China-based study, with a special focus on judicial practice in the largest developing country, will shine a light on China's contribution to transnational climate litigation.
Expertise in the form of climate change science plays an indispensable role in governmental decision-making regarding the reduction of greenhouse gases. In order to make the (peer-reviewed) climate science accessible for policy-making, an important task is given to the Inter-Governmental Panel on Climate Change (IPCC). However, reports from the IPCC—together with other scientific documents—may also be used in the courtroom. This contribution explores what role IPCC reports have played thus far in seminal court decisions in the US and Europe. Furthermore, it observes that while the IPCC will stay important for decision-making in the context of the Paris Agreement, the IPCC and its decision-making procedures have not remained uncontested in legal (and other) literature. In tandem with the important role taken or given to the IPCC, fundamental legal questions regarding the production of climate science by the IPCC have to be examined, for which the concept of “global administrative law” may be useful since it examines the legitimacy and accountability of international decision-making. If courts are indeed willing to follow statements from the IPCC or from peer reviewed articles in such a way that this amounts to standard-setting, like a specific emission pathway, the rule-making power of the executive and legislative branch will clearly become less important and may be overturned. While this can be an enormous victory for climate protection, the implied shift of power still needs to be objectively identified and discussed, particularly also in view of helping to avoid unjustified contestation of climate science.
Climate change litigation has grown intensively in recent years, becoming an important feature of climate governance in the US and a growing trend in some other jurisdictions. However, climate plaintiffs have traditionally encountered many procedural hurdles, including standing, which has often barred access to justice. To have standing, a party must be able to show some kind of interest in the outcome of the case, which usually stipulates the presence of a concrete injury emanating from an identifiable entity or the existing law. In case of climate change litigation, plaintiffs must thus assert actual injury from industry or state action/inaction with regard to GHG emissions and the resulting climate change, which may still be somewhat difficult from a scientific point of view. This chapter seeks to explore the current trends in private party standing in the US, Australian and European climate cases.
INTRODUCTION
Sometimes a case comes along that has repercussions beyond the parties to the dispute and the specific legal questions under consideration. It not only has the potential to be crystallized as a precedent with respect to the subject matter in the State where it is filed, but has ramifications for other areas of law and other legal systems. It becomes a ‘judicial decision that has normative implications beyond the context of a particular case’. The Urgenda decision 2 of the Rechtbank Den Haag (the Hague District Court) published on 24 June 2015 is one such decision.
The case was raised by a group of private petitioners represented by the Urgenda Foundation, a non-governmental organization (NGO), arguing that the State's climate mitigation measures are not significant enough to protect the citizens of the Netherlands from the impending threat of global warming (hereinafter the judgment is referred to as ‘Urgenda’). The State, therefore, did not satisfy its duty of care towards its citizens. In its decision, the Court agreed with Urgenda that the State is required to take more action to combat climate change.
The decision has had widespread consequences. It has already assumed importance not only in the Dutch legal system, but has also prompted climate change lawsuits in other jurisdictions. The decision has grabbed the attention of the media, and celebrities have endorsed the call for more climate action. Legal scholars also seem to be substantially interested in it, and there has been an outpouring of literature on the case. Most of this literature indicates, however, that the decision is situated on shaky legal grounds. The impact and value may be toppled if the State of the Netherlands succeeds in an appeal it has lodged against the decision in the Court of Appeals. To my mind, irrespective of the outcome of the appeal, the decision is already firmly etched in the history of climate law. This is so for reasons I have detailed in two earlier articles. In the first article, I show how ‘diffused’ jurisprudence from other jurisdictions combined with Dutch jurisprudence to allow the Court to take cognizance of a private climate change lawsuit and handle the thorny issue of judicial overreach in the bargain.
This article examines the complex risks, costs and rewards of large-scale private law climate litigation – the climate litigation ‘holy grail’. It argues that while these cases undoubtedly have heroic aspects, their impacts can be complex or difficult to understand. It uses overlapping theories of metaphor and narrative in law, and theories of private law, to make some critical observations about these cases. Distilling some core reflections from the grail legends, the article argues that success in these cases requires a nuanced understanding of victory and defeat, and more careful thinking about the character, aims, and effect of these pieces of litigation. These stories inspire constant reflection as to what the metaphor of the ‘holy grail’ might mean in this context, and the role that these cases play in the development of a narrative about climate litigation.
This article examines the complex risks, costs and rewards of large-scale private law climate litigation – the climate litigation ‘holy grail’. It argues that while these cases undoubtedly have heroic aspects, their impacts can be complex or difficult to understand. It uses overlapping theories of metaphor and narrative in law, and theories of private law, to make some critical observations about these cases. Distilling some core reflections from the grail legends, the article argues that success in these cases requires a nuanced understanding of victory and defeat, and more careful thinking about the character, aims and effect of these pieces of litigation. These stories inspire constant reflection as to what the metaphor of the ‘holy grail’ might mean in this context, and the role these cases play in the development of a narrative about climate litigation.
This essay highlights the major global trends and critical issues that emerged so far in climate change litigation, through the analysis of some significant cases in different jurisdictions. Climate cases involve different actors and a wide variety of claims: claims challenging specific projects or activities; lawsuits dealing with damages caused by climate change-related events and seeking compensation and/or injunctions; cases aiming at amending key features of national climate change policy and legislation. Finally, the essay identifies some trends in the very heterogeneous body of arguments that are brought before the courts, including obligations arising from international and human rights law.
This paper discusses a particular field of climate change law: climate change litigation based on claims stemming from the right to a clean and healthy environment under national and international human rights law. This field is coming under increased scrutiny of both legal scholars and practitioners. While the share of rights-based climate cases within the global body of climate change litigation is still very insignificant, a number of such cases have already been heard by courts all across the globe. The initial assessment of the existing case-law allows for cautious optimism that the use of rights-based claims, notably the right to a clean and healthy environment under national and/or international law, is justified and can yield at least some positive results.
This chapter highlights some of the legal issues in the Urgenda case and the implications for similar climate justice litigation in other countries. Part I examines the court’s decision in Urgenda. Part II assesses a number of views on three key legal questions raised by the Urgenda case. At the domestic level, legal experts remain divided over whether the court’s decision overreaches its judicial authority or whether it presents a much-needed effort to correct a constitutional imbalance. At the European level, the district court may not have authority to issue a ruling that implies that the Netherlands’ compliance with its EU obligations was unlawful. Finally, this section reviews various international and regional legal commitments and general principles that the Netherlands upholds under the general rules of treaty interpretation and international law.
Part III considers the implications of Urgenda for other climate cases, both in Europe and abroad. Many of the issues raised in Part III are limiting factors for other jurisdictions. The chapter concludes that both the Urgenda case and the Paris Agreement usher in a new era in climate action. Governments and civil society are engaging more than ever on climate change, with climate justice litigation providing some of the means by which to engage in a serious dialogue between governments and citizens on how to increase regulatory ambition. A new wave of climate pledges can provide the material from which to bring some of these cases, but overly zealous litigation can have the unintended effect of undermining aspirational policies and measures. Domestic courts, and perhaps even regional courts, will need to critically assess their role in reconciling these forces in seeking to promote climate justice.
Cambridge Core - European Law - European Energy Law Report XI - edited by Martha M. Roggenkamp
The precautionary principle has been invoked to support stringent European food law. By its nature, the principle is particularly relevant to food security. This chapter discusses how precaution has been applied in EU food law generally, and finds that its application has been both controversial and selective. We then turn to two specific cases in which the precautionary principle played a prominent role: antibiotic residues in food and micronutrient malnutrition. On this basis, we revisit the precautionary principle’s role in EU food law. We conclude that the precautionary principle is best understood as a political tool, rather than an intellectual concept.
In a situation of climate injustice, where those who have contributed the least to climate change are facing its most dire consequences, litigation is sometimes the only effective means of enhancing transparency and ensuring accountability. When such litigation address an alleged governmental inaction (or insufficient action) in the climate change field, complex questions related to the role of the judiciary and the separation of power arise. The difficulty with litigation for climate change inaction is the court’s reluctance in overstepping its scope of authority by requesting governments to enact better regulations for climate change adaptation and mitigation. The role of courts in adjudicating climate change litigation for governmental inaction is examined through a comparative analysis of selected recent climate change cases. An analysis of Urgenda Foundation v Kingdom of the Netherlands indicates that a constitutional right to a healthy environment positively influences a finding of justiciability, while the case of Leghari v Republic of Pakistan shows the inclination of judges from competitively authoritarian regimes to fill the institutional vacuum left by the other branches. A review of recent atmospheric trust litigation in the United States, such as the case of Juliana v United States, in light of older American jurisprudence on climate change litigation, leads to the conclusion that courts have the possibility to decline to hear politically sensitive matters by manipulating nebulous concepts of justiciability and standing. While a litigious approach is indeed ad hoc and reactive, the impact of legal mobilization brings political pressure to better regulate and indirect pressure on the industry to reduce emissions. Despite the legally disruptive nature of climate change litigation, judges, within the bounds of the legitimate possibilities at their disposal, must decide on legal questions, no matter their political implications.
Tags: Climate change litigation; justiciability; standing; government inaction; climate justice; accountability; Urgenda; Juliana et al; Leghari
There is little novelty to be found in the Paris Climate Agreement. Nevertheless, it may have serious implications for climate policy-making. It establishes an international framework for decentralized climate policy-making by states, which should aim to achieve an ambitious collective objective of limiting global average temperature increase to well below to well below 2 °C or even 1.5 °C. The agreement does not set any mechanism, methodology or criteria, however, for assigning individual mitigation obligations to party states. It does not impose any significant substantive obligations on the parties, and, from a legal, as opposed to political or moral, viewpoint, it seems to be virtually non-binding. This gap is destined to become the Paris Agreement’s Trojan horse, because, under the guise of direct democracy in a system of multi-level, non-hierarchical governance, it grants not only credibility but also de facto authority to climate activists, thus posing a threat to constitutional government and representative democracy. The agreement demands that nation states explicitly acknowledge that their efforts are inadequate, while setting them up for failure, thereby changing the political environment in which climate policy is made. The ambition-obligation disparity creates a large arena for climate activism at international and national levels, effectuating a transfer of power, or at least of influence, that is inconsistent with the fundamental principles of constitutional government. If the collective efforts appear to fall short of achieving the Paris Agreement’s objectives, the judiciary is likely to be dragged into climate policy-making. Climate action groups or executive governments supporting ambitious action will charge the body politic with impotence, declare “government failure,” and seek the help of the courts to get governments to “do the right thing.” To support their claims, they can invoke the admissions and objectives set out in the Paris Agreement. Thus, in demanding that the signatories acknowledge explicitly that their efforts are inadequate, the Paris Agreement paves the way for the new international climate governance. Its implicit reliance on political activism by the climate movement and the related non-hierarchical governance by the courts constitute a threat to constitutional government, the rule of law, and representative democracy. It risks an unconstitutional usurpation of power by activist groups and unelected and unaccountable judges that could undermine legislative power and the role of positive law in deciding legal disputes. This risk of subversion is not well understood by politicians and governments. Nations should protect themselves against these threats. After all, signing away control over climate policy to unaccountable and unelected actors is not in the public interest. Nor is it, under even the most optimistic of circumstances, a viable path to rational, effective and sustainable climate policies. Indeed, the future of representative democracy may be at stake. Climate policy-making should not be left to the UNFCC secretariat, the climate movement and the judiciary. Now is the time for national legislatures to assert and defend their prerogatives.
Debates over the proper function of courts tend to focus on delineating the outer limits of judicial authority. One of the primary concerns in these debates is the phenomenon often described as judicial activism. Although there is no fixed notion of precisely what constitutes judicial activism, the core idea is a concern about judges overstepping the bounds of their role, and somehow or other doing more than is proper. What might be characterized as judicial inactivism, in contrast, has generally been overlooked. This is somewhat curious. Underlying concern about judicial inactivism is a recognition of the possibility that judges might fail to perform the minimal components of the judicial function. The consequences of such a judicial failure to act - typically the preservation of the status quo - will generally be no less significant than those resulting from judicial action. Indeed, since improper judicial inaction might be harder to detect than improper judicial action, one might suppose that we should be more concerned about judicial inactivism than we are about judicial activism. This article attempts to provide an answer to the question of what judicial inactivism might look like. In so doing, it draws on previous efforts to articulate models of civil adjudication, and unites that literature with the largely distinct body of work addressing the topic of judicial candor. The goal is to articulate at least some of the components of the adjudicative duty - a court's minimal adjudicative obligations when presented with a justiciable claim over which it has jurisdiction. Thus it considers such questions as whether a court may, in effect, decide not to decide. And if there is a duty to decide, how far does it extend? Is it enough for the court merely to pick a winner, or must it confront the parties' claims and arguments? If the latter, should the court regard itself as bound by the parties' characterization of the dispute? How much must the court disclose about its decisional process?
In this admittedly eclectic study, a number of topics come together that focus on the so-called precautionary culture, very concisely the ideal of a harm-free society. The precautionary outlook, which is usually portrayed with the aid of the precautionary principle that states that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation, is regarded as the lodestar to a safe, secure and sustainable future. Sustainability typically is characterised as the ability of humanity to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs. The central tenet that will be deve- loped in this enquiry is that:
In recognising Jesus as the resurrected God Incarnate, the general utopian character of precautionary culture specifically can both be exposed and critiqued. Furthermore, this understanding of Jesus will provide an anticipatory perspective on life that is transcending both suffering and death, the very borderlines the precautionary/sustainable perspective cannot surpass, merely postpone. In the New Testament, this anticipation takes the form of hope.
Objectives To examine cross-sectional associations of socioeconomic status (ie, income and education) with an adherence to a Mediterranean dietary pattern and obesity prevalence.
Design Cross-sectional study on a sample of Italian subjects enrolled in the Moli-sani Project, a population-based cohort study. The Italian EPIC food frequency questionnaire was used to determine food intake. Adherence to a Mediterranean diet (MD) was appraised according to both the Mediterranean score elaborated by Trichopoulou (MDS) and the novel Italian Mediterranean Index (IMI) and to the a posteriori scores derived from principal component analysis. Four income categories were identified.
Setting Molise region, Italy.
Participants 13 262 subjects (mean age 53±11, 50% men) out of 24 318 citizens (age ≥35) randomly enrolled in the Moli-sani Project.
Main outcomes Dietary patterns and risk factors for cardiovascular disease.
Results Household higher income were significantly associated with greater adherence to an MD (p<0.0001) and to Olive oil and Vegetables dietary pattern in a multivariable model including age, sex, daily energy intake, body mass index, physical activity, smoking, alcohol consumption, education and marital status. The odds of having the highest adherence to an MD clearly increased according to income levels. People having the highest income had 54% (95% CI 21% to 97%, MDS) or 72% (95% CI 34% to 121%, IMI) higher probability to stick to an MD-like eating pattern than those in the lowest-income group. Obesity prevalence was higher in the lowest-income group (36%) in comparison with the highest-income category (20%, p<0.0001). Income was associated with dietary patterns in all categories of education.
Conclusions A higher income and education are independently associated with a greater adherence to MD-like eating patterns and a lower prevalence of obesity.
We examine political polarization over climate change within the American public by analyzing data from 10 nationally representative Gallup Polls between 2001 and 2010. We find that liberals and Democrats are more likely to report beliefs consistent with the scientific consensus and express personal concern about global warming than are conservatives and Republicans. Further, the effects of educational attainment and self-reported understanding on global warming beliefs and concern are positive for liberals and Democrats, but are weaker or negative for conservatives and Republicans. Last, significant ideological and partisan polarization has occurred on the issue of climate change over the past decade.
Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.
Fifty-two percent of Americans think most climate scientists agree that the Earth has been warming in recent years, and 47% think climate scientists agree (i.e., that there is a scientific consensus) that human activities are a major cause of that warming, according to recent polling (see http://www.pollingreport.com/enviro.htm). However, attempts to quantify the scientific consensus on anthropogenic warming have met with criticism. For instance, Oreskes [2004] reviewed 928 abstracts from peer-reviewed research papers and found that more than 75% either explicitly or implicitly accepted the consensus view that Earth's climate is being affected by human activities. Yet Oreskes's approach has been criticized for overstating the level of consensus acceptance within the examined abstracts [Peiser, 2005] and for not capturing the full diversity of scientific opinion [Pielke, 2005]. A review of previous attempts at quantifying the consensus and criticisms is provided by Kendall Zimmerman [2008]. The objective of our study presented here is to assess the scientific consensus on climate change through an unbiased survey of a large and broad group of Earth scientists.
A better representation of the coupling between atmospheric water and circulation is necessary to reduce imprecision in climate model projections.
Citizens are often required to make decisions about socioscientific issues in a climate characterized by conflict within both the scientific community and the larger society. Central to the process of decisionmaking is a critical examination of the relevant scientific knowledge involved. Individuals capable of performing this task can be considered scientifically literate in a decisionmaking sense. In this article we explore two ways of critically examining scientific knowledge in the context of a current socioscientific dispute: NASA's Galileo Mission to Jupiter. The two approaches we outline, termed the positivist and social constructivist positions, are examined in terms of their inherent views concerning the nature of scientific knowledge, in particular their use of constitutive and contextual values when evaluating knowledge claims. Because the social constructivist position acknowledges the importance of contextual values, it provides citizens with accessible standards for evaluating scientific knowledge claims. The positivist position, on the other hand, relies on constitutive values which we show are normally inaccessible to ordinary citizens. The positivist position, however, is most closely associated with the predominant social issues approach to science-technology-society (STS) education. Implications little consensus about which statements are fact (i.e., will remain stable when challenged) and which opinion, (i.e., will be modified when challenged). All knowledge is potentially unreliable when one is dealing with a socioscientific dispute.
In dit proefschrift wordt het voorzorgsbeginsel geanalyseerd. Dit beginsel werd tijdens de VN Conferentie inzake Milieu en Ontwikkeling in 1992 in de Verklaring van Rio als Beginsel 15 aanvaard. De aanwezige landen beloofden het voorzorgsbeginsel ter bescherming van het milieu afhankelijk van hun mogelijkheden zo veel mogelijk toe te zullen passen. Het beginsel werd als volgt gedefinieerd. "Als er gevaar bestaat voor ernstige of irreversibele schade mag gebrek aan volledige wetenschappelijke zekerheid niet worden aangevoerd als reden om kosteneffectieve maatregelen ter voorkoming van milieuschade uit te stellen." Hieruit valt af te leiden dat het voorzorgsbeginsel betrekking heeft op een specifiek soort gevallen van dreigende milieuschade, namelijk die gevallen waarin het niet (of nog niet) mogelijk is om risico's te kwantificeren. Zie: Samenvatting
Market-based instruments (MBI’s) are advocated because of their presumed lower economic cost in comparison with conventional regulatory instruments. The environmental effectiveness of the MBI is typically assumed to be the same as that of the conventional alternative (Crocker, 1966; Dales, 1968; Montgomery, 1972). Recent experience with cap-and-trade systems has confirmed the economic advantages of MBI’s (Ellerman et al., 2000; Carlson et al., 2000; Ellerman et al., 2003) and failed to find a degradation of environmental performance (Burtraw and Mansur, 1999; Swift, 2000). As a result, MBI’s, and especially cap-and-trade systems, have become widely accepted in the policy community. Recognizing this circumstance, opponents of the use of MBIs tend to attack the assumption that the environmental performance is equal (Clear the Air, 2002; Moore, 2002). Their argument is that, while the economic performance may be better, the environmental performance is worse, and that the increased environmental damages outweigh the savings in abatement cost.
Achieving-Low-Carbon-Growth-For-The-World_Ð Sir-Nicholas-Stern-on-the-key-eleme.html 1919`` Cap and trade'' programs, of course
- Nicholas Stern
- Growth For The
- World
Nicholas Stern, Growth For The World, November 2007,
available at http://www.res.org.uk/details/mediabrief/
4386761/Achieving-Low-Carbon-Growth-For-The-World_Ð
Sir-Nicholas-Stern-on-the-key-eleme.html
1919`` Cap and trade'' programs, of course, are based on the
concept that they will maximize the value of emission rights.
grandioos-mea-culpa-diederik-samsom-in-historisch-kamer debat/ European 59 Coen Drion, De waarheid
- See
See, for instance, the debate in the Dutch parliament on on`` climategate,'' available at http://climategate.nl/2010/01/28/
grandioos-mea-culpa-diederik-samsom-in-historisch-kamer
debat/
European 59 Coen Drion, De waarheid, NJB 2013/2250, p. 2661.
60 Cf. Peter L. Strauss, Possible Controls over the Bending
of Regulatory Science, in: Gordon Anthony et al., Eds,
Values in Global Administrative Law (Hart 2011).
Consensus about climate change?'' ScienceClimate Simulation, Uncertainty, and Policy Advice ± The Case of the IPCC Climate Change and Policy
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Naomi Orestes, ``The Scientific Consensus on Climate
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``Consensus about climate change?'' Science, 308, 2005, pp.
952±953. A.C. Petersen, ``Climate Simulation, Uncertainty,
and Policy Advice ± The Case of the IPCC'', in: G.
Gramelsberger and J. Feichter (eds.), Climate Change and
Policy, Springer, Berlin, 2011, pp. 91±111 (noting that``that`` [ t]he
subject of climate change is imbued with scientific dissensus as
to precisely what is happening, and will happen, with the
climate'').
The Tragedy of the Commons
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Zalta (ed.), http://plato.stanford.edu/archives/fall2014/entries/
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21 Garrett Hardin, ``The Tragedy of the Commons'',
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22 Urgenda's lawyer (Roger Cox) in an interview, available
at http://archive.wired.com/wired/archive/2.10/godwin.
if_pr.html
23
66 It, for instance, is assisting with the Belgian climate change law suit. See http
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Cf. Rosanne van Alebeek, Staatsimmuniteit, in: Nathalie
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66 It, for instance, is assisting with the Belgian climate
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67 On 1 September 2015, it announced that it would appeal.
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Bullock & Stephen Trombley (Eds), The New Fontana
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IPCC, 2014: Summary for policymakers In: Climate Change 2014: Impacts, Adaptation, and Vulnerability . Part A: Global and Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change
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Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution
of Working Group II to the Fifth Assessment Report of the
Intergovernmental Panel on Climate Change [Field, C.B.,
V.R. Barros, D.J. Dokken, K.J. Mach, M.D. Mastrandrea,
T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C.
18 Nicholas Stern, Growth For The WorldAchieving-Low-Carbon-Growth-For-The-World_Ð Sir-Nicholas-Stern-on-the-key-eleme.html 19``19`` Cap and trade'' programs, of course
- Mckenzie Funk
McKenzie Funk, Windfall: The Booming Business of
Global Warming, Penguin Press, 2013.
18 Nicholas Stern, Growth For The World, November 2007,
available at http://www.res.org.uk/details/mediabrief/
4386761/Achieving-Low-Carbon-Growth-For-The-World_Ð
Sir-Nicholas-Stern-on-the-key-eleme.html
19``19`` Cap and trade'' programs, of course, are based on the
concept that they will maximize the value of emission rights.
available at http://www.scientificamerican.com/article/big- gap-between-what-scientists-say-and-americans-think- about-climate-changeThe Politicization of Climate Change and Polarization in the American Public's Views of Global Warming
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Cf. Gayathri Vaidyanathan and ClimateWire, Big Gap
between What Scientists Say and Americans Think about
Climate Change, Scientific American, January 30, 2015,
available at http://www.scientificamerican.com/article/big-
gap-between-what-scientists-say-and-americans-think-
about-climate-change/
88 McCright, A. M. and Dunlap, R. E., ``The Politicization
of Climate Change and Polarization in the American
Public's Views of Global Warming, 2001Ð2010'', The
Sociological Quarterly, Spring 2011, Volume 52, Issue 2,
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91 See Our Children's Trust, available at http://ourchildrens trust.org/US/Federal-Lawsuit 92 Grandparents taking action on climate change, available at http://www.campaigncc.org/grandparents 93The Origin and Current Meanings of`Judicialof`Judicial Activism
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klimaatzaak.eu/nl/nl/frontpage/
91 See Our Children's Trust, available at http://ourchildrens
trust.org/US/Federal-Lawsuit
92 Grandparents taking action on climate change, available
at http://www.campaigncc.org/grandparents
93 Cf. Kmiec, Keenan D. (2004). ``The Origin and Current
Meanings of`Judicialof`Judicial Activism'''. Cal. L. Rev. 92: 1441±
Possible Controls over the Bending of Regulatory Science
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of Regulatory Science, in: Gordon Anthony et al., Eds,
Values in Global Administrative Law (Hart 2011).
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xamining the Scientific Consensus on Climate Change'',
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Is the Government Buying Science or Support? A Framework Analysis of Federal Funding-induced Bias, Cato Working Paper No. 29
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the death penalty is an appropriate punishment for influential [climate change] deniers
Parncutt has suggested that``the death penalty is an
appropriate punishment for influential [climate change]
deniers.'' Richard Parncutt: Death penalty for global
warming deniers?, 25 October 2012, available at http://
www.webcitation.org/6D8yy8NUJ Richard S. Lindzen,`T
he Political Assault on Climate Skeptics'', The Wall
Street Journal, March 4, 2015, available at http://
www.wsj.com/articles/richard-s-lindzen-the-political-assault-on-climate-skeptics-1425513033
De toepassing van de vereisten van causaliteit, relativiteit en toerekening bij de onrechtmatige overheidsdaad
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Di Bella, Laura.``De toepassing van de vereisten van
causaliteit, relativiteit en toerekening bij de onrechtmatige
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on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020
Climate change no longer is an empirical, scientific
problem. It has also become a philosophical, cultural,
75 Decision No 406/2009/EC of the European Parliament
and of the Council of 23 April 2009 on the effort of Member
States to reduce their greenhouse gas emissions to meet the
Community's greenhouse gas emission reduction commitments up to 2020, OJ L 140, 5.6.2009, pp. 136±148.
Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings
Article 267, TFEU. See also Court of Justice of the
European Union, Recommendations to national courts and
tribunals in relation to the initiation of preliminary ruling
proceedings, OJ C 338, 6.11.2012, p. 1±6
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Annex II, Decision No 406/2009, OJ L 140, 5.6.2009, p.
136±148.
- Gayathri Cf
- Climatewire Vaidyanathan
Cf. Gayathri Vaidyanathan and ClimateWire, Big Gap
between What Scientists Say and Americans Think about
Climate Change, Scientific American, January 30, 2015,
available at http://www.scientificamerican.com/article/biggap-between-what-scientists-say-and-americans-thinkabout-climate-change/