April 29, 2019

If not us, then who? If not now, then when?

I wonder if those are questions that the youth of this small blue planet asked themselves when they made the courageous decision to enter the very adult world of litigation in a last-ditch effort to save their future. Youth speak eloquently and passionately at local, national and international venues, they leave their schools to march collectively for climate action, they draw on their social media savvy to try to make the point, and yet they are not heard. So, the youth who will live to deal with the consequences of our indecision and lack of action are going to court.

Why are they so frustrated?

After nearly three decades of agreements, treaties and targets, the world is still nowhere near where it should be when it comes to reducing green-house gas emissions. Since 1992 and the adoption of the United Nations Framework Convention on Climate Change, there have been numerous efforts to coordinate global action on emissions reduction.

The Kyoto Protocol in 2002 was the first treaty with the goal to stop climate change by obliging developed countries—the ones whose industrial activity was historically responsible for what had accumulated to date—to reduce their emissions. The goal was to limit global warming to no more than 2ºC above pre-industrial levels. Countries signed on, but most made little progress in cutting emissions.[1]

Next was the Copenhagen Accord in 2009, where governments again promised reductions by 2020, but again targets will not be achieved.[2]

In 2015, governments signed the third international agreement, the Paris Agreement, pledging to keep the increase in global average temperature to “well below” 2ºC above pre-industrial levels by 2100, and ideally to limit the increase to 1.5ºC to help protect low-lying nations that were already experiencing the effects of rising sea levels.[3]

We have witnessed 27 years of countries making virtually the same commitment with no real results. The lack of progress means that to achieve the Paris Agreement goal, greenhouse gas emissions must be reduced rapidly and brought to net zero by around 2050.[4] In 2050, most of today’s decision-makers will be at or near the end of their lives, but my daughter, who is 16 today, will be only 46, and her generation will be left to make the decisions. Looking toward that future, frustration appears to be a more than reasonable reaction.

Why go to court?

In 2015 a group of 886 Dutch citizens won the first-ever climate-based law suit. On behalf of these citizens, the Urgenda Foundation went to court to prove that the Dutch government failed to meet its obligation to prevent climate change.[5]  The Dutch Supreme Court had consistently upheld the principle that the government can be held legally accountable for not taking sufficient action to prevent foreseeable harm.[6]

In this landmark decision, the District Court of The Hague held the Dutch government accountable and ordered the government to reduce greenhouse gas emissions by at least 25% (based on 1990 levels) by 2020. The Dutch government appealed the decision, but in October 2018 it was upheld by the Hague Court of Appeal. Although the Dutch government continues to fight its legal obligations to act on climate change, reports out of Netherlands indicate that government is working to reduce emissions and is currently on course to reduce CO2 emissions by 23% by 2020.[7]

And so, it begins…

Shortly after the success of the Dutch case, the world’s first-ever Youth Climate Lawsuit was launched. In 2015, 21 young plaintiffs, led by Kelsey Juliana, filed a lawsuit against the United States federal government in the US District Court for the District of Oregon. The plaintiffs, represented by the non-profit organization, Our Children’s Trust, assert that the government violated their constitutional rights of life, liberty, and property by allowing, encouraging, and enabling activities that have caused climate change.[8]

In this case, youth are drawing on the public trust doctrine and the principle of intergenerational equity. The public trust doctrine—a principle with roots dating back to Roman law—recognizes the responsibility of governments to act as trustees of common public resources such as fisheries, parks, and waters, which are vital to the welfare and survival of present and future generations.[9]

The principle of intergenerational equity states that every generation holds the Earth in common with members of present and future generations and that the Earth and its resources should be passed on in good condition.[10]

The original trial date for the Juliana case was set for October 29, 2018. The Trump administration has made multiple attempts to avoid a trial or delay proceedings, with mixed success. The trial did not proceed on October 29 but preparations for trial continue. In the face of the delay, youth launched Zero Hour to bring the case and its importance to public attention. More than 32 000 youth under the age of 25 are participating.[11]

And here at home…

In November 2018, ENvironnement JEUnesse, on behalf of Quebecois aged 35 and under, launched a class action law suit against the Canadian government. The suit, brought before the Superior Court of Quebec, alleges the government has infringed on an entire generation’s fundamental rights because greenhouse gas emission reduction targets are not ambitious enough to avoid runaway climate change and because there is currently no plan in place to achieve even the inadequate target.[12]

ENvironnement JEUnesse is basing its case on the Canadian Charter of Rights and Freedoms and on the Quebec’s Charter of Human Rights and Freedoms. The Canadian Charter protects the right to life, liberty, and security of the person. The Quebec Charter includes a right to live in a healthful environment in which biodiversity is preserved and protected.[13] A Quebec Superior Court judge will now have to decide whether to authorize the class action before the group can move forward with a trial.[14]

So, what happens next?

Litigation is slow and decisions in all of these cases are still pending. The Dutch government has launched a second appeal of the decision in Urgenda v. Netherlands. The initial trial date for the Youth Climate Lawsuit in the United States is yet to be set. A Quebec Superior Court judge must certifiy the class action by Environnement JEUnesse before it can proceed. Going to court is not only slow: it is complicated, expensive and uncertain. Despite the challenges, youth and adult citizens are signing up to launch climate suits all over the world, including in New Zealand, India, Switzerland, France, and Belgium. [15] The clock is ticking.

Notes

[1] Kyoto Protocol, online: unfccc.int/process#:2cf7f3b8-5c04-4d8a-95e2-f91ee4e4e85d

[2] Copenhagen Accord, online: unfccc.int/resource/docs/2009/cop15/eng/l07.pdf

[3] Paris Agreement, online: unfccc.int/process#:a0659cbd-3b30-4c05-a4f9-268f16e5dd6b

[4] IPCC Special Report Global Warming of 1.5 degrees celcius, Summary for Policy Makers at C.1 www.ipcc.ch/sr15/chapter/summary-for-policy-makers/

[5] Urgenda Foundation v. The State of the Netherlands, C/09/456689/HA ZA 13-1396 (24 June 2015).

[6] Dianne Saxe & Kirsten Mikadze, “The Dutch Climate Case: Beginning of a New Era of Climate Litigation?” (2015) online: www.slaw.ca/2015/08/21/the-dutch-climate-case-beginning-of-a-new-era-of-climate-litigation/

[7] DutchNews.nl “Appeal court upholds Urgenda ruling – government must cut CO2 by 25%” (2018) online: www.dutchnews.nl/news/2018/10/appeal-court-upholds-urgenda-ruling-government-must-cut-co2-by-25/

[8] Juliana v. United States, Case No. 6:15-cv-01517-TC, United States District Court, D. Oregon.

[9] Siskinds, “Promising development in US climate change litigation” (2016) online: www.siskinds.com/envirolaw/promising-development-us-climate-change-litigation/

[10] Oxford Public International Law, online: opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1421

[11] Our Children’s Trust, “JULIANA v. U.S. CLIMATE LAWSUIT” (2018) online: www.ourchildrenstrust.org/juliana-v-us

[12] ENvironnement JEUnesse, “ENvironnement JEUnesse vs Canada – EN” (2018) online: enjeu.qc.ca/justice-eng/

[13]  Trudel, Johnston & Lespérance, “Ongoing Class Actions: CLIMATE CHANGE” (2018) online: tjl.quebec/en/class-action/climate-change/

[14] Canada’s National Observer, “Quebec youth apply to sue Canada to get tougher carbon pollution targets” (2018) online: www.nationalobserver.com/2018/11/26/news/quebec-youth-apply-sue-canada-get-tougher-carbon-pollution-targets 

[15] For details on other climate cases around the world see: www.urgenda.nl/en/themas/climate-case/global-climate-litigation/