Daring Climate Rulings Beyond Our Borders
Courts in other Western countries are stepping as much as the climate challenge.
The atmosphere for climate litigation in our Supreme Court is decidedly chilly. A few of its peers in other countries have taken a much different approach. US lawyers are inclined to be inward focused, adept at understanding our own legal system but largely unaware of developments elsewhere. Here, I need to briefly summarize some key rulings.
Germany. In a pathbreaking opinion, the German Constitutional Court ordered the federal government to adopt much stricter emissions targets for 2030. Those targets are to be keyed to achieving the Paris Agreement’s goal of keeping climate change below 2 °C and as near 1.5 °C as possible. The German ruling was based on two constitutional provisions. One provision protected the suitable to life and physical integrity. One other required the state, “mindful also of its responsibility toward future generations: to guard the “natural foundations of life and animals.” By taking weak initial measures, the federal government hadn’t entirely precluded the potential of compliance with the Paris goal. Nonetheless, such drastic measures could be required after 2030 as to significantly impair the lives of that generation, violating the federal government’s responsibilities toward the longer term.
France. France’s highest administration court, the Court of Cassation, has given similar marching orders to its government, though on different legal grounds. It based its ruling on a French law, which said that “any person chargeable for ecological damage is obliged to treatment it.” It also relied on a constitutional provision requiring every one to forestall or limit damage to the environment.
The Netherlands. A Dutch trial court ruling within the Urgenda case created worldwide news by ordering the federal government to adopt a more ambitious climate plan. That was the primary in a series of rulings, including the one above. There was less of a stir when the Dutch Supreme Court upheld the ruling, imposing requirements very similar to those in Germany and France.
Within the meantime, a Dutch trial court has once more taken the worldwide lead in climate litigation. It ordered Shell Oil, which is predicated within the Netherlands, to maneuver rapidly to decarbonize its own operations and avoid selling products that may result in carbon emissions — natural gas and gasoline, more specifically. Specifically, the court ordered Shell to chop emissions because of its products and operations 45% from 2019 levels by 2030. It stays to be seen whether the appeals and supreme courts will uphold the trial court, as they did in Urgenda.
These courts have gone where, thus far, U.S. courts have filed to tread. Indeed, to a U.S. lawyer, a few of these rulings could appear startling. In my next post, I’ll discuss a number of the reasons for this different outcomes.
