Reposted by MANHATTAN CONTRARIAN
August 29, 2021 / Francis Menton
With a long career in litigation, I have a keen understanding of the limits of what can be achieved through litigation. Among litigators, the line “Let’s sue the bastards” is always good for a laugh, in repentant acknowledgment of the tremendous effort that can be put into small or even negative outcomes.
But the green environmental movement seems to have almost infinite resources as well as legions of followers filled with insane religious zeal. When someone blurts out, “Let’s sue the bastards,” the funding comes in immediately, and ideological lawyers line up to compete for the performance.
So these guys somehow got the idea to sue national governments over the theory that “basic human rights” are threatened by climate change. Would this accusation be enough to induce one or a few judges to order the judicial takeover of entire economies in order to force a reduction in CO2 emissions? Perhaps that seems to you to be a type of question that is essentially outside the jurisdiction of the judiciary. If so, you may not understand how far the judiciary here and in Europe is from the ideological cliff. Fortunately for us, this topic is even more sensible here in the US than in Europe.
Here is an update on litigation on the matter, both here and in Europe.
United States
The most important of these cases in the United States is Kelsey Cascadia Rose Juliana v United States et al. In 2015, Ms. Juliana and twenty other plaintiffs, mostly teenagers who were teenagers at the time, sued the federal government for a restraining order to end the use of fossil fuels in the United States. Plaintiffs alleged that the use of fossil fuels violated their rights under the due process clause of the Fifth Amendment and the equality clause of the Fourteenth Amendment. I first covered the case in this post in December 2017 when the then-new Trump administration tried to get the Ninth District to issue a mandate order to get the Oregon District Court to dismiss the case. This attempt was unsuccessful.
However, over two years later, in January 2020, the case again reached the Ninth District, this time on the basis of a certified interim appeal against the district court’s rejection of a government motion for summary judgment. As I reported in this post on Jan. 18, 2020, a three-judge panel of the Ninth District composed entirely of Obama-appointed individuals ordered the trial dismissed, largely for the (apparently correct) reasons of not -Justiciability. Here is the key language of the Ninth Circle’s decision:
There is much to be said for adopting a comprehensive system to reduce fossil fuel emissions and combat climate change, both as a political issue in general and as a question of national survival in particular. However, it is beyond the powers of an Article III court to order, draft, oversee or implement the remedial plan requested by plaintiffs.
But, as I noted in the January 2020 post, the US only narrowly escaped the disaster in this case. The Ninth Ward ruling was taken 2-1, and the dissenting judge – Josephine Staton of the Central District of California, who sat by nomination – came up with the idea that a single judge could order the entire order with this case as a vehicle, completely restructuring the US economy. From the opinion of the dissenting judge:
[C]Carbon dioxide (“CO2”) and other greenhouse gas (“GHG”) emissions from burning fossil fuels are devastating the planet. . . . [T]he injuries to plaintiffs are the first small wave of a coming tsunami – now on the horizon of the not-too-distant future – that will devastate the United States as we know it today. . . .
Anyway, do you think the January 2020 Ninth District Council opinion would end the matter? Barely. The plaintiffs first submitted an application to the Ninth District for a so-called “trial en banc”, which would mean a hearing by all active judges of the court (29 of them) and not just by the three-member panel. But the Ninth District rejected that request in February 2021. At that point, plaintiffs could have moved for a review by the US Supreme Court, but they read the tea leaves of the current court and decided that it wouldn’t be a good bet.
Instead, they went back to the Oregon District Court – clearly a sympathetic forum – and asked for permission to amend their lawsuit. Trying to amend your complaint after the appeals court ruled the case unjustified is, say, bold. But of course the Oregon court held a hearing on June 25th and has not yet made a decision. To get an idea of how the June 25 argument went, here are the opening lines of the Attorney General’s argument for the plaintiffs:
Your honor, how the children and adults of our nation speak, move, love, choose, worship, assemble, learn, and conduct, depend on the rights we have and those denied us.
Impressive. Deep. And now the latest: In this dismissed case by the appellate court, in which any further appeals review is precluded by failure to submit an application to the Supreme Court in a timely manner, it is said that the plaintiffs and the government are discussing settlement. The state of Alabama has petitioned on its own behalf and a coalition of other Red States to intervene to challenge what they see as an extreme risk of collusive settlement by our current administration. The last submission for this application was on July 20th. Subsequently, the plaintiffs confirmed that they are aiming for “a fundamental transformation of the energy system of this country” through the settlement negotiations.
I find it hard to believe that a collusive deal to “transform the country’s energy system” after the case is lost and all opportunities for appeal are ruled out could possibly stand. On the other hand, these people will try anything.
Europe
In 2015, an environmental group called Urgenda, along with around 900 Dutch citizens, filed a lawsuit in the national courts of the Netherlands, the case of which is very similar to the Juliana case in the United States. The original documents in the case all appear to be in Dutch, but there is an English summary on the ClimateCaseChart.com website. The defendant in this case is the Dutch government. According to the summary, the plaintiffs called on the Dutch government to “do more to prevent global climate change”.
The Urgenda case took a very different course than the Juliana case in the US, where the US judicial system does pretty well. According to the summary, a court in The Hague immediately issued an order forcing the Dutch state to limit greenhouse gas emissions to 25% below 1990 levels by 2020. The summary does not give any reasons for the alleged relief in the application, but lists the basis for the decision of the court of first instance, which included the following:
The court came to the conclusion that the state was obliged to take measures to protect the climate because of the “severity of the consequences of climate change and the great risk of climate change occurring”. To this end, the court cited (without directly applying it) Article 21 of the Dutch Constitution; Emission reduction targets of the EU; Principles of the European Convention on Human Rights; the “no harm” principle of international law; the doctrine of dangerous negligence; the principle of fairness, the precautionary principle and the sustainability principle of the UN Framework Convention on Climate Change; and the principle of a high level of protection, the precautionary principle and the prevention principle anchored in European climate policy.
The Dutch government immediately appealed to the Hague Court of Appeal, which upheld the decision in 2018. Here are the reasons given by the Court of Appeal from the summary of the Climate Case Chart:
The court recognized Urgend’s claim under Article 2 of the ECHR, which protects the right to life, and Article 8 of the ECHR, which protects the right to privacy, family life, home and correspondence. The court found that, under the ECHR, the Dutch government has an obligation to protect these rights from the real threat of climate change.
The Dutch government appealed to the Supreme Court again in 2019, which was re-upheld on December 20, 2019.
Unfortunately, at this point in time the Netherlands had not come any closer to the goal of reducing greenhouse gas emissions by 25% compared to 1990 levels; In fact, according to this graph on Statista.com, CO2 emissions in the Netherlands were actually higher in 2019 than in 1990 (191.9 million tonnes in 1990 and 194 million tonnes in 2019). Dutch CO2 emissions fell to 175.8 million tonnes in 2020 – but that was undoubtedly mainly due to the pandemic and still only around 8% from 1990 levels. A recovery in CO2 emissions in 2021 occurred roughly the 2019 level would be a good bet.
What will the Dutch courts do now? Excellent question. You have gotten into a box that has no very good way out. They don’t seem to worry about a possible loss of legitimacy through usurping the role of the legislature or the impossibility of enforcing the court order.
But needless to say, the success of the Urgenda plaintiffs inspired the next and far more ambitious round of this litigation. In December 2020, a group of six young Portuguese citizens aged 8 to 21 submitted a new case under the name Duarte to the European Court of Human Rights. This time the accused are around 33 national governments – the entire 27 member states of the European Union plus Norway, Great Britain, Switzerland, Russia, Turkey and Ukraine. The complaint demands that the defendants “take all necessary steps to limit the global temperature increase to 1.5 ° C”. The theory is that such steps are necessary to protect the plaintiffs’ “right to life” as guaranteed by the European Convention on Human Rights.
A Dutch-based climate-skeptical group called CLINTEL (short for Climate Intelligence) posted a report on the Duarte case on the Watts Up With That website on August 27. The Watts Up With That post has links to more information from CLINTEL on the case. including a detailed background article here. The title of this article describes the case as “placing democracy under judicial tutelage”.
The Post also notes that CLINTEL has been denied permission to intervene in the case, despite the permission to intervene about eight environmental and “human rights groups”. I think you can see from this where this is going.
At the moment the Duarte case is just getting started. But I would not expect the ECHR judges to show any reluctance to make the blanket orders they are likely to issue.
Read the full article here.
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