A Possible Path Forward for Global Climate Change Litigation

Maria L. Hodge. Maria Hodge is a JD Candidate (2021) at the Sandra Day O’Connor College of Law at Arizona State University, with interests in federal and state legislative policy, and international human rights law. She is an IRLS Fellow during the 2019-2020 academic year.

This summer, I am interning with the Commission on Human Rights in the Philippines, researching global litigation and legislation related to climate change and human rights. The following is a brief report of the development of climate change litigation based on human rights principles and how these cases signal the path forward for future litigation.

What is the current view of climate change as it affects international human rights law?

In recent years, it has become widely accepted that climate change is real and that human-made greenhouse gas emissions are its primary cause. Furthermore, a state’s neglect of its climate change obligations has been recognized as a violation of fundamental human rights. The effects of climate change directly threaten human rights around the world, and states have an obligation to mitigate this harm, according to the UN Human Rights Council, the Office of the High Commissioner for Human Rights, the United Nations Environment Programme, and the Center For International Environmental Law. The obligation for state action has also been incorporated into international law through treaties, such as the Kyoto Protocol and the Paris Climate Agreement. The broader application of this obligation under customary international law remains speculative.

What are the current trends in climate change litigation related to human rights?

Since the enactment of the Paris Climate Agreement in 2016, litigation on climate change and human rights has increased dramatically as plaintiffs have attempted to hold their governments to their domestic and international commitments. These cases are typically filed by concerned citizens or non-governmental organizations seeking increased environmental protections to safeguard their fundamental human rights. In the past, courts often sided with government institutions. This occurred in Family Farmers and Greenpeace Germany v. Germany, where the court found that Germany’s 2020 emissions reduction goals, as set in the 2014 Climate Protection Plan, did not constitute a legally binding obligation because the plan failed to state specific policy goals.

Despite these setbacks, plaintiffs have received some favorable rulings in more recent cases, opening the door for potentially successful litigation in the future.

One of the most significant rulings was The State of the Netherlands v. Urgenda Foundation, from the Supreme Court of the Netherlands. Decided in 2019, the Dutch Supreme Court found that the government had a human rights obligation to protect the environment on behalf of its citizens. The court recognized that climate change was a “genuine threat” and that the emission of greenhouse gases was a contributing factor. The court agreed that the European Convention on the Protection of Human Rights and Fundamental Freedoms placed an obligation on states to act in order to prevent future harm to the planet.

The Urgenda case initiated a wave of new litigation against governments for environmental harm based on human rights principles. Trends in recent cases include pleadings filed by minors seeking climate justice for future generations and claims filed by indigenous populations advocating for the right to a clean and healthy environment. Although many subsequent cases were unsuccessful in securing their requested remedies, they provide useful information for future plaintiffs.

One such case is Juliana v. United States, which was decided by the U.S. Ninth Circuit Court of Appeals in 2020. 947 F.3d 1159 (9th. Cir. 2020). In Juliana, a group of young plaintiffs brought a claim against the U.S. federal government for violating their constitutional rights by encouraging the use of fossil fuels. The plaintiffs requested a court order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”

The court in Juliana ruled 2-1 in favor of the defendant due to the plaintiffs’ lack of standing. The court “[r]eluctantly” found that the plaintiffs’ claim was not redressable based on the principles of Article III standing and the political question doctrine, which prevents the judiciary from making policy decisions that should instead be left to the legislative and executive branches. Id. at 1165-1171. “To establish Article III redressability, the plaintiffs must show that the relief they seek is both (1) substantially likely to redress their injuries; and (2) within the district court’s power to award.” Id. at 1170. Based on this standard, the court held that it did not have the power “to order, design, supervise, or implement the plaintiffs’ requested remedial plan.” Id. at 1171.

Despite this unfavorable ruling, the plaintiffs were able to persuade the court of a few key arguments. First, the court acknowledged that the extensive record presented by the plaintiffs left “little basis for denying that climate change is occurring at an increasingly rapid pace.” Id. at 1166. Second, the court also recognized that this record “conclusively establishes that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions” yet took action to promote and encourage its use. Lastly, the court recognized the plaintiffs had standing to sue for the “infringement of a Fifth Amendment due process right to a “climate system capable of sustaining human life.’” Id. at 1165.

In the dissent, Judge Stanton rejected the redressability arguments of the majority, arguing instead that the plaintiffs should be owed some sort of remedy to prevent the “Nation’s willful destruction.” Id. at 1175. Furthermore, since the claim pertains to a fundamental right protected under the U.S. Constitution, the court should not feel obligated to wait for legislative action. Id. at 1180.

What will future trends in successful climate change litigation look like in the U.S.?

While the Juliana plaintiffs were unsuccessful in forcing government action to address climate change, this may have been a temporary setback. Following the decision, the plaintiffs in Juliana have appealed for a rehearing en banc (in front of a larger panel of the Ninth Circuit).

Overall, the cases discussed in this post established some successful arguments while also identifying room for improvement. In future cases, plaintiffs in the U.S. should implement the following strategies. First, to avoid the redressability issue, plaintiffs should base their requested remedies on procedural law, such as the Administrative Procedure Act. This approach was mentioned by the court in Juliana. There, the court stated that procedural claim, such as the one filed in Massachusetts v. EPA, could be remedied “without meeting all the normal standards for redressability.” Id. at 1171. In Juliana, the plaintiffs brought a substantive due process claim. This meant the court was held to the full Article III redressability standard and therefore could not provide the plaintiff’s requested remedy. Id.

Second, plaintiffs should request a remedy that is narrowly tailored to their harm. By introducing a specific, actionable solution for the courts to adopt, such as overturning an existing statute, plaintiffs could further mitigate issues surrounding redressability or the political question doctrine.

Last, plaintiffs, when possible, should bring claims in other jurisdictions around the world. It may be easier to bring climate change litigation in foreign jurisdictions, since many other states have adopted a broader application of their standing doctrine. Overall, the harms of climate change are widespread and diverse, resulting in numerous opportunities for additional litigation.

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