Climate Change is Global but Judicial Solutions are not

By: Max Matiauda, November 27, 2021

The recent CoP26 climate summit invited substantial criticism by failing to adopt sanctions on, require compensation from, or create liability for major greenhouse gas polluters. This was not for lack of demand, however, as the Least Developed Countries (LDC) and youth groups spent their press conferences describing the mounting costs faced by vulnerable groups as climate change erodes shores and spikes heatwaves, as well as the failure of CoP countries to deliver on past promises. Those grievances reflect efforts around the world of vulnerable and affected groups to seek compensation from major polluters for the increasingly hostile climate.

One such demand came from a youth coalition—led by Greta Thunberg—which filed a lawsuit with the United Nations against major countries for failing to uphold their obligations under the Convention on the Rights of the Child (CRC). This case theorized that the defendant nations had failed to uphold the rights of children to “life, health, and peace” under the CRC by inadequately curtailing climate change. The UN Committee on the Rights of the Child (UNCRC) agreed with the plaintiffs’ allegations but struck down the lawsuit on procedural grounds, denying any action from the UN until such plaintiffs exhaust their claims in national courts. Combined with inaction and missed deadlines from CoP26, the international community has made clear that the judicial battle against climate change will take place domestically. 

Climate change civil litigation in the United States—which currently has over 1,000 pending climate lawsuits—forecast the approach taken by the UNCRC in 2021. The first lawsuits against private and public polluters—later termed the “First Wave”—began in 2005 and largely focused on halting further pollution by way of legal injunction. Plaintiffs of the First Wave included the Alaskan city of Kivalina, much of which has been swallowed by sea level rise (SLR) as a result of climate change; and residents of Mississippi whose homes were destroyed by the especially powerful Hurricane Katrina. As with the UNCRC this year, the Supreme Court of the United States during the First Wave acknowledged that “harms associated with climate change are serious and well recognized” and clearly stated that GHG polluters are directly responsible in part for climate damages. Also like the UNCRC, the Supreme Court and others shut down the First Wave on procedural grounds and political deference, insisting that these grievances be raised with the administrative state. The Second Wave emerged in 2017, characterized by municipalities seeking compensation from corporate polluters (rather than private plaintiffs seeking injunction of polluting) and with legal strategies meant to avoid preemption of the claims by federal regulation. Four years later, none of these cases has reached the merits, as defendants wage lengthy procedural battles to prevent court consideration of the issues themselves.

EU developments suggest the correct approach may be to hold the government accountable for regulating private companies, rather than seeking money from industry polluters themselves. In 2019, the Supreme Court of the Netherlands upheld the 2015 victory of a Dutch environmental group suing its government for failing to reduce GHG emissions despite an obligation to do so. Citizens of other countries around the world followed suit and since 2020 have won declarations of governmental responsibility—sometimes inadequacy—in Belgium, France, Germany, Ireland, and non-EU countries like Australia, Colombia, and Pakistan. These rulings are largely declaratory, however, rather than requiring specific action from polluters. Netherlands again leads the charge in this respect, with a 2021 decision ordering Royal Dutch Shell—among the largest private GHG polluters—to halve its global carbon emissions within ten years. Climate activists hope the nations of the world again follow suit.

While these victories seem promising, considerable issues remain. The declaration of climate rights by the Australian courts involved the rights of youth specifically, showing support for the ideals failed Thunberg UN lawsuit. However, the National Green Tribunal in India dismissed a similar case, holding that an act from 1986 has done enough for children’s climate rights. LDCs continue to find little redress, as declarations from their own courts would hold little sway over major polluters—China and the U.S. among them—who have escaped actions like the Thunberg suit by refusing to ratify the CRC and other documents of responsibility. Further telling is the fact that within days of the LDC press conference calling out a lack of transparency at CoP26, the U.S. and China made a deal behind closed doors that greatly influenced proceedings. As political consensus grows on assigning responsibility to climate change, the safety of vulnerable populations and the obligations of rich polluters to them remain open questions.

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