In the words of Thomas Jefferson:
The first duty of government is the protection of life, not its destruction. Abandon that, and you have abandoned all.
If governments fail to take appropriate action against climate change they are failing in this first duty, and may be legally accountable to their citizens.
Governments, public authorities and the rule of law
The UN General Assembly has issued a ‘Declaration on the Rule of Law at the National and International Levels’ which states:
We … recognize that all persons, institutions and entities, public and private, including the State itself, are accountable to just, fair and equitable laws.
In the US, the Supreme Court confirmed the principle of the rule of law in the case of Marbury v Madison (1803) as follows:
The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
Governments and public authorities must act within the law, and, if they fail to do so, may be challenged through the courts.
It is the first responsibility of governments to safeguard the welfare of their citizens, including by taking reasonable measures to mitigate substantial threats. Climate change is a grave threat to people around the world, jeopardising health, security and prosperity. If governments fail to take reasonable and rational measures to safeguard against it, or take actions which increase the threat, they may be called to account through the judicial process.
In the last year individuals and citizen platforms have successfully challenged government actions in the US, the Netherlands and Pakistan; and commenced similar claims in Belgium and New Zealand.
The scope of judicial review
Judicial review is the process through which the courts review the legality of public authority actions and, in some jurisdictions, of primary legislation.
In most jurisdictions the courts can review:
- the administrative acts of public bodies (such as a decision to grant or withdraw a subsidy or to permit a proposal for fracking); and
- secondary legislation (for example, rules about greenhouse base emissions made further to primary legislation).
Many jurisdictions (including the US) allow judicial review of primary legislation, on the basis the legislation contravenes constitutional rights. Even in jurisdictions which assert ‘the sovereignty of Parliament’ (such as the UK) primary legislation may be challenged on the basis of inconsistency with the constitution or with fundamental human rights (under the UK’s Human Rights Act 1998, for example, a court may issue a ‘declaration of incompatibility’ between a protected right and another Act of Parliament).
Substantive and / or procedural challenges
Judicial review may be brought on the basis that the decision of a public authority is substantively or procedurally flawed (or both).
A substantive challenge asserts that a particular decision or policy is illegal per se, e.g.:
- that the government emissions reductions target is inadequate and therefore a breach of its duty of care;
- that a public pensions authority is acting irrationally in investing in fossil fuels;
- that a government regulator has failed to enforce corporate requirements to disclose accurate information regarding climate change risk; or that
- a government body has taken insufficient steps to protect its citizens from climate change-induced flooding.
A decision or policy may also be challenged on the basis of procedural irregularity, e.g.:
- a failure to consult appropriately regarding a permission to conduct fracking;
- a failure to consider relevant information in establishing a GHG emission reduction plan; or
- a failure to consider the impact on climate change of a new infrastructure project.
Duty of care / positive human rights obligations
It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. This principle may be given legal effect in different ways in different jurisdictions. In general terms, however, where there is a foreseeable risk of substantial harm, a government will be under a duty of care to take reasonable steps to safeguard its citizens against that harm, and failing to take such steps will constitute a breach of that duty.
Governments and public authorities must also act in accordance with fundamental human rights. The Preamble to the Paris Agreement affirms this principle to the context of climate change:
Parties should, when taking action to address climate change, respect, promote and consider their … obligations on human rights …
Not only must governments avoid infringing human rights (such as the right to life or the right to family life), in certain circumstances they must take positive steps to safeguard those rights (i.e. even when the rights are threatened by other (private) persons or activities that are not directly connected with the State).
Many people are dying already from climate change and air pollution. If governments fail to take reasonable, proportionate action to tackle climate change they are also failing to take reasonable steps to uphold the right to life.
The public trust doctrine
The public trust doctrine defines inherent aspects of sovereignty. The Social Contract theory, which heavily influenced Thomas Jefferson and other US Founding Fathers, provides that people possess certain inalienable rights and that governments were established by consent of the governed or the purpose of securing those rights. Accordingly, the US Declaration of Independence and the Constitution did not create the rights to life, liberty, or the pursuit of happiness – the documents are, instead, vehicles for protecting and promoting those already-existing rights.
In its broadest sense, the term “public trust” refers to the fundamental understanding that no government can legitimately abdicate its core sovereign powers. See Stone v. Mississippi, 101 U.S. 814, 820 (1879) (“[T]he power of governing is a trust committed by the people to the government, no part of which can be granted away.”)
The doctrine asserts that the sovereign or government holds certain natural resources in trust for the public. With respect to these core resources, the sovereign’s public trust
obligations prevent it from “depriving a future legislature of the natural resources necessary to provide for the well-being and survival of its citizens.”
Application of the public trust doctrine to natural resources predates the United States of America. Its roots are in the Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the “foundation for modern civil law systems.” Timothy G. Kearley, Justice Fred Blume and the Translation of Justinian’s Code, 99 Law Libr. J. 525, if 1 (2007). The Institutes of Justinian declared:
“the following things are by natural law common to all – the air, running water, the sea, and consequently the seashore.”
J. Inst. 2.1.1 (J.B. Moyle trans.). The doctrine made its way to the
United States through the English common law. In Britain, this principle was reflected in the Magna Carta; in the US, the Supreme Court upheld it in the case of llinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892) (the court annulling the purported transfer of a large part of Chicago Harbour to the Illinois Central Railroad Company):
“The state can no more abdicate its trust over property
in which the whole people are interested, like navigable waters and soils under them … than it can abdicate its police powers in the administration of government and the preservation of the peace.”
The natural resources trust operates according to basic trust principles, which impose upon the trustee a fiduciary duty to “protect the trust property against damage or destruction.”George G.Bogett et al., Bogert’s Trusts and Ttustees, § 582 (2016). The trustee owes this duty equally to both current and future beneficiaries of the trust.
The government, as trustee, has a fiduciaty duty to protect the
trust assets from damage so that current and future trust beneficiaries will be able to enjoy the benefits of the trust. Id. The public trust doctrine is generally thought to impose three types of
restrictions on governmental authority:
- [F]irst, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public;
- Second, the property may not be sold, even for a fair cash equivalent; and
- Third, the propetty must be maintained for particular types of uses.
The public trust doctrine may be invoked to require governments to safeguard the climate generally, and to prevent damaging levels of air and ocean pollution.
Relevance of treaty / international law obligations
States have assumed commitments under the UNFCCC process, including a commitment to limiting warming to 1.5 or ‘well below’ 2 degrees Celsius. International law generally creates obligations only between states, but where obligations ‘connect one and all’ (are erga omnes) they may apply more widely (see e.g. Article 93 of the Dutch Constitution). The obligation to prevent climate change may be considered an obligation which ‘connects one and all’.
In any event, it may be assumed that states wish to respect their international law obligations. This means that when applying and interpreting national-law standards and concepts, including reasonableness, the general interest or other legal principles, courts should take account of such international-law obligations. Thus international law obligations have a ‘reflex effect’ in national law.
Challenging your government’s GHG emission reduction plans
Governments have agreed that warming must be limited to between 1.5 and ‘well below’ 2 degrees Celsius. No government is likely to contend that warming can safely exceed 2 degrees Celsius.
Accepting that governments are under an obligation to take reasonable steps to protect their citizens from climate change, that obligation may be further particularised as follows:
Governments are under an obligation to their citizens to take reasonable steps to keep global warming to 1.5 degrees Celsius, or at least to ‘well below’ 2 degrees Celsius.
Given that it is the aggregate effect of emissions from all countries which determine future warming, there is some complexity to determining what ‘reasonable steps’ entails for any one country. There is grave danger, however, in an approach which reasons ‘because everyone is responsible no-one is responsible‘, and, as evidenced by the Dutch Court in the Urgenda case, courts will identify principles for determining an equitable share of the collective responsibility.
In Urgenda the court focussed on the conclusion from the 4th Assessment Report of the IPCC, that greenhouse gas concentrations would need to stabilise at 450 parts per million (ppm) for a 50% chance of limiting warming to 2 degrees Celsius (a fact not disputed by the Parties), stating that (at 4.83):
Now that at least the 450 scenario is required to prevent hazardous climate change, the Netherlands must take reduction measures in support of this scenario.
The court referred to an IPCC assessment that to achieve such a stabilisation ‘Annex 1 countries’ (which include the Netherlands) would need to cut their emissions by 25-40% by 2020, compared to 1990. Since the policy of the Dutch government, at the time of the action, left it on course for reductions of a maximum of 17% by 2020, the court ruled it inadequate, and ordered it to ensure its emissions were reduced by at least 25% by 2020 (i.e. compared to the baseline of 1990).
The analysis might be simplified if the court proceeded as follows:
i) identify the global ‘carbon budget’ consistent with the temperature goal (IPCC AR5 suggests 1000 Gigatonnes of CO2, as from 2010 for a > 66% chance of limiting warming to 2 degrees Celsius);
(ii) identify the country’s fair share of that budget;
(iii) plot a rational distribution of that budget over time.
Standing to bring claims / costs
In general terms, the test for whether a party has ‘standing’ (or locus) to bring a legal claim is whether they have a ‘sufficient interest’ in the subject of the action, i.e. whether they are specifically affected by the illegality they allege.
Everyone has an interest in a safe climate. There is a danger that this distribution of interest leads to the ‘tragedy of the commons’, i.e. where a common resource is shared, no one person has sufficient responsibility, motivation and resource to look after it and to compete with the vested interests that threaten it. This may be particularly so in countries which lack the resources to support effective enforcement organisations.
The danger has long been recognised in connection with environmental protection more generally, and international law encourages ‘access to environmental justice’.
The Rio Declaration, Principle 10, for example states that:
Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
The Aarhus Convention 1998 requires parties to adopt a broad approach to standing in environmental cases, Article 9(2) stating that ‘sufficient interest’ should be determined:
… consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention.
The Convention also provides that NGOs, promoting environmental protection, and meeting national la requirements, shall be deemed to have ‘sufficient interest’ and ‘rights capable of being impaired.’
Article 9(4) on the Convention requires that procedures should be:
fair, equitable, timely and not prohibitively expensive.
Further to the Convention, countries may introduce costs protection for citizens or organisations bringing judicial reviews in the public interest. In the UK, for example, the Court may order a ‘protective costs order’ where:
- The issues raised are of general public importance;
- The public interest requires that those issues should be resolved;
- The applicant has no private interest in the outcome of the case;
- Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
- If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so.
- If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
- It is for the court, in its discretion, to decide whether it is fair and just to make the order in light of the considerations set out above.
See: R (Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192. Corner House is an anti-corruption NGO who were initially refused a protective costs order for a judicial review they were bringing against the Export Credits Guarantee Department. The Court of Appeal reversed that decision explaining that if they had not granted the PCO:
…issues of public importance that arose in the case would have been stifled at the outset, and the courts would have been powerless to grant this small company the relief that it sought.
See: Access to Justice