Climate justice in court
Deenah Tsai
As climate change accelerates, so does the pursuit of justice through the courtroom: in recent years human rights-based climate litigation has emerged as a powerful tool to enforce accountability from governments and corporations. In September, a conference was organized by the Belgian Climate Centre in Ukkel about this very topic. This blog looks at past climate cases that have used human rights arguments, highlighting common legal strategies and their impact on human rights. These cases are reshaping the dialogue around environmental protection and governmental responsibility, displaying not merely a legal trend but a broader societal shift towards intergenerational justice, compelling current generations to safeguard the environment for those yet to come. Current activists are increasingly turning to traditional legal pathways to fight for environmental justice, however navigating the legal system can be challenging and often it doesn’t fully address the urgent concerns climate activists have. The role of scientific evidence in these cases can also be challenging, and that will be explored in the second part of this blog.
What is climate litigation? Refers to legal actions taken to address issues related to climate change. This could involve a lawsuit filed by individuals or organizations against governments or corporations, often with the aim of holding them accountable for their contributions to climate change.
What is climate mitigation? Refers to efforts and actions taken to reduce or prevent the emission of greenhouse gases and its effects on climate change, the environment and society.
What is climate adaptation? Refers to efforts and actions taken to prepare for and cope with the effects of climate change. Unlike mitigation, which aims to reduce the causes of climate change, adaptation focuses on adjusting to changes that are already happening / expected to occur.
Human rights-based climate litigation
In recent years there has been an increase in legal cases related to climate change that focus on the violation of human rights (Human Rights-based Climate lLtigation).In this discussion, I want to show how similar arguments are used in these cases. First, I have to make a distinction. All of the following cases can be classified as “Subjective Climate Litigation” (Le Contentieux Subjectif) because the focus lies on the alleged violation of an individual’s rights. In these cases, individuals or groups who believe their personal rights are harmed seek compensation for the damage they have suffered. For example, a Belgian farmer decided to sue TotalEnergies recently for one symbolic euro compensation for damages. He argues that climate change, worsened by inadequate government policy has very concrete consequences for him: monetary loss, extra work and extra stress. He is currently awaiting trial. This approach is quite different from “Objective Climate Litigation” (Le contentieux objectif) where the goal is to ensure that the government or public authorities are following legal obligations related to climate action. The goal is to prevent harmful future infrastructure and to ensure the law is applied correctly, even if no individuals have been directly harmed. In the cases covered here, the plaintiffs often apply an intergenerational rationale – a legal argument reasoning that current generations have a duty to protect the environment for future generations. Furthermore, the plaintiffs argue that their government’s inaction is a human rights violation, specifically a violation of the right to life and the right to private and family life and a home, both protected by the European Convention of Human Rights.
The Urgenda case (2015) is a landmark case since it was the first decision in the world ordering states to limit greenhouse gas emissions for reasons other than statutory mandates. In this case, a Dutch environmental group and 900 Dutch citizens sued their government requiring it to do more to prevent global climate change. The court in The Hague ordered the Dutch state to lower GHG emissions to 25% below 1990 levels by 2020, concluding that the government’s existing pledges and policies to reduce emissions by 17% were insufficient to meet the state’s fair contribution towards the goal of keeping global temperature increase within two degrees Celcius. The court found that the government has a duty to take measures to tackle climate change but did not specify how the government should meet the reduction mandate. In 2018 the Hague Court of Appeal upheld the previous ruling, adding that by failing to reduce greenhouse gas emissions by at least 25% by 2020, the Dutch government directly infringed the right to life and the right to private life and family life. Hereby a court accepted the link between climate change and human rights for the first time, giving way to more climate cases. To execute the Urgenda judgement, the government of the Netherlands adopted a Climate accord (‘klimaatakkoord’) in late 2019, encompassing more than 600 agreements to reduce the expulsion GHG. The goal is to reduce the emissions to 49% below 1990 levels by 2030. Given the composition and ambition of the new cabinet, it is unclear whether this goal will be reached.
In the Shell case (2021), the organization Milieudefensie sued the Dutch company Shell. The infamous company emits 8 times more than the whole country of the Netherlands and is responsible for 2,7% of all worldwide emissions. The plaintiffs extended the legal arguments from the Urgenda case, that the Dutch government violated a duty of care to its citizens by inadequate action targeting climate change, to private companies. They argued that Shell has a duty of care to reduce greenhouse gas emissions, again basing their argumentations on the violation of the right to life and the right to private life and family life. Shell lost the case, the Hague District Court ordering Shell to reduce its emissions by 45% by 2030 as opposed to 2019 across all activities: both emissions from its operations and emissions from the use of the oil it produces.3 The court ordered Shell to start immediately since urgent action has to be taken. However, Shell has appealed the judgement and backtracked prior clean energy ambitions, investing further in fossil fuels. As you may have heard, the Court of Appeals overturned the previous Shell case on 12 November 2024. Even though it is a step back, this does not mean the Shell case is completely meaningless: the court maintained that Shell has a responsibility to mitigate climate change and can’t hide behind politics or its clients. Furthermore, the new judgement also stated that new investments in fossil fuels are a violation of the Paris Accords. The Court held that while yes, Shell must be held responsible for the mitigation of climate change, the court does not oblige Shell to lower its emissions (anymore). The reasoning of the court is that other companies would likely step in and continue similar operations in the place of Shell. Furthermore, the judges argued they could not formulate a justified reduction percentage.
Drawing inspiration from the Urgenda case in the Netherlands, the Klimaatzaak (2023) was brought by an organization of concerned citizens arguing that Belgian law requires the Belgian government to have a more ambitious approach to the reduction of greenhouse gas emissions. The plaintiffs argued that by failing to implement sufficient climate action, the Belgian government not only endangered the current population but also the future well-being of younger generations and unborn citizens. Specifically, the plaintiffs sought that the Court would direct the government to reduce emissions to 42-48% in 2025 and at least 55 to 65% in 2030. This case had a mixed outcome. At first, the Brussels Court of First Instance held that the Belgian government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change, but refused to set specific reduction targets on the grounds of trias politica. However, the Court of Appeals of Brussels did not necessarily consider an injunction directing the government to reduce emissions as an infringement of the principle of trias politica and thus ordered the Belgian government (the Federal State, Flemish region and the Brussels-Capital-Region) to reduce their greenhouse gas emissions. The grounds of this decision were based on the breach of the right to life and family and private life.
It is important to understand that these cases, brought before a national court, were only local victories. There were also contradictory judgements such as in Norway and Germany, where judges rejected the link between climate change and human rights violations. Simply put there was no consensus until the European Court of Human Rights (ECHR) would pass judgment on the topic.
This was the relevance of the Klimaseniorinnen vs. Switzerland case (2024) because if the ECHR would reject the argumentation, the Urgenda Case and Klimaatzaak would have been wrongful interpretations of the European Convention of Human Rights. In this case a group of senior women sued the Swiss government arguing that it had insufficient policies regarding climate change, harming older populations since they are disproportionately affected by heat waves. The European Court of Human Rights ruled that Switzerland had violated both the right to life and private life by failing to adequately address climate change, since the court noted a lack of future climate objectives in Switzerland. This judgment confirmed that the right to private life contains a right for individuals to effective protection by the government against the negative consequences of climate change on their health, their well-being and their quality of life. Thus, the Court acknowledged that climate change is undeniably connected to human rights, making this a groundbreaking case.
Use of scientific evidence in court
Mariolina Eliantonio from Maastricht University identifies three challenges when courts have to assess scientific evidence. First, there is an epistemic challenge: Science and law compete in court because if scientific evidence is not presented persuasively, it will not hold up legally. Secondly, there is a doctrinal challenge. Science and law speak different languages. For instance, the term “causality,” which is crucial in understanding climate change, isn’t commonly used in legal settings and is often avoided. Third, there is a legitimacy challenge: when the court must consider scientific evidence, epistemic trespassing takes place: by not accepting scientific evidence as proof courts may downplay scientific evidence, not making the scientific findings less valid. However, the reverse is equally dangerous: courts may give legitimacy to scientific theories (they do not completely understand).
A clear example of these challenges is found in The Pulp Mills on the River Uruguay Case. In this case brought before the International Court of Justice (hereafter: the ICJ) in 2010, Argentina argued that Uruguay had breached its obligations under the 1975 Statute of the River Uruguay, a bilateral treaty between the two countries meant to protect the river’s ecosystem. Uruguay had allegedly done this by authorizing the construction of two pulp mills without proper consultation and environmental assessment. Argentina claimed that the construction and operation of the pulp mills would result in air pollution, water pollution, impact on aquatic life and biodiversity, transboundary pollution effects and noise, visual and general nuisance. However, Uruguay argued that Argentina could not submit claims regarding every type of environmental damage allegedly caused by the mills because these did not concern the interpretation of the treaty, and the Court therefore lacked jurisdiction. Without getting too technical it is important to consider that Argentina had brought its case before the ICJ under Article 60 of the Statute of the River Uruguay, which granted the Court jurisdiction over disputes relating to the interpretation or application of the treaty. This meant that the Court was limited to interpreting specific provisions of the treaty, not being able to consider environmental damages excluded from the treaty. The court did not have broader jurisdiction over general international environmental law or other international treaties. This meant that even though Argentina raised concerns about various forms of pollution, the ICJ could only address them within the specific obligations Uruguay had under the treaty, namely pollution that directly impacted the river’s water quality or was specifically covered under the treaty.
This Case is especially well known because of the dissenting opinion of Judges Al-Khasawneh and Simma, raising questions as to the role that scientific evidence can play in international judicial disputes. They draw attention to the inadequacy of Courts to assess climate science evidence or pass judgements on cases regarding pollution and climate change. The judges considered that the Court had evaluated the scientific evidence brought before it in a methodologically flawed matter, emphasizing the exceptionally fact-intensive nature of the case. They considered traditional methods of evaluating evidence to be deficient in assessing such complex, technical and scientific facts. Furthermore, they question if a court on its own is in a position to assess and weigh such complex scientific evidence, without the assessment of scientific questions by experts. This brings us to a crucial question: What type of institution would be best equipped to address complex climate cases? As more climate-related cases emerge globally, we need to consider this carefully.
The increasing focus on human rights in climate litigation represents a significant shift in legal thinking. It underscores the urgent need for governments and corporations to be held accountable for their actions regarding climate change. Landmark cases show that courts can link climate action and human rights effectively. However, challenges remain, particularly in how to enforce rulings and how to integrate scientific evidence into legal processes. As the pursuit of climate justice continues, legal systems need to evolve to handle the complexities of climate science. This will help protect the rights of both present and future generations. The outcomes of current and future cases will play a critical role in shaping legal standards and societal views on environmental responsibility.