Courts can play a pivotal role in combating climate change

Calin Tatu/Shuttestock.com
The international community has widely acknowledged the severe threats posed by the impacts of climate change to a series of human rights, including the rights to life, health, and an adequate standard of living. But a stark gap has emerged between this acknowledgement in global climate policy – evidenced by a non-binding clause in the preamble of the Paris Agreement – and their actions to meet promised targets.
How can we hold governments accountable to their human rights duties? A Dutch case recently upheld by the appeals court might hold the answer.
In June 2015, The Hague District Court and a group of 886 concerned citizens, united by the environmental interest group Urgenda Foundation, made history. This, the first successful climate change case brought on human rights and civil law grounds, saw the Dutch government ordered to reduce their greenhouse gas emissions by a minimum of 25% on 1990 levels by the year 2020.
Three years on – against a backdrop of intense scrutiny and after an appeal lodged by the government – The Hague Court of Appeal upheld this decision on October 9. Indeed, it has gone significantly further in affirming the duties of care owed by the state to its people. The court considered the weight of the scientific evidence presented by the Intergovernmental Panel on Climate Change (IPCC) and the recommendations of successive UN conferences to reach an informed conclusion on the required mitigation targets commensurate with the prevention of dangerous climate change.
Marjan Minnesma, director of environmental group Urgenda, arrives at court prior to the appeal. Jerry Lampden/EPA
Significantly, the judges reached this decision by applying the European Convention on Human Rights: the right to private and family life and the right to life more broadly. As such, this case reaffirms the existence of obligations on the part of the state to take concrete measures to prevent the infringement of these rights where the authorities are aware of the existence of a real and imminent threat.
These obligations were held to extend to industrial activities which threaten the rights of people within the state’s jurisdiction. Based on an analysis of the scientific evidence, the court concluded that climate change presents a real and imminent threat to the enjoyment of citizens’ rights as spelled out in the EU convention. They ruled that a 25% emissions reduction is the minimum required to fulfil the government’s duty of care.


Human rights alarm

The Urgenda appeal decision was handed down too early for the findings of the most recent IPCC report on global warming of 1.5ºC, which was published the day before the ruling, to be integrated into the judges’ reasoning. But these findings will significantly strengthen the evidential basis of future claims.
The IPCC report outlines the stark increase in the risks to human health, food and water security, and livelihoods associated with 2ºC of warming, when compared to 1.5ºC. The evidence presented on human health, including the increased risk of heat-related morbidity and mortality, projected with “very high confidence”, is particularly striking. The climate is currently 1ºC warmer than pre-industrial levels, and with the planet projected to reach 1.5ºC as early as 2030 if current trends continue, the alarm on the imminence of the threat to human rights has been sounded.
No legally binding human rights provisions or remedies are provided within the international climate change regime. And so we must turn to the courts to clarify state duties. The Urgenda case sets an encouraging precedent. And there are many more examples of rights-based claims being brought against governments in BelgiumCanadaColombia, the UK, and even against the EU institutions. This marks a sea change in the use of human rights to hold policymakers to account for their inaction on climate change.


The decision by the Netherlands court of appeals in #Urgenda immediately becomes the most important judicial decision yet on the application of human rights law to climate change. 1/10 https://t.co/8ioKxFEjly

— John H Knox (@JohnHKnox) 9 October 2018


A new approach

In the face of the severity and imminence of the environmental risks we face, the approach to human rights protection adopted by the Urgenda judges is crucial. If courts focus on the imminent risks to human life and health, cases brought forward by particularly climate-vulnerable groups should be prioritised.
Individuals most at risk from rising temperatures and extreme weather events – including those whose livelihoods, socio-economic status, and geographic susceptibility result in them being disproportionately affected – would have the strongest claims. Civil society organisations have a crucial role to play in facilitating access to justice for such individuals, for whom entrenched structural barriers often mean that individual access to the courts remains out of reach.
To effectively accommodate climate risks of this nature the existing legal doctrine will need to be adapted, bringing together environmental principles and human rights. The role of the courts themselves is being called into question by climate litigation: the separation of powers between policymakers and the judiciary is embedded in legal systems around the globe, yet the protection of fundamental rights is intended to transcend this divide. It is the duty of the courts to act as a check on executive action and, in this case, inaction, where the enjoyment of rights is in jeopardy.
Never before has the role of the courts been so significant in influencing the path of global policy. In the face of inadequately ambitious action by policy-makers, civil society movements and the courts are the agents of change securing climate action.The Conversation


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This blog was written by Cabot Institute member Alice Venn, a PhD Candidate in Environment, Energy & Resilience and Unit Coordinator in Environmental Law, University of Bristol.  This article is republished from The Conversation under a Creative Commons license. Read the original article
Alice Venn
 
 

The Paris Agreement – where are we now?

Cabot Annual Lecture 2018

This year the Cabot Institute Annual Lecture posed a critical question: where are we with current efforts to tackle global climate change? The event brought together over 800 people to hear from leading Cabot Institute experts in climate science, policy, and justice, Dr Jo House, Dr Dann Mitchell, Dr Alix Dietzel and Professor Tony Payne. It was both an appraisal of the findings of the recently published report of the Intergovernmental Panel on Climate Change (IPCC), and a grounded call to climate action.

Paris commitments

In 2015 world leaders adopted the Paris Agreement committing all parties to limiting global average temperatures to well below 2 °C above pre-industrial levels and to pursue efforts to limit warming to 1.5 °C. All countries undertook to achieve global peaking of greenhouse gas emissions as soon as possible and to enact increasingly ambitious mitigation measures in line with the overarching temperature goals. The Paris Agreement, in contrast to the preceding Kyoto Protocol, is not based on legally binding reductions targets for developed countries, but on a voluntary system of pledges known as ‘nationally determined contributions’ for all parties which will be subject to a stocktake of global progress every five years, beginning in 2023.

Although the Paris Agreement initially offered great promise with pledges being made by both developed and developing countries, a report by the UN Environment Programme in November 2017 examining progress towards the global temperature goals found that even if all current pledges are honoured, we remain on track for some 3 °C of warming by 2100. In light of this, and under the Presidency of Fiji, the first Small Island State to preside over a Conference of the Parties at COP23 last year, the focus has been on building momentum for more urgent action through the facilitative ‘Talanoa dialogue’ and on hashing out the final operating procedures for the Agreement. The findings of the IPCC Report on Global Warming of 1.5°C, published on 8 October represent a further important piece of the picture of global progress, which three of the Cabot speakers shed light upon as contributing authors.

Why 0.5°C of warming matters

The findings of the report are significant in illustrating the projected differences in climate change impacts between the 1.5°C and 2°C temperature thresholds. Dr Dann Mitchell outlined the evidence for increases in regional mean temperatures and for the increasing likelihood of temperature extremes of the kind witnessed during this summer’s European heatwave, which we could see occur almost every year at 2°C of warming. These extremes, together with the projected intensification of storms presented in the report, are closely linked to human risks to health, wellbeing and livelihoods.

Cabot Annual Lecture 2018
Dr Dann Mitchell

Professor Tony Payne echoed these concerns with respect to the findings of the report on sea-level rise which predict an extra 10cm rise between the 1.5°C and 2°C temperature thresholds, equating, in turn, to an additional 10 million people at risk of related impacts including inundation and displacement. The destabilisation of the ice sheets is set to become more likely beyond 1.5°C, entailing risks of much greater sea-level rise in the future. Professor Payne further outlined the strikingly severe consequences for coral reefs of the two temperature thresholds, with projections that at 2°C all coral in the oceans will die, while by limiting temperature to 1.5°C, some 10-30% of coral will survive. Reefs are not only crucial for the maintenance of healthy marine ecosystems, but also for the millions of people around the world who depend upon those ecosystems for their food security and livelihoods.

Cabot Annual Lecture 2018
Professor Tony Payne

A call for action

Against these stark warnings on the significance of limiting global temperatures to 1.5°C, Dr Jo House outlined some key recommendations for how we can get on track. The IPCC report sets out a number of pathways for action, each calling for changes across a broad spectrum of policy sectors with the aim of rapidly reducing greenhouse gas emissions and enhancing the absorption of existing carbon in the atmosphere. These changes include moving away from fossil fuels to renewable sources of energy, greening the transport sector, replanting forests, and investing in carbon capture and storage technologies. Dr House underlined the importance of action at all levels of governance to meet these goals. At the national level in the UK under the provisions of the Climate Change Act we are already committed to an 80% reduction on 1990 levels by 2050, while at the city level in Bristol, the Climate and Energy Security Framework commits to the same target, with a 50% reduction to be achieved by 2025.

Cabot Annual Lecture 2018
Dr Jo House

This action in climate policy is increasingly being driven by sub-state actors and Dr Alix Dietzel highlighted the crucial role that local government, civil society groups, citizens initiatives, corporations, and individuals are playing in this. Dr Dietzel expressed cause for hope in the reaction of sub-state actors to the announcement of the withdrawal of the United States from the Paris Agreement, with the ‘WE ARE STILL IN’ movement garnering support from city mayors, governors, tribal leaders, universities, and businesses for continuing commitment to the Paris goals. At the individual level, the actions we can all take within the boundaries of our own capabilities were discussed, outlining our capacity to affect change through our consumption and lifestyle choices. The need to consider the ethical questions surrounding our responsibilities as individuals and global citizens remains crucial, particularly in light of the disproportionately harmful effects that climate impacts will have upon those who have contributed least to the problem.

Cabot Annual Lecture 2018
Dr Alix Dietzel

The risks of inaction on the 1.5°C threshold were balanced against the opportunities and benefits of action by the panel. The successful lobbying efforts of climate-vulnerable states to embed the 1.5°C threshold within the Paris framework, alongside the commitment of many governments and sub-state actors to meet it, are cause for hope but we still have a long way to go.

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This blog was written by Cabot Institute member Alice Venn, a PhD Candidate in Environment, Energy & Resilience at the University of Bristol’s Law School.

Alice Venn

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