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  • October 21, 2021

    Climate Justice: Human Rights and Climate Change Litigation

    As the human toll from climate change is becoming more and more apparent, human rights arguments are being increasingly used in climate change litigation. Arwen Bleksley discusses the increasing number of climate change litigation cases that use human rights as bases for their arguments.

    Arwen Bleksley

    Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin.

    Climate change has significant implications for a vast array of human rights.

    A recent report from the Intergovernmental Panel on Climate Change reiterated the damage that climate change is wreaking and the urgent need for action to keep the earth from warming even more drastically – which would also lead to an increase in the negative consequences for human rights globally.

    Consequently, human rights are becoming increasingly prevalent in climate change litigation. According to a July 2021 “snapshot” report from the London School of Economics, 112 human rights cases related to climate change had been captured by their databases.

    This is a relatively new area of law that is sure to continue evolving as environmental advocates alight on successful strategies and understanding of climate change’s human rights implications develops.

    Litigation Against Governments

    An early success in using human rights arguments in climate change litigation was State of the Netherlands v. Urgenda Foundation. This case was brought by a climate activist group against the Dutch government. The group argued that, by failing to take adequate steps to reduce emissions, the State was violating human rights and that the government was bound by Article 2 (the right to life) and Article 8 (the right to family life, which includes the right to be protected from harmful environmental influences) of the European Convention on Human Rights (ECHR).

    Arwen Bleksley Arwen Bleksley, U.W. 2L, was an extern in summer 2021 with the Wisconsin Department of Justice’s Environmental Protection Unit.

    In its decision, the Supreme Court of the Netherlands stated that climate change was a real threat involving serious risks, that the current generation of Dutch citizens would be confronted with loss of life or a disruption of family life, and that the State has a duty to protect against this threat by taking precautionary measures. Thus, it upheld a lower court ruling that required the State to reduce greenhouse gas emissions by at least 25% relative to 1990 levels by the end of 2020.

    More recently, in Neubauer v. Germany, a group of nine young people alleged that Germany’s 2019 Federal Climate Protection Act’s targets were insufficient to live up to the country’s obligation under the Paris Agreement to limit the global temperature rise to well below 2 degrees Celsius. The plaintiffs argued that the German government was therefore failing in its constitutional duty to protect their lives, health, and property, as well as violating their right to a future in accordance with human dignity and an ecological minimum standard of living.

    The German Constitutional Court agreed and stated that Germany is required to set emissions reductions targets for after 2030 that would live up to its commitments under the Paris Agreement. Critically, its rationale was that failing to adequately reduce emissions would not only harm the plaintiffs who brought the case, but would also unacceptably burden future generations. The Court gave Germany until the end of this year to amend the Federal Climate Protection Act.

    Litigation Against Corporations

    With the recent Milieudefensie v. Royal Dutch Shell case, human rights arguments in climate change litigation were successfully extended from governments to corporations. In this case, seven environmental groups and 17,379 individual claimants filed a class-action lawsuit, arguing that Shell had infringed upon the rights granted in Articles 2 and 8 of the ECHR by failing to change its business model to invest in renewable energy. In ruling for the plaintiffs, The Hague District Court ordered that Shell reduce its emissions by 45% by 2030, relative to 2019 levels.

    Litigation in the U.S.

    So far, climate change litigation based on human rights arguments has not been as successful in the United States.

    In Juliana v. United States, the plaintiffs, a group of 21 young people, sued the United States government and various government officials. The plaintiffs argued that the government had violated their due process rights of life, liberty, and property, as well as the Public Trust Doctrine, by continuing to “permit, authorize, and subsidize” fossil fuel.

    Although the Ninth Circuit acknowledged that climate change posed serious risks and that the government had contributed to it, it said that the plaintiffs did not have standing to pursue their constitutional rights claims, because it was not within the power of an Article III court to implement the plaintiff’s remedial plan. It concluded that a remedy for the plaintiff’s acknowledged injuries must be found in the other branches of government.

    Impact of the Litigation in Europe

    Even where climate change litigation based on human rights arguments has been successful, whether it will have a concrete effect is unresolved.

    After the Urgenda case in the Netherlands, the Dutch government only managed to reduce emissions by 24% by 2020, narrowly missing its 25% target. However, it likely would have missed the target by much more if not for the emissions reductions related to the COVID-19 pandemic. Germany has already amended the Federal Climate Protection Act, committing to become climate neutral by 2045, with various other emissions targets along the way. Only time will tell if Germany can achieve these goals.

    Impact in Other Areas

    Still, climate change cases using human rights arguments, even the unsuccessful ones, have brought attention to the ways that climate change and human rights intersect.

    Related to this is the climate justice movement, which acknowledges that the negative effects of climate change disproportionately harm marginalized or underserved communities. In response to these concerns, the Environmental Protection Agency created the National Environmental Justice Advisory Council in 1993. It also claims to be involved in addressing environmental issues related to the United States government’s human rights obligations.

    Here in Wisconsin, the Governor’s Task Force on Climate Change Report acknowledges the disproportionate effects of climate change on marginalized populations by including a Climate Justice and Equity section.

    Conclusion: A Growing Focus

    Climate change litigation using human rights arguments has already evolved to acknowledge obligations of corporations as well as governments and the rights of future generations as well as the rights of people alive today.

    In light of the growing focus on climate justice in conversations about climate change, perhaps in the upcoming years climate change litigation will increasingly incorporate climate justice ideas as well. Hopefully, human rights arguments will be an effective tool in bringing about meaningful progress toward limiting greenhouse gas emissions and preventing future climate catastrophe.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.

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    Environmental Law Blog is published by the State Bar of Wisconsin. To contribute to this blog, contact Gabe Johnson-Karp and review Author Submission Guidelines. Learn more about the Environmental Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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