—James Fowkes, University of Münster Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]
What will courts do about climate change? When it comes to discrete effects, judges have effectively been dealing with the issue for years in environmental law and other cases. But it is only since 2015 that judges around the world have begun to engage with the response to climate change itself, and the next months should be full of updates on their efforts.
As I write, judges in the Hague are hearing the Dutch government’s appeal against the 2015 judgment in Urgenda Foundation. That judgment, the first of its kind in the world, held that the government had to cut greenhouse gas emissions by 25% relative to 1990 levels by 2020, overruling the government’s decision to seek only a more modest reduction.
Apart from the obvious question of whether the order itself will stand, the Urgenda appeal should be a key datum on two important broader issues.
The first arises because the world’s key emitters are mainly not the site of its boldest courts. The Dutch appeal will be an indicator of how far senior judges in more restrained systems will heed standard separation of powers doctrines in the face of arguments that climate change is special – especially in a context where the Dutch government seems to be taking steps towards the stricter target even as the appeal is proceeding. This should bring to mind Thompson, the similar 2017 New Zealand case. High Court judges there held that the government had acted unlawfully in not reviewing climate change targets, but did not make an order because a new government, with stricter targets, had since come in to power.
Second, we will learn more about whether courts can play an action-forcing role in the context of international emissions politics. This role is standard fare in domestic constitutional theory, but it finds an interesting application in the context of the international climate change stalemate. States are holding back on their own reductions as bargaining chips to persuade others to join them, or simply because they are waiting to see what other states do. The refusal of the original Urgenda judgment to accept that the Dutch government could scale back its own emissions reduction efforts for international political reasons of this sort is perhaps its most intrusive feature. The fate of this argument on appeal will be particularly worth watching.
Beyond the narrow appeal, cases like Urgenda have also been sparking imitators. The list of climate change cases is now in the hundreds, including cases in many European jurisdictions, Australia, Brazil, Canada, Colombia, Ecuador, India, New Zealand, Nigeria, Pakistan, South Africa, Uganda, the United States, and the Inter-American Court of Human Rights. Many are ongoing and should see verdicts or important developments this year.
These cases will give us more data-points to evaluate the weaker-form strategies that courts, unsurprisingly, are often turning to in the face of the formidable complexities climate change cases present. Urgenda built its interventions largely on the fact that the government had backed away from its own targets because other governments were. The court could thus often rely on the government’s own findings that stricter cuts were practically feasible. The Leghari case in Pakistan, another trailblazing litigation decided a few months after Urgenda, used very different techniques. A clear child of South Asian public interest litigation culture, it took the violation almost for granted on its rapid way to committees and reporting obligations. But the broad logic is similar, and similarly weak-form: the orders in Leghari are open-ended, above all aiming to compel the government to be more active rather than being very prescriptive about what form the action should take.
Strategies like this have to face the question that any weaker form of review does. The whole point of weak-form review is, of course, to facilitate judicial intervention in non-traditional, challenging contexts by using less-than-traditional forms of judicial action. It is therefore always incumbent on its proponents in any given case to ask if their approach is too weak to do much other than facilitate review – since there is little to celebrate about switching on a light-bulb so dim it can only illuminate itself. It is for better data on this question, above all, that we should look in the current flowering of a larger sample of cases.
Finally, the next months will offer a key datum on whether the extraordinary complexities of climate change must confine responsible courts to weaker-form strategies – or whether a current German lawsuit shows a way to cut a path through this particular rainforest.
The litigation in Lliuya v RWE is testing out a cunningly simple argument. The claimant is a Peruvian farmer and home-owner who is affected by a melting glacier. The defendant, German power giant RWE, is one of the world’s largest single emitters of CO2. Mr Lliuya’s claim is that RWE is liable for the same proportion of the damages to his property caused by climate change as its share of global CO2 emissions (0,47%, apparently). The ambitious and potentially explosive idea, therefore, is that an individual damages claim can be based only a general link of the claimant’s harm to climate change, on the one hand, and a general link of the defendant to climate change, on the other – avoiding the need to link specific harms to specific company action, which is usually formidably difficult in climate change cases.
The court of first instance dismissed the lawsuit, but the Oberlandesgerichsthof in Hamm has ruled on appeal that the case should proceed to the evidentiary stage (see most recently its judgment in February). Since the blueprint of the litigation is freely transferrable – it is based on utterly standard laws against interference with property and equally standard emission activities by RWE – its fate on appeal, too, is worth watching closely.
For traditional models of judicial role, climate change litigation is a perfect storm. It is the sort of issue that labels like ‘polycentric’ or ‘policy-laden’ or ‘politicized’ dream of being allowed to adjectify just once before they die. But traditional models don’t necessarily fit anymore. Those who follow judicial engagement around the world with issues like healthcare will not be surprised at how fast climate change has become a litigable issue, and not only since climate change is an issue with an unusually strong claim to be extraordinary. We have moved very rapidly beyond the point of asking whether courts will intervene on climate change, and are into the hows and whens and what happened thens. And comparative lawyers trying to get grips with these details, in the name of deciding how their profession can contribute to the management of climate change, should end this year with much more to go on than they started it.
Suggested citation: James Fowkes, A Change in the Climate: Partly Cloudy with Increasing Litigation, Int’l J. Const. L. Blog, May 30, 2018, at: http://www.iconnectblog.com/2018/05/a-change-in-the-climate-partly-cloudy-with-increasing-litigation-i-connect-column/
 Thomson v Minister for Climate Change Issues  NZHC 733; available at http://www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/cases/NZHC/2017/733.pdf
 The most complete online database (also including legislation) is maintained by the Grantham Research Institute on Climate Change and the Environment, available at http://www.lse.ac.uk/GranthamInstitute/climate-change-laws-of-the-world/.
 See Leghari v Federation of Pakistan (Case No. W. P. No. 25501/2015, Lahore High Court), orders dated 04.09.2015 and 14.09.2015, available e.g. at https://elaw.org/PK_AsgharLeghari_v_Pakistan_2015