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Climate change and the courts

Published online by Cambridge University Press:  02 January 2018

Jolene Lin
Jolene Lin*
Affiliation:
Faculty of Law, University of Hong Kong
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Abstract

This paper argues that climate change litigation is an important component of the governance framework that has emerged to regulate how states respond to climate change at the global, regional and local levels. The paper examines climate change-related cases from selected jurisdictions, including Australia and the EU, and proposes a theoretical framework to shed light on the use of litigation as a regulatory response to climate change.

Type
Research Article
Information
Legal Studies , Volume 32 , Issue 1 , March 2012 , pp. 35 - 57
Copyright
Copyright © Society of Legal Scholars 2012

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References

1. For the international legal regime, see, for example, Yamin, F and Depledge, J The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar; Bodansky, D ‘the United Nations Framework Convention on Climate Change: a commentary’ (1993) 18(2) Yale J Int'l L 451 Google Scholar; Freestone, D and Streck, C (eds) Legal Aspects of Implementing the Kyoto Protocol Mechanisms: Making Kyoto Work (Oxford: Oxford University Press, 2004)Google Scholar; Gupta, J The Climate Change Convention and Developing Countries – From Conflict to Consensus? (Boston: Kluwer Academic Publishers, 1997)CrossRefGoogle Scholar. For public policy, see generally, publications by the Belfer Centre for Science and International Affairs (John F Kennedy School of Government, Harvard University), available at: http://belfercenter.ksg.harvard.edu; A Giddens ‘The politics of climate change: national responses to the challenge of global warming’ Policy Network, September 2008. For carbon technologies, see, for example, R Purdy ‘The legal implications of carbon capture and storage under the sea’ (2006–2007) 7 Sustainable Development Law and Policy 22; MA de Figueiredo ‘The liability of carbon dioxide storage’ Massachusetts Institute of Technology (thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Technology, Management and Policy), 2007.

2. For discussion of the use of law and legal techniques by pressure groups to obtain wider objectives such as social change, see Harlow, C and Rawlings, R Pressure Through Law (London: Routledge, 1992)Google Scholar.

3. This reason features in Ran Hirschl's list of political determinants of judicialisation. See Hirschl, R ‘the new constitutionalism and the judicialization of pure politics worldwide’ (2006) 75 Fordham L Rev 721 at 724Google Scholar.

4. As Charles Epp suggests, ‘judicialization from below’ is largely contingent upon the existence of a support structure for legal mobilisation, such as a nexus of rights-advocacy organisations, rights-supportive lawyers and law schools, and legal aid schemes, and, more generally, hospitable socio-cultural conditions; See generally, Epp, CR The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998)Google Scholar.

5. Byrd-Hagel Resolution, Senate Resolution 98.

6. Peel, J ‘the role of climate change litigation in Australia's response to global warming’ (2007) 24 EPLJ 90 Google Scholar.

7. Case T-183/07.

8. For analysis of the evolution of EU environmental law, see von Homeyer, I ‘The evolution of EU environmental governance’ in Scott, J (ed) Environmental Protection: European Law and Governance (Oxford: Oxford University Press, 2009)Google Scholar.

9. See, for example, Kivalina v Exxonmobil Corporation, et al 663 F Supp 2d 863 (ND Cal Sept 30, 2009); and Connecticut v American Electric Power Company, Inc 582 F 3d 309 (2d Cir 2009), reversing 406 F Supp 2d 265 (SDNY 2005).

10. The political question doctrine is part of the doctrine of the separation of powers and provides that certain questions are political as opposed to legal, and thus must be resolved by the political branches rather than by the judiciary (Corrie v Caterpillar, Inc 503 F 3d 974 (9th Cir 2007)).

11. Mezey, SG Pitiful Plaintiffs: Child Welfare Litigation and the Federal Courts (Pittsburgh: University of Pittsburgh Press, 2000) pp 5–6 Google Scholar. Also see generally, Scheingold, S The Politics of Rights: Lawyers, Public Policy, and Political Change (Michigan: University of Michigan Press, 2nd edn, 2004)CrossRefGoogle Scholar.

12. Lobel, J ‘Courts as forums for protest’ (2004) 52 UCLA Law Review 477 at 479Google Scholar.

13. Ibid, at 480.

14. Rule 11(b)(i) requires an attorney to certify that any written submission to the court ‘…is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation’.

15. See, for example, the Climate Justice website, available at http://www.climatelaw.org/. In relation to the judicial review challenge of the Treasury's bailout of the Royal Bank of Scotland (RBS), allegedly a ‘self-styled oil and gas bank’, see the World Development Movement's press release, available at http://www.wdm.org.uk/wdm-takes-treasury-court-over-rbs; and M Murphy ‘Green groups to sue treasury on RBS investments’Financial Times 30 June 2009. Permission to bring judicial review proceedings was not granted (The Queen on the Application of People and Planet v HM Treasury[2009] EWHC 3020 (Admin)). Permission to appeal was granted on the costs aspects alone and this was subsequently dismissed on 1 March 2010 (R (Platform & Ors) v Commissioners of HM Treasury[2010] EWCA Civ 353; [2010] EWCA Civ 352). This did not deter the World Development Movement from taking the Treasury to court a second time over its November 2009 decision to provide a further £25 billion of public money to RBS; see ‘New legal action over latest RBS bailout’ 3 February 2010, available at http://www.wdm.org.uk/new-legal-action-over-latest-rbs-bail-out-0.

16. In general, the term ‘adaptation’ is applied in the climate change literature to describe any action taken to adjust to changing climatic conditions, whether in natural or socio-economic systems; RJT Klein and RSJ Tol ‘Adaptation to climate change: options and technologies’ (1997) FCCC/TP/1997/3. The Intergovernmental Panel on Climate Change (IPCC) defines adaptation as ‘…the adjustment in natural or human systems in response to actual or expected climatic stimuli or their effects, which moderates harm or exploits beneficial opportunities’; Parry, ML et al (eds) Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 2007)Google Scholar. For discussion on the historical treatment of the issue of adaptation within the UNFCCC, see E Lisa and F Schipper ‘Conceptual history of adaptation in the UNFCCC process’ 15(1) RECIEL 82.

17. Though this is increasingly not the case, as linkages between human rights and climate change are being made and more scholars explore the ethical dimensions of climate change. See, for example, chapters in ‘Part II: climate justice’ in Richardson, B et al (eds) Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (Cheltenham: Edward Elgar Publishing, 2009)CrossRefGoogle Scholar, and Averill, M ‘Linking climate litigation and human rights’ (2009) 18(2) RECIEL 139 Google Scholar.

18. J Peel ‘The role of climate change litigation in Australia's response to global warming’ Melbourne Law School, Legal Studies Research Paper no 269 p 96. Lyster contemplates this possibility in a rhetorical question: ‘Or can the difference in approach be accredited to the fact that the NSW Land and Environment Court is a specialist court which has a history of advancing the goals of ecologically sustainable development, unlike the Federal Court?’; see Lyster, R ‘Chasing down the climate change footprint of the private and public sectors: forces converge’ (2007) 24 EPLJ 281 at 306Google Scholar.

19. See, for example, Burns, WCG and Osofsky, HM (eds) Adjudicating Climate Change: Sub-national, National and Supra-National Approaches (New York: Cambridge University Press, 2009)CrossRefGoogle Scholar; C Blodgett ‘Climate change litigation in the United States of America’ CISDL Legal Working Paper Series on Climate Change Law and Policy, available at http://www.cisdl.org/pdf/working_papers_climate/Blodgett.pdf.

20. (2006) 152 LGERA 258.

21. (2007) 243 ALR 784.

22. See Peel, J and Godden, L ‘Australian environmental management: a “dams” story’ (2005) 28(3) UNSW Law Journal 668 Google Scholar for discussion of the EPBC Act.

23. [2007] FCA 1480, para 37.

24. Ibid, para 40.

25. Ibid, para 44.

26. (2006) 232 ALR 510.

27. Above n 23, para 39.

28. Ibid, para 55.

29. In Minister for Environment and Heritage v Queensland Conservation Council (2004) 139 FCAFC 190 (Black CJ, Ryan and Finn JJ), the court held that the term ‘impact’ is ‘not confined to direct physical effects of the action on the [Matters of National Environmental Significance]…It includes effects which are sufficiently close to the action to allow it to be said, without straining the language, that they are, or would be, the consequences of the action on the protected matter’.

30. Above n 23, para 39. The issue of significance is certainly influenced by the perceived scale of the problem, that is, whether climate change is ‘too big’ a problem to be addressed by local action, or a localised issue that requires remedial action at the state or sub-state level; see Osofsky, HM ‘Is climate change “international”? Litigation's diagonal regulatory role’ (2009) 49(3) Va J Int'l L 585 Google Scholar.

31. Above n 23, para 34.

32. Also see Thornton & Ors v Adelaide Hills Council & Ors (2006) 151 LGERA 1, para 48, where the courts recognised that the emissions of GHGs is not consistent with the principles of ecological sustainable development, but the proposed development will not be rejected on this ground because ‘no real attempt has been made by the Appellants to provide us with the likely increase in greenhouse gas emissions overall by the proposed development, compared with the existing operation…There was no evidence put to us to show that there will most likely be an increase overall in the emission of greenhouse gases by the proposed development’.

33. (2007) 157 LGERA 124.

34. [2007] NSWLEC 741, para 156.

35. Ibid, para 162.

36. Ibid, para 161.

37. Minister for Planning v Walker (2008) 161 LGERA 423; [2008] NSWCA 224.

38. Ibid, paras 39, 41 and 44.

39. Ibid, para 60.

40. Ibid, para 56.

41. [2007] NSWLEC 490; (2007) 158 LGERA 349.

42. (2007) 158 LGERA 349, para 129.

43. Ibid, para 132.

44. (2007) 159 LGERA 349.

45. [2008] SASL 57.

46. [2008] VCAT 1545.

47. Ibid, para 40.

48. Parry et al (eds), above n 16.

49. [2006] FCA 736, para 72.

50. [2007] QCA 338.

51. [2007] EWHC 228 (Admin).

52. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community.

53. Ghaleigh, NS ‘Emissions trading before the European Court of Justice: market making in Luxembourg’ in Freestone, D and Streck, C (eds) Legal Aspects of Carbon Trading: Kyoto, Copenhagen, and Beyond (Oxford: Oxford University Press, 2009)Google Scholar.

54. Germany v Commission (Case T374/04), upheld in Poland v Commission (Case T-183/07) at para 81.

55. Société Arcelor Atlantique et Lorraine and Others v Premier minister, Ministre de l'Écologie et du Développement durable, Ministre de l'Économie, des Finances et de l'Industrie (Case C-127/07).

56. Ibid, para 34.

57. Ibid, paras 49, 53 and 54.

58. Van Zeben has pointed out that ‘[r]egardless of the validity of the claims of these Member States, it may not be coincidental that most claims originate from the “new” Member States, a group which has had problems reconciling the costs that the EU ETS imposes on their economies, on the one hand, and the economic benefits which come with European membership, on the other’; van Zeben, JAW ‘the European emissions trading scheme case law’ (2009) 18(2) RECIEL 119 Google Scholar.

59. Poland v Commission (Case T-183/07) para 92.

60. Ibid, para 87.

61. Ibid, para 89.

62. Ibid, para 103.

63. Ibid, para 113.

64. Ibid, para 118.

65. Pearce, D, Turner, K and Bateman, I Environmental Economics: An Elementary Introduction (Baltimore: John Hopkins University Press, 1993) p 183 Google Scholar.

66. This is not unusual to the EU ETS – claims brought before the European courts by individuals and environmental interest groups have been rejected due to the lack of ‘direct or individual concern’ which is a precondition for an Art 230 proceeding.

67. Commission v Italy[2006] ECR I-65 and Commission v Finland[2006] ECR I-10 were brought under Art 226 EC Treaty concerning failure by the Member States to implement the directive. In Commission v Italy, the Italian Government had failed to put in place the necessary legal and administrative framework to implement the EU ETS Directive before the stipulated deadline. In Commission v Finland, Finland had granted the province of Aland certain exemptions in its implementation of the EU ETS Directive. The court held that this constituted an incorrect implementation of the directive.

68. In the American administrative law literature, this phenomenon of ‘regulatory ossification’ has been widely criticised. Also see an interesting study on the costs of regulatory delay, C O'Neill et al ‘The hidden human and environmental costs of regulatory delay’ Center for Progressive Reform White Paper no 907, October 2009.

69. The Revised EU ETS Directive reflects the EU's independent commitment of a 20% reduction of GHG emissions by 2020, irrespective of any post-Kyoto international agreement; see ‘Position of the European Parliament adopted at first reading on 17 December 2008 with a view to the adoption of Directive 2009/…/EC of the European Parliament and of the Council amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading system of the Community’ available at http://www.europarl.europa.eu/sides/getDoc.do?type=TC&reference=P6-TC1-COD-2008-0013&language=EN; Recitals, para 3.

70. NS Ghaleigh makes a similar observation, above n 53, p 388.

71. I am grateful to Professor Joanne Scott for sharing her chapter ‘The multi-level governance of climate change’ in P Craig and G de Burca The Evolution of EU Law (Oxford: Oxford University Press, 2nd edn, 2011, forthcoming), in which she argues that in both Poland and Estonia, ‘…the CFI speaks the language of constitutional law’ and emphasises the importance of the principle of subsidiarity.

72. Estonia v Commission, para 53; Poland v Commission, para 85.

73. ‘Inuit petition Inter-American Commission on Human Rights to oppose climate change caused by the United States of America’, 7 December 1995, Press Release, Inuit Circumpolar Council (Canada), available at http://www.inuitcircumpolar.com/index.php?Lang=En&ID=316.

74. These factual details are contained in the ‘Petition to the Inter American Commission on Human Rights seeking relief from violations resulting from global warming caused by acts and omissions of the United States: summary of the petition’, ibid.

75. Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference, Presentation at the Eleventh Conference of Parties to the UN Framework Convention on Climate Change, Montreal: The Climate Change Petition by the Inuit Circumpolar Conference to the Inter-American Commission on Human Rights, 7 December 2005, available at http://www.inuitcircumpolar.com/index.php?ID=318&Lang=En.

76. DB Hunter ‘The implications of climate change litigation for international environmental law making’ Washington College of Law Research Paper no 2008–14, p 3.

77. Ibid, p 4.

78. UNESCO World Heritage Convention, Art 11(4).

79. Criteria set out in the Operational Guidelines to the Heritage Convention, Ch IV.B.

80. World Heritage Convention, Art 4.

81. Petition to the World Heritage Committee Requesting Inclusion of the Sagarmatha National Park in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions, p 4, available at http://www.climatelaw.org/cases/country/.

82. Decision 29 COM 7B.a, Decisions adopted at the 29th session of the World Heritage Committee. For more information on UNESCO's climate change-related work as a result of the petitions bringing the issue of climate change to the foreground, see UNESCO's website, available at http://whc.unesco.org/en/climatechange.

83. Groups Petition World Heritage Committee to Danger-list Waterton-Glacier Park (16 February 2006), available at http://www.climatelaw.org/cases/country/intl/unescoglacier/2006Feb16/; UNESCO 6th Danger-listing petition filed 22 June 2007, available at http://www.climatelaw.org/cases/country/intl/unescoozbmtns/unesco/.

84. See Petition to the 31st Session of the World Heritage Committee at Christchurch, New Zealand from 23 June 2007 to 1 July 2007 Requesting Inscription of The Greater Blue Mountains World Heritage Area in the List of World Heritage in Danger and for Protective Measures and Actions, paras 141–162, available at http://www.climatelaw.org/cases/country/intl/cases/case-documents/unesco/unozblmtns/body.pdf.

85. Petition to the World Heritage Committee, above n 81, p 46.