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.
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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…
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Interesting post as usual! I wonder to what extent the Dutch court ruling against Shell played in their plans to move/consolidate corporate headquarters into the UK http://www.bbc.com/news/business-59288593 . Maybe little, maybe a lot. Regardless, Shell will have to change – they can run from the Netherlands, but they can’t hide from climate change.
That decision has been expected for years, and is mostly driven by tax considerations, the desire to buy back shares and to simplify the dual structure. The move will not impact the ongoing court proceeding (Dutch court remains competent) and the ruling remains enforceable.
Actually, the District Court of Oregon issued a favorable ruling in Juliana v US, which alleges violations of due process and the public trust doctrine.
Judge Aiken denied a motion to dismiss by the Obama Justice Department, but a split 3 judge panel (all Obama appointees) of the Ninth Circuit dismissed the complaint on appeal by the Trump Justice Department. The plaintiffs, Our Children’s Trust, then filed an amended complaint and that pleading is now pending after settlement talks with the Biden Justice Department failed.
The future of this case remains to be seen, but the ruling of District Court Judge Aiken and dissenting opinion of Ninth Circuit Judge Staton suggest that the European court rulings are less than startling. As UCLA Law Professor Cara Horowitz noted, the Ninth Circuit opinion agrees that these kids have been injured and it also agrees that there’s a good chance that the US government is to blame (even though it dismissed the complaint for lack of standing).
Others, including Yale Law Professor Dan Esty, have stated that Juliana may be opening the door to future litigation and that “another court might take the starting point of this decision and take it in a different direction . . . this is where courts really have to exercise the kind of special role that a non-political branch of government is best positioned to play.”
Dear Jai – You’re right, of course, about the district court opinion in Juliana and that the Ninth Circuit expressed some sympathy with that argument while dismissing the case on standing grounds. Given the current make-up of the Supreme Court, however, I find it impossible to believe that the 6-3 conservative Court would agree. It also seems extremely unlikely that there will be a radical shift in the membership of the Court in the next decade, possibly even longer.
These are interesting cases to follow whether in the Netherlands or the US. Issues to watch would be constitutional grounds to bring an action and standing, among other things. One way or another, climate change litigation is here to stay for the short term. Bashar Malkawi