Can the courts save us from climate change?

During COP26 – the global conference on climate change – countries are gathering in Glasgow in an effort to raise climate ambitions, including new pledges like Australia’s net zero by 2050 target.

But these still fall well short of what’s needed to keep the 1.5°C Paris goal alive.

Can litigation help fill the gap?

Concerned citizens and their advocates are turning to the courts all over the world to step in where governments have failed. More than 1900 climate change cases span more than 50 national, regional and international courts or tribunals.

Right here at home, Australia has the second-highest number of climate change cases filed after the United States.

A sense of urgency, and acceleration, among these litigants is clear.

Cases continue to emerge, including the ongoing Sharma litigation, Vanuatu’s effort to bring a case in the International Court of Justice, and a new case launched by Torres Strait Islanders.

But the question remains: how much can climate change cases really contribute to climate action in Australia – and internationally – and will it be enough to turn the current disastrous climate trajectory?

Better climate policy internationally

The Urgenda case in the Netherlands was a watershed moment for climate litigation. It was the first time a government was found to owe a legal duty of care to protect people from climate harms.

A Dutch environmental organisation – the Urgenda Foundation – and nearly 900 Dutch citizens argued that this duty of care obliged the Dutch government to achieve a significant reduction in greenhouse gas emissions by 2020 to keep the temperature targets of the Paris Agreement alive.

Despite appeals from the Dutch government, successive courts agreed with the litigants and ordered the government to slash its emissions.

The outcome in Urgenda has forged the path for other climate cases to compel more ambitious climate policies from governments around the world.

For example, Colombia’s Supreme Court has recognised that fundamental human rights are “substantially linked and determined by the environment and the ecosystem” and that the Columbian Amazon has its own rights.

The court ordered the Colombian government to formulate and implement action plans to address deforestation in the Amazon. Earlier in 2021, the United Nations Right’s Council similarly declared that access to a healthy environment is a human right.

Intergenerational equity in climate policies is another a key outcome sought by litigants.

In Germany, for example, the Constitutional Court recognised that “one generation must not be allowed to consume large portions of the CO2 budget while bearing a relatively minor share of the reduction effort, if this would involve leaving subsequent generations with a drastic reduction burden and expose their lives to serious losses of freedom”.

The court ordered German lawmakers to amend the country’s climate law, making it clear how it would reduce emissions after 2030. It resulted in a significant shift in Germany’s climate policy: increasing its reduction target from 55 per cent to 65 per cent by 2030, compared to 1990 levels.

But the climate problem goes far beyond the boundaries of any one country. This is why Vanuatu has launched a campaign to seek an Advisory Opinion from the world’s highest court – the International Court of Justice – on the issue of climate change and human rights.

While the outcome of this campaign won’t be known for some time, it provides further impetus for countries like Australia to do more – especially in our region of the world.

Compelling Australian climate action?

Recent developments in the courts are adding to mounting pressure on the Australian Federal Government to do more in its climate policies.

In May, in Sharma and a first for a common law court, Federal Court Justice Mordecai Bromberg found that the Federal Environment Minister owes Australian children a duty of care to avoid climate harms when approving, or not approving, a proposed coal mine extension.

Nevertheless the Minister has appealed the judgment and already approved the proposed mine.

Then in late August, Justice Brian Preston of the NSW Land and Environment Court issued a landmark ruling in Bushfire Survivors that the New South Wales Environment Protection Authority had failed to perform a statutory duty to address climate change, ordering the agency to develop objectives, guidelines and policies to fulfil this duty.

The NSW government has subsequently pledged to cut emissions by 50 per cent below 2005 levels by 2030.

But at least at this stage, climate change cases don’t appear to have dramatically shifted Australian Federal Government climate change policy.

Despite Prime Minister Scott Morrison finally committing to net zero by 2050, the ‘new’ Plan appears to just be a re-badging of old policies and reliance on emerging technologies rather than further reducing Australian greenhouse gas emissions.

Perhaps further pressure from the courts will come with the claim filed by First Nations leaders from the Torres Strait last month.

Their class action in the Federal Court argues that the Commonwealth owes a duty of care to Torres Strait Islanders to protect them, their culture and environment from harms caused by climate change.

But climate litigation is no substitute for government action

Even for those who believe that climate litigation can play an important role in bringing the world closer to a 1.5°C trajectory, there is only so much the courts can do.

Courts adjudicate legal disputes and interpret and apply the law. They are fundamentally important in holding our representatives to account.

But courts cannot write climate policies. That is the role of our elected governments.

At the end of the day, we need our leaders to step up and take climate action – for the sake of present and future generations.

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