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Can the Law Protect us from Climate Change?

Can the Law Protect us from Climate Change?
by Erik Jan van Oosten, originally published by Feasta | JUL 23, 2015

Can the law protect us from climate change? Do we have a legal right to a stable climate? Are governments responsible for preventing dangerous climate change within their borders? One month ago I would have answered these questions with “most likely not”, but one extraordinary court case changed that to “hopefully, yes!”

I have been following this case from the moment John Jopling recommended to me the book Revolution Justified by Roger Cox, the lawyer behind the climate case. (an interesting read, John wrote a great review about it.) This led me to study the 120 page indictment and follow the court case on a live stream. This article will first introduce why this case is different than others, secondly how it has been received in the Netherlands and thirdly how to proceed from here with the COP21 in mind.

1. The case
As a lay-person in law and legislation it was surprisingly easy to understand the legal documents and Roger’s book. Basically the argument is that the government has to protect its citizens against external threats. This is a widely accepted government task. If a neighbouring country were to invade we would expect the government to coordinate the response. The difficulty is that we do not yet perceive climate change as the immense threat it clearly is according to climate science. In Revolution Justified the parallel with the ban on asbestos is made. In both cases it seemed initially like a good idea to make use of a polluting resource, but gradually the unexpected consequences piled up. According Roger Cox the level of consensus required to ban asbestos was lower than the current level of consensus on the dangers of climate change.

Just one week before the judgment in the climate case I organized and chaired a panel debate called “Global ways to CO2 reduction”. Dennis van Berkel, legal expert at Urgenda, was there to present and discuss the climate case as a panellist. He explained that they sued the Dutch government on behalf of 900 Dutch citizens for not taking appropriate climate action at the court in The Hague. One of the remarkable things about the climate case is that it was filed as a tort-case, not an environmental law case. This allowed for co-plaintiffs, basically everyone with a Dutch passport, to opt-in. They did not ask the judge to defend nature or act as representatives of nature, but essentially asked to be protected against nature. This is not merely a semantic difference. It is an acknowledgment that nature is not just something for idealists to protect and care for, but that the lack of protection and care violates human rights.
Dennis van Berkel explained that he tried to avoid complex legal precedents in their tort-case. The prudent man standard, the precautionary principle and the violation of human rights were called upon to show the immorality of the current inaction. Interestingly he was not optimistic at all about winning the case when I met him that day. Urgenda anticipated a minor victory by making a layered set of demands, meaning that there could also be small but meaningful wins even if they lost their main demand: getting the government to live up to its own promise to address climate change sufficiently.

At first I was sceptical as well about the chances of winning but many aspects of the argument simply make too much sense to be ignored by the judge. This case has put the judge in quite a difficult position as he is forced to pick one of two realities: the socio-economic reality of everyday life that exists to a considerable extent because of the structures put in place by the government, or the biophysical reality that has, despite the high level of scientific consensus on climate change, not been embraced in our culture.

The Oslo Principles are created by judges concerned about climate change and this ruling can be placed in that perspective. It is unclear to what extent the Oslo principles played a role in the decision of the judge, but the resemblance in argumentation suggests a connection. This is the key paragraph of the report:
“Avoiding severe global catastrophe is a moral and legal imperative. To the extent that human activity endangers the biosphere, particularly through the effects of human activity on the global climate, all States and enterprises have an immediate moral and legal duty to prevent the deleterious effects of climate change. While all people, individually and through all the varieties of associations that they form, share the moral duty to avert climate change, the critical legal responsibility rests with States and enterprises.”

2. The reactions
The reaction in the courtroom was nothing short of euphoric. Urgenda has put subtitled videos of the first reactions on their youtube channel that give a good indication. The Dutch social media exploded with #klimaatzaak (#climatecase in Dutch) trending. The current government (somewhere between neoliberal and conservative in the political spectrum) reaction to the ruling was interesting and reflected the argument as made by the defendants in court. They claimed “this ruling will hurt our economy” which meant: this will hurt economic growth which is, despite our imposed ideological austerity, now slowly returning.

The minister of economic affairs proclaimed that “we were already anticipating meeting the 2030 target for reduction of CO2.” It is amazing how governmental CO2 targets never seem to coincide with the time that the government is in office. This is the first time they are legally obliged to tackle the total CO2 emissions within their borders, during their own time in office. The decision whether to appeal was postponed for two months. This was at least partially due to the fact that the Dutch populace massively asked the government not to appeal on social media, almost all Dutch newspapers wrote favorably about the outcome on their front pages, and with all the (international) attention on this case it would likely be bad PR to appeal.

The reaction from most opposition parties (excluding greens) was interesting as well. The fault of the government was not the growth-at-all-cost strategy: the creation of “jobs” through attracting polluting industries with low energy prices and the effort to out-perform Ireland as a tax-haven in order to ensure their place in the board of directors of some bank, accountancy or insurance firm. No, the problem was that the government doesn’t understand that sustainability and economic growth go hand in hand. We can easily meet the 25 percent reduction in 2020 as demanded by the judge by boosting “green growth”, “green jobs” and everything else that the current government is already pursuing but with the word “green” added to it. The debate is framed as modernism versus eco-modernism.

For me the remarkable thing is that the government seems to understand that growth in throughput of goods and services is generally not a win-win combination with the reduction of greenhouse gases. They acknowledge that there are these two aforementioned realities and disagree with the judge for choosing the biophysical reality over the socio-economic reality. The opposition denies that the biophysical reality is at conflict with the socio-economic reality and that we just have to tweak it a bit to make the total greater than the sum of its parts. This leaves me wondering if it is this light shade of green we have to worry about more than the right wing which we traditionally regard as our opponents in the environmental movement.

3. The next step
Now the legal precedent is set, how do we proceed? I have been thinking about strategy and I believe it is best to just start with a letter of intent. One first has to try to come to an agreement with the other party before going to court. Ideally we want this letter to be in the hands of every leader of an annex-1 country that is likely to weaken a climate treaty before the COP-21 starts. The letter would warn that these leaders can expect a climate case when they do not sign a climate treaty or if that treaty is seen as inadequate by the plaintiffs. The possibility of having to respond to a climate case will put pressure on governments, and it would be best to apply that pressure during the COP-21.

There is one easy step that governments could take to make them immune to court cases like this: take part in the CapGlobalCarbon (www.capglobalcarbon.org) scheme. This would automatically ensure that only fossil fuels from within the carbon budget will be allowed to be extracted or imported. There is an alternative to the current, overly complicated, system of managing emissions. Hiding behind the “reducing carbon effectively and equitably is terribly complex” argument is not an option anymore.

The Dutch case didn’t use exotic precedents or specific loopholes and is likely to be transferable to other countries. John Jopling studied this case has said that it is conceivable to file a case like this in Ireland. The letter and the summons have been translated into English. The most effective strategy would be to demand that a 25% decrease in greenhouse gases compared to 1990 is required as this is what annex-1 countries have agreed on, but I can imagine country-specific differences as to what promises have been made.

Filing the case with a high amount of co-plaintiffs probably played a role in the success of the case. The civil involvement proved to be useful both for awareness and for the promotional side of filing such a revolutionary case, but it also showed the widely shared anxiety about the effects of climate change and the discontent with the current way it is being dealt with in all layers of society. While the claim by individuals was disallowed, I’m confident that this factor did play a role in the ruling of the judge. The function of the co-plaintiffs in the Dutch climate case was to claim that inaction on climate change is a violation of human rights. This was not confirmed by the judge. For the other cases I recommend a less rigorous claim for the co-plaintiffs.
Strategically, the recruitment of co-plaintiffs would take place during the COP-21 as the climate will be headlining the news for weeks. I think that the co-plaintiff strategy has the same viral potential as we now see in the divestment movement. Why wouldn’t you want to help save the climate and, if the government fails to achieve their target, be able to receive a compensation claim?

The fact that the Dutch government now has to have reduced the emissions by 25 percent in 2020 is not the major victory of the climate case. The victory is that Roger and his team opened the door for the rest of the world to challenge the inaction on climate change of their governments. We can justifiably call that a revolution.

The Feasta climate group is interested in contributing to the development of a climate case in Ireland and/or England, but does not have the capacity to carry out the process alone. Please contact us at info@feasta.org if you or your organization is willing to collaborate or contemplating whether to launch a similar case.

http://www.resilience.org/stories/2015-07-23/can-the-law-protect-us-from...