Bold Climate Rulings Beyond Our Borders
Courts in other Western countries are stepping up to the climate challenge.
The atmosphere for climate litigation in our Supreme Court is decidedly chilly. Some of its peers in other countries have taken a much different approach. US lawyers tend to be inward focused, adept at understanding our own legal system but largely unaware of developments elsewhere. Here, I want to briefly summarize some key rulings.
Germany. In a pathbreaking opinion, the German Constitutional Court ordered the government to adopt much stricter emissions targets for 2030. Those targets are to be keyed to achieving the Paris Agreement’s goal of keeping climate change below 2 °C and as close to 1.5 °C as possible. The German ruling was based on two constitutional provisions. One provision protected the right to life and physical integrity. Another required the state, “mindful also of its responsibility toward future generations: to protect the “natural foundations of life and animals.” By taking weak initial measures, the government hadn’t entirely precluded the possibility of compliance with the Paris target. However, such drastic measures would be required after 2030 as to seriously impair the lives of that generation, violating the government’s responsibilities toward the future.
France. France’s highest administration court, the Court of Cassation, has given similar marching orders to its government, though on different legal grounds. It based its ruling on a French law, which said that “any person responsible for ecological damage is obliged to remedy it.” It also relied on a constitutional provision requiring every person to prevent or limit damage to the environment.
The Netherlands. A Dutch trial court ruling in the Urgenda case created worldwide news by ordering the government to adopt a more ambitious climate plan. That was the first in a series of rulings, including the one above. There was less of a stir when the Dutch Supreme Court upheld the ruling, imposing requirements much like those in Germany and France.
In the meantime, a Dutch trial court has once again taken the global lead in climate litigation. It ordered Shell Oil, which is based in the Netherlands, to move rapidly to decarbonize its own operations and avoid selling products that would lead to carbon emissions — natural gas and gasoline, more specifically. Specifically, the court ordered Shell to cut emissions due to its products and operations 45% from 2019 levels by 2030. It remains to be seen whether the appeals and supreme courts will uphold the trial court, as they did in Urgenda.
These courts have gone where, so far, U.S. courts have filed to tread. Indeed, to a U.S. lawyer, some of these rulings may seem startling. In my next post, I’ll discuss some of the reasons for this different outcomes.
Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…READ more