The Role of Courts in Climate Change Litigation

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The Cost of Inaction: The Role of Courts in Climate Change Litigation

Louise Fournier

Thesis submitted for the degree of

LL.M. Global Environment and Climate Change Law 26 August 2017 10001 words

À la mémoire de mon père

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INTRODUCTION

4

I.

Background

4

II.

Research question

6

III. Method

7

IV. Hypothesis

9

CHAPTER I: CLIMATE CHANGE LITIGATION AND SEPARATION OF POWERS 9 I.

Judicial review and separation of powers

II.

Separation of powers in climate change litigation A. B.

Standing Justiciability: political question

9 11 11 14

CHAPTER II: LITIGATION FOR GOVERNMENTAL INACTION

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I.

Urgenda: Adjudication in the context of a right to a healthy environment

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II.

Leghari: Judicial activism in a competitive authoritarian regime

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III. Atmospheric trust litigation in the United States

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CHAPTER III: THE ROLE OF THE JUDICIARY IN ADJUDICATING CLIMATE CHANGE LITIGATION FOR GOVERNMENTAL INACTION

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I.

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Factors influencing a finding of justiciability

A. The positive relationship between a finding of justiciability and a constitutional right to a healthy environment 25 B. The positive relationship between competitive authoritarian constitutional states and judicial activism in climate change litigation 27 C. Malleability of the doctrines of standing and the political question in American climate change litigation 29

II. A. B.

The role of climate change litigation with respect to governmental inaction

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Negative aspects Positive aspects 1. Access to climate justice 2. Litigation as an adaptation and mitigation tool 3. Litigation’s role in shaping social norms

31 33 33 35 36

CONCLUSION

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BIBLIOGRAPHY

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ACKNOWLEDGMENTS I would first like to thank my thesis supervisor Professor Navraj Singh Ghaleigh of the School of Law at the University of Edinburgh for his very helpful guidance and feedback. I would also like to thank the Legal Affairs team at the United Nations Climate Change Secretariat for letting me pick their brains and for being flexible and supportive during my internship. Thank you to Me Kathleen Houlihan and Ms. Sarah Acker for their valuable comments and my friends from the LLM in Global Environment and Climate Change Law for inspiring me. Finally, thank you to my family and my partner for always believing in me. The views and opinions expressed in this article are my own and do not necessarily reflect the position of the UN Climate Change Secretariat. Any potential mistake is, of course, my own.

TABLE OF ABBREVIATIONS Abbreviation

Full name

API

American Petroleum Institute

ATL

Atmospheric trust litigation

DEP

Department of Environmental Protection

DOE

Department of Ecology

EPA

Environmental Protection Agency

GHG

Greenhouse gas

INDC

Intended nationally determined contribution

NDC

Nationally determined contribution

NGO

Nongovernmental organisation

OCT

Our Children’s Trust

UNEP

United Nations Environment Programme

UNFCCC

United Nations Framework Convention on Climate Change

USSC

United States Supreme Court

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INTRODUCTION

I. Background The year is 2017, and we live on the verge of what seems like an eco-dystopian world: an iceberg the size of Delaware has drifted away from Antarctica1, Greenland is burning2, islands in the Pacific are being swallowed by the sea3 and 23 million people were displaced due to weather-related disasters in the last year 4, all the while the President of the world’s largest superpower publicly announced that climate change is a “Chinese hoax”5 and global climate action is insufficient to avoid dangerous climate change.6 Faced with the urgency of the situation, citizens and non-governmental organisations (NGOs) are bringing governments to court to compel them to enact or implement better climate change legislation. Litigation over governmental inaction might be the solution to bring back climate justice, but it also raises questions about the role of courts in adjudicating such issues. Litigation’s role in fostering climate justice is complicated by the “super wicked” problem caused by climate change.7 In the climate change context, such features include the fact that the longer it takes to address the problem, the harder it will be to do so, as greenhouse gas (GHG) emissions continue to accelerate global warming at an exponential pace.8 As Dr. Lazarus notes, another problematic feature is that “those who are in the best position to address the problem are not only those who caused it, but also those with the least immediate incentive to act within that

Paul Voseen, “Delaware-sized iceberg splits from Antarctica” (17 July 2017) Science Magazine, online: http://www.sciencemag.org/news/2017/07/delaware-sized-iceberg-splits-antarctica (Accessed 2017/08/20) 2 NASA, “Fire and Ice in Greenland” (3 August 2017), NASA Earth Observatory, online: https://earthobservatory.nasa.gov/NaturalHazards/view.php?id=90709 (Accessed 2017/08/20) 3 Simon Albert et al, “Interactions between sea-level rise and wave exposure on reef island dynamics in the Solomon Islands” (2016) 11:5 Environ Res Lett 054011. 4 Norwegian Refugee Council/Internal Displacement Monitoring Centre (NRC/IDMC), 2017 Global Report on Internal Displacement (2017), online: http://www.internal-displacement.org/globalreport/grid2017/pdfs/2017-GRID.pdf 5 Donald J. Trump (realDonaldTrump). "The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive."06 Nov 2012, 19:15 UTC. Tweet 6 United Nations Environment Programme (UNEP), The Emissions Gap Report 2016, (Nairobi: UNEP, 2016), online: http://www.unep.org/emissionsgap/ 7 Richard J Lazarus, “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future” (2008) 94 Cornell L Rev 1153. 8 Ibid 1

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necessary shorter timeframe”.9 At the core of the idea of climate justice is the fact that those who have done the least to cause climate change are the ones facing its most dire impacts.10 The Paris Agreement’s clear goal of “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels”, stated in Article 2, provides context for litigants to argue that their governments’ policies should pursue this stated political commitment. 11 Over the past decade, climate change litigation, which can be defined as “any piece of federal, state, tribal, or local administrative or judicial litigation in which the … tribunal decisions directly and expressly raise an issue of fact or law regarding the substance or policy of climate change causes and impacts”, has boomed across national jurisdictions around the world.12 A recent United Nations Environment (UNEP) report on climate change litigation found that, as of March 2017, there were 654 cases filed in the United States and over 230 cases brought in all other countries.13

What explains this proliferation of climate change litigation? According to the team conducting the UNEP study, this is owed in large part to the growing number of national laws that address climate change directly, which provides litigants with an avenue to hold governments and private actors to account for their international obligation to mitigate or adapt.14 This appeal of launching climate change litigation is even stronger considering the institutional failure at the international level to develop

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Ibid Mary Robinson Foundation for Climate Justice, “Principles of Climate Justice”, (2017), online: . 11 United Nations Environment Program, The Status of Climate Change Litigation: A Global Review (2017) at 10 UNEP; United Nations Framework Convention on Climate Change. (2015a). Paris Agreement – Decision 1/CP.21 – Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015 Addendum Part two: Action taken by the Conference of the Parties at its twenty-first session. Bonn. Retrieved from http://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf Paris Agreement 12 David Markell and J.B. Ruhl, “An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual?” (2012) 64 FLA. L. REV. 15 (2012) at 27 Markell and Ruhl 13 UNEP, supra note 11 at 10 14 Ibid at 40 10

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a global regime with binding emissions reductions targets and.15 Domestic climate litigation has value as a regulatory mechanism, by providing the accountability that is currently missing at the international level and pressuring governments to pursue effective climate change policies.16

II. Research question There has been a lot of scholarly attention devoted to climate change litigation17, but the focus of this thesis is on litigation against a government for its failure to act, legislate or implement adequately or at all climate change mitigation or adaptation measures. In this type of situation, the plaintiffs are not suing their national government in a claim of a negative order, that is, to prevent something from happening, such as allowing the expansion of an airport18, issuing deep-sea oil and gas extraction19 or selling coal mines and coal-powered plants by a state-owned company.20 Rather, the plaintiffs are asking for a positive order: one that states that the inadequacy of climate-related legislation is infringing their rights. For instance, a common type of climate change litigation for governmental inaction relates to the state’s liability for its GHG emissions reduction policies. 21 This type of action raises issues about the judiciary’s scope of authority, as it is seen to disrupt the separation of powers between the executive or legislative and the judiciary. If the negative order against governments in climate change litigation does not raise the issue of justiciability because it is aimed at challenging a specific action already undertaken by the government, the positive order involves courts deciding that states should

Elizabeth Fisher, “Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA” (2013) 35:3 Law & Policy 236. 16 Harry M Osofsky, “The continuing importance of climate change litigation” (2010) 1:1 Climate Law at 5-7 Osofsky 2010 17 Some even characterise this as a “scholarly obsession”: Fisher, supra note 15 18 In re Vienna-Schwechat Airport Expansion, W109 2000179-1/291E. 19 Greenpeace Nordic Ass’n and Nature and Youth v. Norway Ministry of Petroleum and Energy, Oslo District Court (petition filed Oct. 18, 2016). 20 Environmental NGOs and private citizens in Sweden are challenging the sale of several coal-fired power plants and mines to the German subsidiary of a Czech holding company by Vallental, a corporation in which the Swedish government is the majority shareholder. 21 Samvel Varvaštian, “Climate Change Litigation, Liability and Global Climate Governance – Can Judicial Policy-making Become a Game-changer?” Berlin Conference “Transformative Global Climate Governance après Paris” 2016. 15

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enact appropriate regulations for mitigation or adaptation.22 The judicial reluctance that could arise in the latter scenario results from the perceived difference between action and inaction, and the belief that inaction is too amorphous to review. 23

This thesis seeks to explore the following question: is it the role of courts to adjudicate disputes over alleged government inaction to mitigate or adapt to climate change?

III. Method

To answer this question, this thesis will review the cases where a legal challenge is brought against the government for its inaction (which for the purpose of this paper includes inadequate action) with respect to climate change. This includes whether there is a complete lack of climate change policy or, more often, because of the alleged inadequacy of an existing policy. One point should be made at the outset. This thesis draw on examples of cases from a few jurisdictions only and is not a comprehensive comparative survey of all cases of climate change litigation for governmental inaction. The focus is on identifying the role of courts in adjudicating such cases and the factors that influence a finding of justiciability.

While a review of all cases is not the qithin the scope of this thesis, five cases that fit the criteria of a suit brought (1) against governments (2) alleging climate change inaction (3) for either adaptation or mitigation, have been selected.24

Peter HA Lehner, “Judicial Review of Administrative Inaction” (1983) 83 Colum L Rev 627634 Lehner 23 Ibid 24 The cases were selected using a climate change litigation database: The Climate Change Laws of the World Database maintained jointly by the Sabin Center for Climate Change Law and the Grantham Research Institute. This database was chosen because of its depth and reach into jurisdictions where the official language is not English and because it is the database used by the UNEP in its global review of climate change litigation and by the United Nations Climate Change Secretariat (“Secretariat”) in developing its climate legislation toolkit project: Grantham Research Institute on climate change and the environment, “Climate Change Laws of the World”, online: ; UNEP, UN Climate Change Secretariat & Commonwealth Secretariat, “New toolkit to help countries implement the Paris Agreement”, online: . Accessed 21/07/2017). 22

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Five cases for governmental inaction that have yielded at least a preliminary decision are chosen as the basis of the analysis, as well as three pending cases. Of these eight cases, three are from European countries (Netherlands25, Belgium26 and Switzerland27), three are from the United States28 and two from Pakistan. 29 30

While it is true that the exercise undertaken is one of comparative analysis of cases from different jurisdictions and legal systems, the method of applied horizontal comparative law informs the analysis. Comparative law is used as instrument of learning and knowledge about the role of courts in deciding cases of climate change litigation. 31 The complexity of the issue that the courts must address justifies the use of a polycentric comparative method.32 The analysis occurs on the horizontal plane, since the comparison will focus on one aspect (justiciability of climate change litigation for governmental inaction). 33

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Urgenda Foundation v Kingdom of the Netherlands, [2015] HAZA C/09/00456689, appeal filed Urgenda 26 VZW Klimaatzaak v Kingdom of Belgium, et al. (Court of First Instance, Brussels, 2015), case filed Klimaatzaak 27 Union of Swiss Senior Women for Climate Protection v Swiss Federal Parliament, case filed Swiss Senior Women 28 Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146, Juliana; Kain et Al v Massachusetts Dept of Environmental Protection, 2017 Massachusetts Supreme Judicial Court (available on http://cases.justia.com/massachusetts/supreme-court/2016-sjc11961.pdf?ts=1463497383); Zoe and Stella Foster et al v Washington Department of Ecology, No. 14-2-25295-1 SEA Foster 29 Leghari v Republic of Pakistan (2015) W.P. No. 25501/2015 Leghari; Ali v. Federation of Pakistan (Supreme Court of Pakistan 2016), case filed Ali 30 Thomson v. Minister for Climate Change Issues (High Court of New Zealand, Wellington, filed10 Nov. 2015), case filed Thompson One case was from Ukraine was not selected, as there were no English, French, Spanish or German translations available: Environment-People-Law v. Ministry of Environmental Protection (Commercial Court of Lviv, 2008) 31 Patrick Glenn’s “Aims of Comparative Law” lists four main functions of comparative law: (1) as an instrument of learning and knowledge (2) as an instrument of evolutionary and taxonomic science (of legal families, for example), (3) to contribute to one’s own legal system and (4) to harmonize law: Patrick Glenn, “Chapter 4: Aims of Comparative Law” in Jan Smits, Elgar Encyclopedia of Comparative Law, 2nd ed (Edward Elgar Publishing, 2006) ; Mark van Hoecke, “Methodology of comparative legal research” (2015) Boom Juridische Uitgevers, online: . 32 Mads Andenas & Duncan Fairgrieve, “Chapter 2: Intent on making mischief: seven ways to use comparative law” cited in Giuseppe Monateri, Methods of Comparative Law, (2012, Edward Elgar Publishing) Monateri. 33 Vernon Valentine Palmer, “From Lerotholi to Lando: Some Examples of Comparative Law Methodology” (2004) 2:4 Global Jurist Frontiers at 2; Clive Schmitthoff, “The Unification or Harmonisation of Law by Means of Standard Contracts and General Conditions” (1989) International and Comparative Law Quarterly, 17(3) at 565 Page 8 of 49

IV. Hypothesis In assessing the cases brought for governmental inaction related to climate change, two factors might be relevant to a judge’s decision to adjudicate.

First, the

constitutional context might influence such a decision, with judges from jurisdictions that have a constitutional right to a healthy or free environment more likely to find that the case is justiciable. Of course, not all democracies have constitutions, but the reference to “constitution” in this thesis encompasses laws that are akin to that of a constitution, such as the basic laws in the United Kingdom and Israel.

Second, the strength of the rule of law and the confidence in the government might also negatively affect a finding of justiciability, as courts from states with less adherence to the rule of law and greater distrust in the government might be more inclined to “fill in the gap”. This thesis starts by analysing the theoretical framework behind the concept of separation of powers, standing and justiciability (Chapter I), then reviews the case studies (Chapter II), before discussing the results and assessing the advantages and drawbacks of litigation (Chapter III). This thesis concludes with an assessment of the role of courts in assessing climate change litigation. CHAPTER I: CLIMATE CHANGE LITIGATION AND SEPARATION OF POWERS

I.

Judicial review and separation of powers

The doctrine of separation of powers is a fundamental concept of democratic governments and is often described as the “backbone of the constitution”. The modern understanding of the separation of powers is rooted in the equal status of the legislative, executive and judicial branch, who have no authority beyond that granted to them in the constitution.34 At the core of the principle of checks and balances, is the role of the judiciary to determine, in cases of dispute, the boundaries of authority and the legality of the activity of the two other branches.35

34 35

Aharon Barak, The Judge in a Democracy (Princeton University Press, 2008) at 36-7 Barak Ibid at 45 Page 9 of 49

Judicial review of the constitutionality of legislation is a regular occurrence in most democracies.36 In many countries where there is no explicit statement on constitutional review, such as the United States, courts have interpreted that judicial review of legislation is implied by the constitution.37

Judicial review also comes in degrees: some states allow for strong judicial review where judges have the authority to establish that a given statute will not be applied.38 This contrasts with weak judicial review, which involves ex-ante scrutiny of legislation but where courts may not decline to apply a legislation. The strong form of judicial review is often criticised as undemocratic because it enables a small number of unelected and unaccountable judges to bypass the will of citizens represented in the elected legislature, especially in democratic societies where the problem is not that legislative institutions are dysfunctional, but rather that citizens disagree about rights.39 Those in favour of judicial review see it as an attractive supplement to democratic institutions. It balances people will less political influence by enabling them to vindicate their rights against governments40, protects the rights and liberties of minorities41, and provides a practical alternative to constitutional amendments, which are by design difficult to pass. 42 While some modern democracies do not allow for the strong form of judicial review, such as the United Kingdom, the advent of

Heidi Ly Beirich, “The judicialisation of politics: Contemporary trends in research on European and other courts” (1999) 22:3 West European Politics 250; Peter W. Hogg and Allison A. Bushell, “The Charter Dialogue Between Courts and Legislatures (or Perhaps the Charter of Rights Isn’t a Bad Thing After All),” 35 Osgoode Hall L.J. 75, 83–84 (1997) 37 Barak, supra note 34 at 230 ; Jenny S. Martinez, “Horizontal Structuring” Martinez, in Micheal Rosenfield & Andras Sajo (eds), Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) at 26 Rosenfield & Sajo 38 Marbury v Madison, 5 U.S. 137, 170 (1803) Marbury; Annabelle Lever, “Democracy and Judicial Review: Are They Really Incompatible?” (2009) 7:04 Perspectives on Politics at 807 Lever 39 Jeremy Waldron, “The Core of the Case against Judicial Review” (2006) 115:6 The Yale Law Journal 1346 at 1406 40 Lever, supra note 38 at 815 41 Erwin Chemerinsky, “In defense of judicial review: the perils of popular constitutionalism” (2004) U Ill L Rev 673 at 689-90 42 Lever, supra note 38 at 815; These considerations of separation of power and legitimacy of the judiciary also inform the type of judicial decision-making, often labelled as judicial activism and judicial restraint: Zeev Segal, “Judicial Activism Vis-a-Vis Judicial Restraint: An Israeli Viewpoint” (2011) 47 Tulsa L Rev at 320 Segal; Richard A Posner, “The rise and fall of judicial self-restraint” (2012) California Law Review 519 at 521 36

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quasi-constitutional norms, enshrined for example in human rights treaties, has enabled the judiciary to engage in a quasi-judicial review.43 The need to find the appropriate balance between the judiciary’s role in upholding rights and keeping the other branches in check while not overstepping its mandate has given rise to legal concepts that determine when courts may decide contentious cases with political ramifications. The main two concepts are justiciability, which includes the infamous political question doctrine, and standing.

II.

Separation of powers in climate change litigation

There is a limit to what courts can do with regards to climate change mitigation or adaptation, but concerns of infringing the trias politica can confine the scope of judicial willingness to even hear cases concerning climate change. These concerns are expressed in different ways across domestic jurisdictions through some variation of the doctrines of standing and justiciability.

A. Standing Standing, or locus standi, refers to the criteria a plaintiff must satisfy to bring about an action.

44

Having very restrictive rules of standing limits access to justice, which

can create “black hole” situations, in which a legal norm has been violated but there is no possibility to review where and how it has been violated, nor any possibility for redress. In the case of government defendants especially, it undermines democracy and the rule of law.45 At the same time, courts use standing to avoid an “overjudicialization of the process of self-governance” and maintain the separation of

Christopher F Zurn, “Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law” (2011) 58:127 Theoria: A Journal of Social and Political Theory 63 at 64 Zurn; See also an account of how judicial review in the context of constitutional adjudication came to Europe: Leonard FM Besselink, “The proliferation of constitutional law and constitutional adjudication, or how American judicial review came to Europe after all” (2013) Utrecht Law Review. 44 UNEP, supra note 11 at 28 45 Barak, supra note 34 at 194 43

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powers.46 The rationale behind standing is to restrict the role of the judiciary, the least democratic branch, to that of protecting minority interests for whom political redress is unlikely.47

Standing criteria vary across jurisdictions, and it is outside of the scope of this thesis to review them all. In jurisdictions that require plaintiffs to show that they have suffered, or will suffer, a “particularised” injury caused by the defendant’s unlawful action or inaction, it difficult to demonstrate that government’s failure to legislate on climate change affects the plaintiff.48 In contrast, jurisdictions with standing criteria that allow claims based on injuries that affect the public make it easier for climate change claimants.49 American federal courts are an example of restrictive standing criteria affecting climate change litigation.50 Article III of the U.S. Constitution has been interpreted as granting standing51 to plaintiffs if they demonstrate (1) an injuryin-fact that is concrete and particularised and actual or imminent52, (2) causation that “fairly traces” an injury to the defendant’s conduct53 and (3) redressability.54

American plaintiffs in climate change litigation have trouble meeting the requirements of Article III.55 While courts have been willing to accept the demonstration of an injury-in-fact, most cases have failed to show causation and redressability. Because of the “super wicked” nature of climate change, causation by a single source has been impossible to demonstrate, and remediation from the curtailment of GHG emissions from a few sources has not been accepted as sufficient remedy.56 The

Antonin Scalia, “The doctrine of standing as an essential element of the separation of powers” (1983) 17 Suffolk UL Rev at 881 Scalia 47 Matt Handley, “Why Crocodiles, Elephants, and American Citizens Should Prefer Foreign Courts: A Comparative Analysis of Standing to Sue” (2002) 21 Rev Litig 97 at 109 Handley 48 UNEP, supra note 11 at 28 49 ibid 50 Handley, supra note 47 at 110 51 Article III of the Constitution refers to “case or controversy”, which has been interpreted as referring to standing: Lujan v Defenders of Wildlife, 504 U.S. 555, 574 (1992) Lujan cited in Michael Byers, Kelsey Franks & Andrew Gage, “The Internationalization of Climate Damages Litigation” (2017) 7:2 Washington Journal of Environmental Law & Policy at 274 Byers et al 52 Lujan at 560-61 53 Ibid 54 Byers et al, supra note 51 at 275 citing Daimler Chrysler Corp. v Cuno, 547 U.S. 332, 342 (2006) 55 Niran Somasundaram, “State Courts Solutions: Finding Standing for Private Climate Change Plaintiffs in the Wake of Washington Environmental Council v. Bellon” (2015) 42 Ecology LQ 491 at 501 Somasundaram 56 Ibid at 502 46

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court in Massachusetts v EPA relaxed the standing requirement for the state of Massachusetts to sue for injuries caused by the Environmental Protection Agency’s (EPA) failure to regulate GHG emissions from vehicles. The court found that the EPA’s failure to regulate GHG emissions caused an “actual and imminent” risk of harm to Massachusetts and found a “substantial likelihood” that judicial relief would prompt the EPA to take steps to reduce that risk.57 As for whether the same relaxed standing rules would apply for private citizens alleging injury caused by climate change, the U.S. Supreme Court (USSC) did not explain in Connecticut v AEP whether its finding that “some plaintiffs have Article III standing” applies to both private and state plaintiffs.58

Hopes of relaxed standing criteria for private plaintiffs were quashed in Native village of Kivalina v ExxonMobil. In that case, a native Alaskan village brought a claim for public nuisance against multiple oil companies for contributing to climate change, which was forcing the villagers to relocate due to sea ice erosion. 59 The Ninth Circuit court rejected the claim that an order for stricter regulations of the oil refineries would redress the plaintiffs’ alleged injuries, citing the global nature of climate change.60 This decision was in contrast to Massachusetts, resulting in the nonsensical Massachusetts v EPA, 549 US 497 (2007) at 517-521 [Massachusetts]; Hari M. Osofsky, “The Geography of Climate Change Litigation Part II: Narratives of Massachusetts v EPA” (2008) 8 Chicago J Int’l L 573 at 574; Kirsten Engel, “State standing in climate change lawsuits” (2011) Journal of Land Use 26 at 267 58 In AEP, eight states, the city of New York and various non-governmental organisations (NGOs) sued the same electric power corporations that owned and operated fossil-fuel power plants under public nuisance law for ongoing contribution to global warming. The Supreme Court rejected the claim, holding that the plaintiffs could not sue based on the federal common law of public nuisance because it was displaced by a federal statute, the CAA, which spoke directly to the question at issue: American Electric Power Company v Connecticut, 564 U.S. 410 (2011) AEP; Bradford C Mank, “No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit’s Decision in Washington Environmental Council V. Bellon” (2014) 63:5 American University Law Review; Washington 1525 at 1528 59 While the majority of the court dismissed the case on other grounds without mentioning standing, Justice Pro affirmed the district court’s holding that the plaintiffs did not have standing, due to a failure to establish causation, holding that it would allow a private party to “pick and choose amongst all greenhouse gas emitters throughout history to hold liable for millions of dollars in damage” Native Village of Kivalina v ExxonMobil Corp, 696 F 3d 849 at 11657 (9th Cir 2012) Kivalina; Karine Péloffy, “Kivalina v. Exxonmobil: A Comparative Case Comment” 9:1 McGill Journal of Sustainable Development Law 2013 at 125 ;Washington Environmental Council v Bellon, 732 F.3d 1131, 1135-36 (9th Cir. 2013) Bellon; 60 Ibid; Similarly, in Comer v Murphy Oil USA, 585 F.3e 855, 860(eth Circ.2009), the Fifth Circuit Court of Appeals found that plaintiff landowners affected by Hurricane Katrina did not have standing to sue fossil fuel and chemical companies for their GHG emissions leading to climate change and thus indirectly to the Hurricane. 57

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explanation that the relaxed standing criteria for causation and redressability in climate change litigation only applies to state plaintiffs.61

The narrow and subjective test for standing in the American federal courts can be contrasted with the approach taken by the Australian courts, which found that several plaintiffs who were objecting to licenses for a new power station had standing because of the incremental GHG increase was material enough to satisfy the standing criteria.62 It can also be differentiated from the easier access to courts for NGOs and citizens in Europe, where article 9(3) of the Aarhus Convention applies and holds national legislators to a minimum standard for access to justice for NGOs in environmental matters.63

B. Justiciability: political question Justiciability refers to the ability to claim a remedy in front of an independent and impartial body when a violation of a right has occurred, or is likely to occur. 64 65 A way to assess whether the judiciary has manageable tools and standards to decide complex cases is the concept of the political question doctrine, developed by the USSC and adopted in a few other legal systems. 66

The political question doctrine requires judicial restraint with respect to legal questions that are more suited for resolution by the elected branches of

61

Ibid at 505 Dual Gas Pty v Environmental Protection Authority 2012 VCAT 308, cited in UNEP, supra note 11 at 29 63 United Nations Economic Commission for Europe, “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Aarhus Convention 2161 UNTS 447’ accessed 2017.07.30; Simone Benvenuti, “Access to Justice in Environmental Matters: Which Role for the European Networks of Judges?” (2014) 11:2 Journal for European Environmental & Planning Law 163 at 166 64 Christian Courtis for the International Commission of Jurists, Courts and the legal enforcement of economic, social and cultural rights: comparative experiences of justiciability (Geneva: International Commission of Jurists, 2008), available at https://www.humanrights.ch/upload/pdf/080819_justiziabilitt_esc.pdf , Accessed 2017-05-31 Courtis 65 Hugh S. Wilkins, “The Justiciability of Climate Change: A Comparison of US and Canadian Approaches” (2011) 34 Dalhousie LJ 529 at 531 [Wilkins]; 66 Baker v Carr, 369 U.S. 186 (1962) [Baker]; UNEP, supra note 11 at 27; Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Toronto: Carswell, 1999) at 229 62

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government.67 The USSC imposed this restriction on itself in the foundational case of Marbury v Madison.68 The modern articulation of the political question doctrine occurred in Baker v Carr, where Justice Brennan laid out six situations precluding a finding of justiciability.69 In AEP, the Second Circuit court found that the claim was indeed justiciable, after a thorough application of the Baker test.70 While the USSC dismissed AEP because of the doctrine of displacement, it did not overturn the circuit court’s findings on justiciability and the political question doctrine. 71 However, similarly to the first instance decisions in AEP, the court dismissed the case in Kivalina because of the second and third Baker factors, citing concerns that the resolution of the question would move the judiciary beyond its area of expertise. 72

While continental European administrative law does not employ a test similar to those in many common law jurisdictions, the boundaries between the “legal” and the “political” are just as ambiguous and judges everywhere are required to make policy Courtis, supra note 64 at 75;Ron Park, “Is the Political Question Doctrine Jurisdictional or Prudential” (2016) 6 UC Irvine L Rev 255, available at http://www.law.uci.edu/lawreview/vol6/no2/Park.pdf (Accessed 2017.06.15); Bradford, Gregory, “Simplifying State Standing: The Role of Sovereign Interests in Future Climate Litigation” Boston College Law Review, Newton Centre 52.3 (May 2011) 1065 at 1103. 68 The court in Marbury interpreted Article I-III of the United States Constitution, combined with the jurisprudence on “case or controversy”, which led to the concept of justiciability: Marbury, supra note 38; Ashley E Breakfield, “Political cases or political questions: The justiciability of public nuisance climate change litigation and the impact on Native Village of Kivalina v ExxonMobil” (2011) 17 Hastings W-Nw J Envt’l L & Pol’y 39 at 41 Breakfield 69 Baker, supra note 66: 1. [A] textually demonstrable constitutional commitment of the issue to coordinate political department; or 2. a lack of judicially discoverable and manageable standards for resolving it; or 3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or 4. the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or 5. an unusual need for unquestioning adherence to apolitical decision already made; or 6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 70 Connecticut v American Electric Power Co, 582 F 3d 309 (2d Cir 2009) at 321; Because the Supreme Court was evenly divided (4:4) on this issue, the decision of the circuit court on justiciability remains intact. 
 71 California v General Motors Corp., No. C06-05755 MJJ slip op., 2007 WL 2726871 at para 109 [General Motors]; Shawn M LaTourette, “Global Climate Change: A Political Question” (2008) 40 Rutgers LJ 219 at 243 LaTourette 72 Kivalina, supra note 59 at paras 21-32; cited in Marilyn Averill, “Getting into court: standing, political questions and climate tort claims” (2010) 19:1 Review of European, Comparative & International Environmental Law 122 at 124 (footnote 11); The case was not permitted to be heard on appeal at the ninth district circuit court, nor at the Supreme court level: Native village of Kivalina v. ExxonMobil, 1165 67

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choices. Some of these policy choices are especially difficult to make in the context of litigation about governmental inaction on climate change. Cases that are very similar on the facts or which were mirrored based on successful precedents can yield different results based on the judiciary’s ruling on justiciability.

CHAPTER II: LITIGATION FOR GOVERNMENTAL INACTION

Using the codifying method of comparative law, the following case studies are examined in light of the two hypotheses. First, the case of Urgenda v the Netherlands will be examined to determine whether judges from jurisdictions that have a freestanding right to a healthy environment enshrined in the constitution are more likely to find that there is justiciability.73 For the second hypothesis, that the strength of regulatory governance also negatively impacts the chances of success of climate change litigation, the case of Leghari v Pakistan will be examined.74 This chapter will conclude with an analysis of the decisions of Juliana v Trump, Kain v DEP and Foster v DOE in the United States.75

I.

Urgenda: Adjudication in the context of a right to a healthy environment

In the Dutch case of Urgenda, an environmental group, the Urgenda Foundation, and 866 Dutch citizens sued the government of the Netherlands, alleging that it was acting in violation of its constitutional duty of care by pursuing an emissions reduction target of 16 percent compared to 1990 level for 2020, which was lower than the range of 25-50 percent reduction target endorsed in the Cancun Agreement for Annex I Parties.76 For Urgenda, the fact that the emissions occur on the territory 73

Urgenda, supra note 25; An unofficial English translation is available on the website of Urgenda, as well as on the website of the Hague district court: www.urgenda.nl/documents/VerdictDistrictCourtUrgendavStaat-24.06.2015.pdf and http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196; The case is awaiting to be tried on appeal. 74 Leghari and Rehab Ali, supra note 29 75 Juliana, Kain and Foster, supra note 28 76 FCCC/CP/2010/7/Add.1; Specifically, Urgenda sued on three grounds. First, that the Netherlands had failed its duty to protect and improve the country’s environment based on article 21 of the Dutch constitution. Secondly, the plaintiffs argued that articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention on Human Rights imposed a positive duty on the Page 16 of 49

of a state, which has sovereign power and can manage and regulate the emissions, means that the state has a systemic responsibility for the total GHG emissions level of the Netherlands.77 Urgenda sought the recognition of a number of facts regarding climate change as accurate, and requested a mandatory reduction order that would specify that the government must enact policies with a goal of reducing emissions by 40% compared to 1990 levels, with a minimum of 25% by 2020; or, alternatively, a reduction order of at least 40% compared with 1990, by 2030.78

The Dutch government argued that it has no legal obligations under either national or international law. Central to the government’s argument was that allowing even part of the claim would be contrary to the doctrine of separation of powers and impede on the state’s discretionary authority, thereby harming its negotiating position in international politics.79 The court supported Urgenda’s position that the Dutch policy for 2020 is insufficient in light of climate science and international climate policy and issued a reduction order to instruct the Dutch government to create policies that would reduce GHG emissions by at least 25% compared to 1990 levels by 2020.80

The court found that Dutch civil law supports environmental organisations bringing

Netherlands to take better measures to guarantee those rights, which are threatened by climate change. Finally, that by failing to enact stronger mitigation measures, the Netherlands breached its duty of care based on article 6:162 of the Dutch civil code: Jolene Lin, “The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment)” (2015) 5:1 Climate Law 65 at 70 Lin; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) ECHR 77 Roger Cox, “A climate change litigation precedent: Urgenda Foundation v The State of the Netherlands” (2016) 34:2 Journal of Energy & Natural Resources Law 143 at 148 Cox. Cox was one of the counsels for Urgenda and the brain behind the idea for the litigation in the first place. 78 Urgenda, supra note 25 at para 3.1; Josephine van Zeben, “Establishing A Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?” (2015) Transnational Environmental Law van Zeben: The court accepted as a finding of fact the findings of the Intergovernmental Panel on Climate Change (IPCC) that temperature rise above 2C compared to 1990 levels would create dangerous anthropogenic climate change, which was not contested by the defendant. Instead, the key disagreement between the two parties concerned the speed at which these reductions in emissions would take place. 79 Cox, supra note 77 at 149 80 Urgenda, supra note 25 at paras 4.85-86; van Zeben, supra note 78 at 344; As an NGO, the court denied Urgenda’s claim of a directly enforceable right based on the ECHR or the international law’s “no harm” principle (Trail Smelter), but referred to these in its interpretation of the duty of care under Dutch civil law. Page 17 of 49

claims without having to identify or act on behalf of a particular group of people.81 The court zeroed-in on the statutory aim of Urgenda, which is to “create a more sustainable society, starting in the Netherlands” and interpreted it as inherently intergenerational and transboundary. 82 Because Urgenda’s articles of association include the protection of the interests of future generations and individuals outside the Dutch territory, the court held that Urgenda had standing.83 For legal commentators, the ground-breaking aspect of the decision was the reduction order. The court was aware that it might be perceived as overstepping the competences of the judiciary and proceeded to explain that the Dutch constitution does not provide for a strict separation of powers, but a system of checks and balances on how the other branches of government perform their duties and functions.84 In such respect, the court accepted the petitioners’ distinction between a political decision and a legal decision with political consequences, drawn from the language in Massachusetts. In Urgenda, the court accepted the doctrine of progressive litigation, that is the idea that courts have a unique role to play in regulatory action. 85 The court was aware of the fine line it was threading between judicial activism and protection of rights, but beyond an acknowledgment that a reduction order could damage Netherland’s position in the negotiations for the Paris Agreement, the court did not assess this element further in its decision. 86 The court held that the mandatory order was firmly within its competence. Since the government retained discretion on how to implement it, the court did not encroach on the legislative or executive branches of

81

Urgenda, supra note 25 at paras 4.5-4.10; van Zeben, supra note 78 at 345-6 Ibid 83 K J de Graaf & J H Jans, “The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change” (2015) 27:3 Journal of Environmental Law 517 at 522 de Graaf & Hans. As for the determination of causality, Urgenda marks the first time in climate change litigation for government inaction where a court clearly bypasses the “drop in the ocean” argument, specifying that the fact that the amount of Dutch emissions is low compared to other countries does not change the joint and individual responsibility of the Netherlands, a signatory to the UNFCCC. 84 de Graaf & Hans, supra note 83 at 523 85 The petitioners argued that the doctrine of separation of powers in the context of climate change litigation is much better developed in American law than in the Netherlands: Suryapratim Roy & Edwin Woerdman, “Situating Urgenda v the Netherlands within comparative climate change litigation” (2016) 34:2 Journal of Energy & Natural Resources Law 165 at 178-9 Roy & Woerdman 86 Jolene, Lin. “The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment).” Climate Law 5, no. 1 (2015): 65–81 at 80 82

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government.87 Despite the possibility that Urgenda might be overturned on appeal, it has been hailed as a landmark decision as the court required a state to change its approach to climate change based on a legal argument that is not related to a statutory mandate.88 Furthermore, it has been viewed as a global precedent that could be transplanted in other legal systems, with a clear intent to do so by the petitioners (who have translated their statement of claims and the decision in English). 89 Two cases inspired by Urgenda are now awaiting trial: Klimaatzaak v Belgium90 and Senior Swiss Women v Swiss Federal Parliament. 91 Despite the ground-breaking first instance decision in Urgenda, it remains possible that the decision will be reversed on appeal. Given that the government does not contest the science of the claim, the grounds for reversal would most likely turn on the ability of the courts to dictate policy-making in the climate change realm.

II.

Leghari: Judicial activism in a competitive authoritarian regime

The Lahore High Court Green Bench of Pakistan ruled in favour of petitioner Ashgar Leghari, a farmer who sued the national government for failing to carry out the 2012 National Climate Policy framework, especially its adaptation measures. In a very 87

van Zeben, supra note 78 at 354 Lin, supra note 86 at 67 89 Roy & Woerdman, supra note 85 at 166 90 Klimaatzaak, supra note 26; for an unofficial translation of the petitioners’ request, online: < http://klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf> (Accessed 2017.08.06) In Klimaatzaak, the plaintiff NGO (Klimaatzaak) is suing four Belgian authorities (three states and the federal government) for failure to implement adequate climate change mitigation measures. Petitioners demand that the defendants respect their pledges in the Cancun Agreement of reducing GHG emissions by 40 per cent compared to 1990 levels by 2020. The Flemish government is now seeking to appeal to the highest court (Cour de cassation) the two judgments of lower courts rejecting its request to divide the procedure in French and Dutch.: “L’affaire climat”, online: (Accessed 2017.08.04) 91 Senior Swiss Women, supra note 26; for an unofficial translation of the petitioners’ request, online: < http://klimaseniorinnen.ch/wp-content/uploads/2017/05/request_KlimaSeniorinnen.pdf> (Accessed 2017.08.06) Also inspired by Urgenda is the case of a group of older women in Switzerland alleging that the Swiss Government has infringed article 10 (right to life), 73 (sustainability principle), and 74 (precautionary principle) of the Swiss Constitution and articles 2 and 8 of the ECHR by not adopting better climate change mitigation policies. The court will have to decide whether it accepts the petitioners’ arguments that the fact that the government has acted, in a field does not justify the court’s automatic withdrawal from assessing the legality of the action or inaction. 88

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succinct judgment that does not mention the separation of powers, the court cited domestic and international legal principles to determine that the “delay and lethargy of the State in implementing the Framework offend the fundamental rights to life, human dignity, information and property as enshrined in the Pakistani constitution of the citizens”.92 The court then ordered that government ministries each nominate a climate change representative to ensure the implementation of the framework. The court also mandated the creation of a Climate Change Commission 93, for which it named representatives in a supplemental decision.94 The court was in a position to conclude that the government had failed to implement the law because the responsible ministries had articulated 734 “action points” and identified 232 of the points as highly urgent, which made it easy to prove the inaction of the government in implementing this detailed plan.95 Unlike the Netherlands in Urgenda, there is no right to a healthy environment enshrined in the Pakistani constitution, but article 9 (right to life) has been interpreted as including the right to a healthy environment. 96 However, the Pakistani Constitution reflects its Westminster influence and provides judicial review, as well as the opportunity to void any legislation that does not conform to the Constitution, unlike most continental Europe constitutions.97 In addition to the reference to judicial review in the Pakistani Constitution, the Supreme Court’s original jurisdiction enables it to consider “questions of public importance”,

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Leghari, supra note 29 at para 8, online: < http://edigest.elaw.org/sites/default/files/pk.leghari.090415.pdf> (Accessed 2017.08.06) 93 Climate Change Laws of the World database, Grantham Research Institute on Climate Change and the Environment and Sabin Center for Climate Change Law. Available at: http://www.lse.ac.uk/GranthamInstitute/Legislation/, online: (Accessed 2017.08.06) CCLW database 94 Ibid 95 UNEP, supra note 11 at 16; Since Leghari, another petition has been filed directly at the Supreme Court against Pakistan’s federal government and against the Province of Sindh by Rahab Ali, a 7year-old girl living in a regional with expected coal field development. The petitioner alleges that the government’s continued inaction in climate change mitigation and adaption violates her human rights and the public trust doctrine regarding Pakistan’s atmosphere and climate. While Rahab Ali concerns in part governmental inaction, the focus of the case is the contestation of the government’s plan to develop coal fields as part of a joint economic plan with China, which does not raise as much the problem of judicial encroachment in the other branches: Rahab Ali, supra note 29 96 UNEP, supra note 11 at 16; Constitution of Pakistan (2015 update) (official translation). Available at: http://www.pakistani.org/pakistan/constitution/part2.ch1.html 97 Ibid at Article 8: Laws inconsistent with or in derogation of fundamental rights to be void. (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void. Page 20 of 49

and confers upon judges the power to issue writs should the enforcement of fundamental rights require it.98

Pakistani courts are also tasked with interpreting a constitution that uses vague, open-ended expressions such as “equality before the law”, which call for a high degree of interpretation and the creation of legal tests and requirements.99 The Supreme Court of Pakistan has also interpreted the article on judicial review as enabling the judiciary to not only strike down laws that they it deems repugnant against human rights, but also issue political directives to enforce these rights, as illustrated by the establishment of a Climate Change Commission (and subsequent nomination of its members) by the court in Leghari.100 This judicial activism is an indirect result of Pakistan’s familiarity with dictatorships; as the country has been ruled by the military for almost half of its existence and marked by coups happening in almost every decade.101 The Pakistani courts’ micromanagement and politicised nature should be viewed in light of the institutional vacuum left by a corrupt executive and legislative and the direct consequence of the dysfunction of the state.102 In a country that has an overwhelmingly strong military in charge, a stronger and more powerful judiciary is a welcome check, which is why the court had no problem adjudicating in Leghari.103

Sanaa Ahmed, “Supremely Fallible? A Debate on Judicial Restraint and Activism in Pakistan.” ICL Journal 9, no. 2 (2015): 213 at 219, 222 99 Ibid; For example, the right has been interpreted as including the right to live in a safe and clean environment, as well as the entrenchment and application of the precautionary principle of international environmental law. 100 Even the judiciary itself is not safe from interference from the other branches, as the 2007 conflict between General Musharraf and Chief Justice Chaudhary over judicial investigations into the military’s illegal detention of terrorist suspects show resulted in the dismissal of C.J Chaudhary (and 60 other judges). The social and political backlash ended General Musharraf’s coup, but it was with great reluctance (and fear over corruption investigations) that the new (civilian) President, Mr. Gilani, restored the former justices. Recently, the Pakistan Supreme Court disqualified Prime Minister Nawaz Sharif for money laundering revealed by the Panama Papers: Aqil Shah, “Pakistan’s Court Sets a Dangerous Precedent” (2017.07.28) New York Times online:< https://www.nytimes.com/2017/07/28/opinion/why-ousting-nawaz-sharif-sets-a-dangerous-precedentfor-pakistan.html> (Accessed 2017.08.06) 101 Ahmed, supra note 98 at 225 102 Ibid 103 Ibid; However, the judiciary in Pakistan is far from being perfect, plagued by problems of corruption, delays and general lack of accountability: Reema Omer, “Year of Judicial Accountability of Pakistan”, (2016.05.23) International Commission of Jurists, online:< https://www.icj.org/pakistanyear-of-judicial-accountability/> (Accessed 2017.08.06) 98

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III.

Atmospheric trust litigation in the United States

Despite the restrictive approach to standing and the political question doctrine showed in American courts, it did not discourage an environmental NGO, Our Children’s Trust (OCT), from suing the federal and state governments for climate change inaction. Along with other NGOs, OCT launched a lawsuit based on the old common law doctrine of public trust, which it argued informed a uniform sovereign trust duty of the government to protect natural resources that cannot be owned, such as the atmosphere, for current and future generations.104 Based on this atmospheric trust litigation (ATL), the petitioners, mostly children and teenagers, demanded enforceable climate recovery plans from the trustees, state and federal governments, to reduce GHG emissions at the rate called for the best current and available science.105 In Foster,106 OCT sued successfully the Washington Department of Ecology (DOE) for failing to adopt and implement stricter greenhouse gas emissions regulations based on the most current climate science, arguing that the DOE violated its constitutional obligations to protect resources, respect statutory obligations and executive orders and infringed their rights under the atmospheric trust doctrine 107. The court ordered the DOE to consider the best available climate science when setting GHG emissions restrictions, seemingly in stark contrast to the previous deferential treatment allocated to the government in other climate change lawsuits. The petitioners knew the difficulties of compelling a state legislature to act, as the Washington court of appeals had denied holding the legislature accountable for failing to take scientifically-based action to reduce emissions, partly because it considered climate change a political question.108 Indeed, the Washington court of appeals held in Stivak that because the challenge was “essentially to state inaction”, the petitioners sought to “compel the State to create an economy-wide regulatory Mary Christina Wood & Charles W Woodward IV, “New law for a new normal: Atmospheric trust litigation and the constitutional right to a healthy climate system: judicial recognition at last” (2016) 6 Wash J Envtl L & Pol’y 633 at 644 Wood & Woodward 105 Ibid 106 Foster, supra note 28 107 Michael C Blumm & Mary C Wood, “‘No Ordinary Lawsuit’: Climate Change, Due Process, and the Public Trust Doctrine” (2017), (2017) American University Law Review 67:1 online: Blumm & Wood 108 Foster, supra note 28 104

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program to address climate pollution even if the State's inaction does not violate any specific constitutional provision or other law on which relief can be granted. There is no assertion here that a legal right was denied by the other party”.109 The court in Stivak denied the order based on lack of justiciability, further explaining that “it is not the role of the judiciary to second-guess the wisdom of the legislature  because the state constitution does not address state responsibility for climate change, it is up to the legislature, not the judiciary, to decide whether to act as a matter of public policy especially where the legislature has already acted”.110 In Foster, the petitioners avoided such a finding by first petitioning the DOE to adopt regulations that would recommend to the legislature stricter GHG emissions limits. When the DOE refused the petition, it provided the plaintiffs with the “affirmative state action’’ needed to enable judicial review under the Administrative Procedure Act.111 Judge Hill then proceed to find for the petitioners, ordering to the DOE to reconsider its denial of the petition and to report back within two weeks. 112

Similarly, the Massachusetts Supreme Judicial Court decided unanimously to reverse the first instance court’s decision and granted the order requested that the Department of Environmental Protection (DEP) take additional measures to implement the 2008 Global Warming Solutions Act in Kain.113 In Kain, the youth plaintiffs, represented by OCT, started by petitioning the DEP to undertake rulemaking. On direct appeal to the Massachusetts Supreme Judicial Court, the court found that statutory interpretation is the duty of courts and that the “principle of

109

Adora Svitak et al v State of Washington, (2013) 69710-2 Washington Court of Appeals at 4-5 http://www.courts.wa.gov/opinions/pdf/697102.pdf Svitak 110 Ibid at 5-6 111 Daniela Lapidous & Sabin Center for Climate Change Law, “WA Court Affirms Best Available Climate Science as Basis for Emissions Reduction Goals”, online: Climate Law Blog (Accessed 2017.08.10) 112 Foster, supra note 28 at 4; The governor of Washington directed the DOE to initiate a new GHG policy. The DOE then denied once again the plaintiff’s petition, citing that it was following the governor’s directive and had started the rulemaking process, which was upheld in Judge Hill’s second opinion. The the judicial saga was not over, and Judge Hill had to intervene a third time just three months after the dismissal, as DOE dropped its rulemaking process. The court agreed with the petitioners that there were exceptional circumstances due to climate change and ordered the DOE to finalise its rule and to consult with the plaintiffs. 113 Kain, supra note 28 Page 23 of 49

according weight to an agency’s discretion is one of deference, not abdication”. 114 As a result of the court’s order, the Massachusetts Governor enacted an executive order directing the Secretary of Energy and Environmental Affairs to prepare and implement a comprehensive plan that requires the DEP to establish regulations with annual reduction targets for 2017.115

In Juliana, OCT, on behalf of young plaintiffs, is suing the federal government for violation of constitutional rights.116 The petitioners are seeking a judicial order requiring the government to prepare and implement an enforceable national remedial plan to stabilise the climate system based on the best available science. 117 The case has yet to reach a hearing on the merits, as the defendants filed a motion to dismiss based on lack of justiciability. This motion was denied by the federal district court, which found the case justiciable and that the petitioners had standing.118 In her analysis of the Baker test, Judge Aiken recognised the need for an appropriate balance between the three branches, but stated that a court could not “simply err on the side of declining to exercise jurisdiction when it fears a political question may exist” and that “climate change policy is not inherently, or even primarily a foreign policy decision”.119 She further concluded that the court should be careful of separation of powers problems should it choose to issue the requested declarative order.120 As for standing, Judge Aiken rejected the government’s claim that climate change harms everyone on Earth and thus the plaintiff’s injuries are a “nonjusticiable generalized grievance”. She found that there was concrete and particularised, actual and imminent harm.121 She further found that she did not have to engage in a profound causality analysis, as this was a preliminary stage. For the third standing factor, Judge Aiken held that the injuries could be redressed by judicial relief, since 114

Ibid at 4 Our Children’s Trust, “Washington”, online: Our Children’s Trust (Accessed 2017.08.10) 116 Juliana, supra note 28 cited in Blumm & Wood, supra note 107 at 20 117 Juliana, ibid; Julia Olson, “Youth and climate change: an advocate’s argument for holding the US government’s feet to the fire” (2016) 72:2 Bulletin of the Atomic Scientists 79. 118 Juliana, supra note 28 at 5-10 119 Ibid at 3-4; cited in Blumm & Wood, supra note 107 at 24 120 Ibid at 9 121 Ibid at 9, cited in Blumm & Wood, supra note 107 at 27 115

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the federal government had control of a substantial amount of global GHG emissions, and that a reduction of these emissions would reduce pollution and slow climate change.122 Since that decision in November 2016, the Trump administration has attempted to appeal the decision at the Ninth Circuit Court of Appeals, and the American Petroleum Institute (API) and the National Association of Manufacturers sought to be removed as defendant-interveners in the case.123

CHAPTER III: THE ROLE OF THE JUDICIARY IN ADJUDICATING CLIMATE CHANGE LITIGATION FOR GOVERNMENTAL INACTION

Having overviewed the theoretical framework for the separation of powers in climate change adjudication in Chapter I, and its concrete application in the climate change litigation cases in Chapter II, this chapter assesses whether the two hypotheses were proven to be accurate (Part I), and balances the pros and cons of adjudication (Part II).

I.

Factors influencing a finding of justiciability

A. The positive relationship between a finding of justiciability and a constitutional right to a healthy environment

The first hypothesis was that a finding of justiciability would be easier in jurisdictions with constitutions that stipulates a right to a clean or healthy environment. This was based on the findings of Professor David Boyd, who analysed ninety-two nations whose constitutions recognise the right to a healthy environment in order to

122

ibid Judge Aiken denied the motions to appeal her November 2016 decision. In June 2017, the Trump administration sought a writ of mandamus petition with the Ninth Circuit Court of Appeals, seeking a rare review of the November 2016 decision, claiming that the Ninth Circuit should “exercise its supervisory mandamus powers to end this clearly improper attempt to have the judiciary decide important questions of energy and environmental policy to the exclusion of the elected branches of government.” As of July 28 th, 2017, the panel of the Ninth Circuit is awaiting the plaintiffs’ answer to the government’s petition for a writ of mandamus, expected at the latest on August 28th, 2017. Our Children’s Trust, “Landmark US Federal Lawsuit”, online: Our Children’s Trust < https://www.ourchildrenstrust.org/federal-proceedings> (Accessed 2017.08.10) 123

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investigate the added benefit of constitutional environmental provisions.124 Using seven metrics of environmental performances in a qualitative statistical assessment, he found a consistent relationship between constitutional provisions and superior environmental performance, such as stronger environmental legislation, enhanced public participation in environmental governance, and higher rates of enforcement of environmental laws.125 While a minority of courts around the world do not recognise the right to be justiciable, overall Professor Boyd found that having such a right increased the role of courts in protecting the environment and levelled the playing field with competing social and economic rights.126 With such positive advantages of having a constitutional right to a healthy environment, the hypothesis was that it would also factor in a finding of justiciability in climate change litigation. This was confirmed at least in Urgenda, where the right to a healthy environment enshrined in Article 21 of the Dutch Constitution informs the open standing for the duty of care, upon which the state was found liable. Article 21 of the Dutch Constitution obliges the state to secure its citizens with a habitable environment.127 Because of this constitutional enshrinement, citizens and NGOs have the right to invoke the government’s duty of care in court, as in Urgenda, thereby increasing the chances of a finding of justiciability.128

Therefore, a constitutional right to a clean environment, or a constitutional duty on the government to protect the environment may increase the likelihood of a finding of justiciability. The question remains whether the absence of such a right hinders a climate litigant’s case. Answering that question would likely require a larger pool of cases, preferably in jurisdictions that have similar legal and procedural rules. In the absence of such data, this thesis relies on doctrinal arguments to advance the idea that the constitutional right to a healthy environment impacts a finding of justiciability David R Boyd, “The Constitutional Right to a Healthy Environment” (2012) 54:4 Environment: Science and Policy for Sustainable Development 3 at 4 Boyd 125 Ibid at 12 126 This is the case in South Korea, Spain, the Czech Republic, Slovakia, and Paraguay, where courts are constrained by constitutional languages requiring that the right be enforced pursuant to an enabling legislation: ibid at 8-9 127 Urgenda, supra note 25 at 2.69: “Article 21 of the Dutch Constitution reads as follows: It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment” 128 European e-Justice, “Access to justice in environmental matters- Netherlands” Rebecca Bratspies, “Do We Need a Human Right to a Healthy Environment?” (2015) 13:1 Santa Clara Journal of International Law. 124

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both positively and negatively. Indeed, recognition of such a right could clarify the obligations that states have for environmental protection and provide the opportunity to seek redress through courts without having to go through other doctrines, as the plaintiffs of Foster, Kain and Juliana did with their recourse to ATL. A right to a healthy environment elevates issues like climate change “above the rank … of competing societal goals”.129 Having such a right in the constitution can positively influence a finding of standing, providing increased accountability and access to justice. For instance, in Kivalina, the Ninth Circuit court differentiated standing to pursue a statutory right to challenge the failure of the EPA to regulate adequately.130 Having a constitutionally enshrined right to a healthy environment could ease a finding of standing and enable plaintiffs to meet the first factor of the Lujan test, thus proving the “injury in fact”.

The experience of Urgenda compared to unsuccessful cases such as Kivalina shows that having a constitutional right to a healthy environment is beneficial with respect to a court’s finding of justiciability. At a minimum, it provides a way for courts to review the inaction without plaintiffs having to go through the act of first petitioning the state, as the plaintiffs did in Kain, Foster and Juliana. It remains to be seen whether the cases in Klimaatzaak and Senior Swiss Women, both of which are being litigated in jurisdictions with a constitutional right to a healthy environment, will follow the path of Urgenda. Further studies should also be conducted about whether the lack of a constitutional right to a healthy environment hinders a finding of justiciability in climate change cases.

B. The positive relationship between competitive authoritarian constitutional states and judicial activism in climate change litigation

The second proposed hypothesis was that the strength of the rule of law and the confidence in the legislative and executive branches would also affect a finding of Philip Alston, “Making Space for New Human Rights: The Case of the Right to Development” (1988); 1 Harvard Human Rights Yearbook 3:3 cited in Rebecca Bratspies, “Do We Need a Human Right to a Healthy Environment?” (2015) 13:1 Santa Clara Journal of International Law at 42 Bratspies 130 Kivalina, supra note 59 at 11675 129

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justiciability. That is, in countries where the rule of law and confidence in the legislative and executive branches of government is weak, courts would be inclined to fill the legislative and democratic void by legislating environmental protections. This was illustrated in the example of the judiciary’s role in Pakistan. The court’s decision in Leghari exhibited what would be considered extreme judicial activism in a democratic state with strong separation of powers. One explanation for this strong judicial activism was the balancing role it played given the authoritarian nature of the Pakistani government. More accurately, the nature should be characterised as a “competitive authoritarian” regime, as defined by Levitsky and Way. In such regimes, formal democratic institutions are viewed as the principal means of exercising authority, but the rules are violated so often that the regime fails to “meet the conventional standards for democracy.”131 Competitive authoritarianism falls short of democracy, but is not synonymous with full-scale authoritarianism; incumbents in competitive authoritarian regimes are unable to go so far as to eliminate formal democratic rules. 132 In the judicial sphere, this translates into routine attempts by the executive to subordinate the judiciary, as evidenced by the 2007 crisis in Pakistan. Yet the fact that formal judicial independence and an executive with limited powers still exists allows the judges to enforce checks on to the government’s executive and legislative powers.133 Pakistan’s regime fits into the category of competitive authoritarian states, and the 2007 situation in which the military tried to remove the Chief Justice, only to face counter-protest that led to the dismantling of the government, is a practical example of the role of judicial independence in such regimes.134 The hypothesis that justiciability is more likely to be found in countries that have a weak rule of law is exemplified by the active role of the Pakistani judiciary in protecting the rights of

Steven Levitsky & Lucan Way, “The rise of competitive authoritarianism” (2002) 13:2 Journal of democracy 51 at 52 Levitsky & Way 132 ibid at 53 133 ibid at 57 134 Faisal Shahzad, “Pakistan, currently, is a competitive authoritarian regime and not a democratic one” (2016) The Nation, “http://nation.com.pk/blogs/09-Mar-2016/pakistan-currently-is-a-competitiveauthoritarian-regime-and-not-a-democratic-one> (Accessed 2017.08.10) 131

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people.135 Pakistan’s constitution itself emphasizes the principles of judicial review and judicial independence. The activist role of the judiciary stems from its attempt to fill the vacuum created by the dysfunction of the executive and legislative branches of government.136

C. Malleability of the doctrines of standing and the political question in American climate change litigation

The third and final finding results from an analysis of the Juliana, Kain and Foster cases read in light of the decisions in Massachusetts, AEP, Comer, Bellon and Kivalina. The concepts of standing and the political question in American jurisprudence are extremely malleable, which seem to be a “kind of Rorschach inkblot allowing each Justice to project her own worldview onto each case”.137 Despite the promising precedent in Massachusetts and the lack of clear decision on it in AEP, there is a judicial reluctance to grant NGOs standing to compel regulatory agencies to act in climate change litigation, as in Bellon, or to attribute liability to oil companies, as in Kivalina.

In the case of the standing test, the strange differentiation of Juliana and Massachusetts compared to Bellon and Kivalina reveals a lack of uniformity in the application of the Lujan test in the United States. This leads to a cynical interpretation of the concept of standing, which seems to be more a proxy for judgments on the merits. Rather than ensuring the separation of powers, standing in the United States enables judges to both advance their own political ideologies or provide a pretext for dismissal of contentious cases without having to hear arguments on the merit.138 This has proven to be the case regardless of the political orientation of judges: conservative judges are more likely to deny standing to Ahmed, supra note 98 at 223; Iram Khalid, “Role of Judiciary in the Evolvement of Democracy in Pakistan” (2012) 19:2 Journal of Political Studies 125 at 148 136 Naveed Ahmed & Syeda Mahpara Safder, “Paradoxes of Judicial Independence in Pakistan: Some Reflections from the US” (2014) 29:2 South Asian Studies 483 at 493 137 Daniel A Farber, “Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine”, online: (Accessed 2017/07/30) Farber 138 Handley, supra note 47 at 110 135

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environmental groups, prisoners and employees whereas liberal judges are more inclined to deny standing to banks and corporations.139 The USSC, having never defined what constitutes injuries in the environmental context, enables each judge to decide what kind of grievance should be considered as cognisable injuries, while the causation aspect is simply a question of fairness in the eye of the judge.140 Indeed, conservative scholars were certain that Massachusetts failed all three prongs, whereas liberals were equally certain it passed the test.141

The vagueness of the political question doctrine endangers the enforcement of individual rights by exempting certain issues from judicial review. 142 While the Baker test is meant to uphold the separation of powers, it does not consider other constitutional principles such as access to justice, fairness and the protection of individual liberties. The confusion surrounding the Baker decision, the lack of reliance on the “prudential strand” by courts post-Baker and the absence of a redefinition of the doctrine by the USSC has led scholars to argue that the application of the doctrine in the current form depends on the political whims of the majority of the judges hearing the case.143

The formalistic nature of the political question doctrine in American law is evident in the approach taken by the litigants in ATL, where they first petition the relevant government agency to recommend to the Legislature’s enactment of stricter GHG emissions limits. This allowed the plaintiffs in Foster, Kain and Juliana to avoid the court’s reluctance to judge state inaction, as was apparent in the refusal to compel the state to legislate in Stivak. Despite judicial reluctance to review agency nonimplementation of a statute, courts should engage in such review, as judicial supervision is often the only viable method to keep the agency faithful to its mandate.144 Courts are not asked to design a policy to implement, but to ensure that an agency’s policies are in line with the statutory mandate and do not affect the rights of individuals.

Administrative inaction occurs at least as often as

Richard J Pierce Jr, “Is standing law or politics” (1998) 77 NCL Rev 1741 at 1775 Farber, supra note 137 141 Ibid 142 Jill Jaffe, “The political question doctrine: an update in response to recent case law” (2011) Ecology law quarterly 1033 at 1042 143 Ibid 144 Lehner, supra note 22 at 656 139 140

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administrative action and judicial review of inaction is necessary to assure the legitimacy of the administrative system. 145

Again, a cynical interpretation of the conflicting case law leads to the conclusion that the political doctrine test allows the courts to avoid engaging in a novel, complex and political sensitive matter like climate change regulation. As Handley notes, the rule of law becomes the rule of politics when politically unaccountable judges can “manipulate such nebulous concepts as injury-in-fact, traceability, and redressability to avoid hearing the merits of a case”.146

II.

The role of climate change litigation with respect to governmental inaction

A. Negative aspects

In the first instance, opponents of climate change litigation argue that it violates the separation of powers and leads to judges questioning and reshaping policydecisions. This was central to the arguments by governmental defendants in all the cases surveyed above on climate change litigation for governmental inaction. The case for limiting judicial involvement has been discussed in Chapter I (section I). In practice, it is related to the perceived inability of courts to deal with complex policy decisions in the face of scientific uncertainty.147 For Bergkamp and Hanekamp, the difficulty with climate change litigation stems from the limited set of facts that is brought before the courts. Since parties are masters of their procedures, there is a likelihood that both sides will pick and choose the scientific evidence they wish to present in their effort to win their case. Courts must then proceed on the facts presented, even though these facts might be biased or incomplete. However, Bergkamp and Hanekamp argue that since a judgment in climate change litigation is likely to affect the interest of third parties not represented, the courts should independently verify all the facts, including the scientific ones. Reviewing a “whole 145

Ibid at 689 Handley, supra note 47 at 110 147 van Zeben, supra note 78 at 344 146

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body of science in relation to a broad area of government policy” would prove to be too onerous for the judiciary, who does not have access to advisory bodies on the relevant social, scientific and financial issues, nor the ability to conduct public consultations.148 In addition, courts may not quickly and regularly adapt their opinions to reflect the latest science or alternative social priorities and a court making the wrong decision and imposing liability for climate change inaction could be counterproductive and costly.149

Another drawback of litigation involves its ad hoc nature. There is the potential for a whole climate movement to be confined to piecemeal improvement or even stagnation due to the specific facts of a case which could result in a bad precedent. A litigious approach does not include clear, long-term goals and does not promote patterns of thinking to better adapt or mitigate climate change. Litigation in such circumstances might be nothing more than a temporary means of redress that only builds resentment.150 Such resentment might manifest in the form of backlash, which has already started in the form of antiregulatory litigation. 151 In antiregulatory litigation, opponents of regulation turn to courts to overturn proactive litigation. 152 Peel and Osofsky’s study on the impacts of antiregulatory litigation in the United States and Australia, to which one could add the jurisprudence of climate litigation generated by the EU Emissions Trading Scheme, shows that climate change litigation’s effect is not always promotive.153

Lucas Bergkamp & Jaap C Hanekamp, “Climate Change Litigation against States: The Perils of Court-made Climate Policies” (2015) 24:5 European Energy and Environmental Law Review 102 at 107 Bergkamp & Hanekamp 149 Ibid; For an account as to why the International Court of Justice should refrain from giving an advisory opinion, see: Lucas Bergkamp, “Adjudicating scientific disputes in climate science: the limits of judicial competence and the risks of taking sides” (2015), online: . 150 Mark Baker-Jones and Emilie Barton, “Why thinking like a lawyer might mean less time litigating and more time adapting”, (n.d) DibbsBarker, available at https://www.nela.org.au/NELA/NELR/Thinking_like_a_lawyer_on_climate_change_Dibbs_Barker.pdf (Accessed 2017/05/01) Baker-Jo nes & Barton 151 Peel & Osofsky, supra note 180 at 283 152 Ibid 153 Ibid at 308; For an account of the case law generated by the EU ETS, see Ghaleigh, supra note 168 at 49-58; Council of Europe, 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 and amending Council Directive 96/61/EC. 148

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In some cases, cooperation may yield better results than litigation. Considering the fact that “most businesses prefer to make investments with certainty about what regulations are going to be in place”, coalitions between NGOs and big companies may result in swift legislative action, as was the case with the US Climate Action Partnership.154 Cooperation with decision-makers can also help the development of sound climate change policies, and legal practitioners have a role in helping decision-makers “think like lawyers”, thereby enabling and promoting the implementation of effective mitigation and adaptation measures.155

B. Positive aspects

Despite the potential drawbacks of litigation, the advantages of litigation far outweigh them. Some of these advantages are discussed here, such as (1) providing an alternative to the ineffective global climate change regime, (2) litigation as an adaptation and mitigation tool, and (3) climate change litigation’s role in shaping social norms.

1. Access to climate justice In the first instance, climate change litigation at the national level provides the accountability lacking at the international level. The absence of a global law-making institution with a jurisdictional reach and legal authority leaves climate action at the mercy of political decisions.156 This is illustrated by the international community’s incomplete participation in the Kyoto Protocol, the even fewer countries which accepted to be bound by its second commitment period and the insufficiency of the Intended Nationally Determined Contributions (INDCs) submitted in the context of the Paris Agreement.157 Because international negotiations on climate change occur within the framework of the United Nations Framework Convention on Climate Gwen Ruta, “Environmental Defense Fund” in Thomas P. Lyon, ed, Good Cop, Bad Cop. Environmental NGOs and their Strategies toward Business (Washington, DC: Earthscan, 2010) 184 at 193 155 Baker-Jones & Barton, supra note 179 at 5 156 Ibid 157 UNFCCC, Synthesis report on the aggregate effect of the intended nationally determined contributions, FCCC/CP/2015/7 (2015). 154

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Changen (UNFCCC)158, a party-driven and highly political process, some elements which would enhance climate justice do not form part of international agreements, or if they do, do not provide any means of holding states accountable for their actions and policies.159 Indeed, the Paris Agreement contains a liability waiver in its accompanying decision.160

Despite the waiver, a state which fails to control harmful activities within its own territory which causes or risks causing foreseeable environmental harm in another state’s remains liable under international law, as the causes of harm are within its jurisdiction and control.161 However, the “super wicked” nature of climate change differentiates it from other forms of transboundary harm affecting a neighbouring state. The multiplicity of states contributing to the problem, the difficulty of showing any direct connection to the victims and the value judgment entailed in deciding whether emitting states which comply with international emissions targets have struck the right balance between their own state’s economic development and the right to life of people in other states, are some of the practical difficulties in international climate change litigation.162

This is further complicated by the terms of the Paris Agreement: despite the fact that it is a treaty under international law, it contains few substantive binding obligations. Instead of establishing binding emissions reductions for developed countries, the Paris Agreement leaves the Parties to decide their commitments through their “nationally determined contributions (NDCs)”.163 For these reasons, the possibility of a state being able, or willing, to sue another state successfully is very slim.

158

United Nations Framework Convention on Climate Change, 1771 UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 IL 849 (1992) [UNFCCC] 159 Kelly Bloom, Julie-Ann Richards & Stephen Leonard, Climate Justice: The international momentum towards climate litigation (Heinrich Boell Foundation, 2016). https://www.boell.de/sites/default/files/report-climate-justice-2016.pdf Bloom et al at 10 160 Decision 1/CP.21 at para 51 161 Trail Smelter Arbitration (US v Canada), (1941) 35 AJIL; Alan Boyle, “Human Rights and the Environment: Where Next?” (2012) 23:3 European Journal of International Law, online: . Boyle 2012 162 Ibid 163 Article 2.2 Paris Agreement; Charlotte Streck, Moritz von Unger, and Paul Keenlyside, 'The Paris Agreement: A new beginning' (2016) 13(1) Journal for European Environmental & Planning Law 3–29 at 22 Streck et al Page 34 of 49

If inter-state climate litigation is not a viable solution to hold states accountable for their contribution to climate change, it will not be sufficient to rely on the compliance mechanism set out in Article 15 of the Paris Agreement, which will most likely only be facilitative in nature.164 While further discussion on the role and features of successful compliance mechanisms is outside the scope of this thesis, it is an important factor in the attribution of climate responsibility.165

In addition to the difficulty of inter-state climate change litigation, the preference of states to use non-adversarial methods and the weak compliance mechanisms, the limited jurisdictional basis of international courts also hinders the chances of success. Since neither the UNFCCC nor the Paris Agreement set out a compulsory dispute settlement mechanism166, only Parties that have accepted the compulsory jurisdiction of the International Court of Justice (Article 36.2 of the ICJ Statute) or are bound by a regional mechanism which mandates compulsory jurisdiction of a court of general competence (such as the Pact of Bogotá or the European Convention for the settlement of disputes) that could be seized by an international court.167 Overall, because of the difficulties of litigating climate change inaction at the international level, individuals have been turning to domestic litigation, which de-escalates the conflict between states while still providing access to justice.

2. Litigation as an adaptation and mitigation tool The second positive aspect of climate change litigation for governmental inaction is rooted in legal mobilisation.168 Accessing courts is often seen as a measure of success, as it enables plaintiffs to benefit from traditional court remedies, but also to Achala Abeysinghe, Caroline Prolo and Hajiful Islam Khan, “Compliance in the 2015 Climate Agreement” (2015) LDC Paper Series, available at https://ldcclimate.files.wordpress.com/2012/05/webldc_compliance.pdf, accessed 08/07/2017 Abeysinghe et al 165 See Jutta Brunnee, Meinhard Doelle, and Lavanya Rajamani (eds), Promoting compliance in an evolving climate regime (Cambridge University Press 2011) 166 See Article 24 of the Paris Agreement, which applies Article 14 of the UNFCCC mutatis mutandis 167 United Nations, Statute of the International Court of Justice, 18 April 1946; American Convention on Pacific Settlement (Pact of Bogotá), Bogotá, 30 April 1948, in force 5 June 1949, OAS Treaty Series Nos. 17 and 61. 168 Navraj Ghaleigh, “‘Six honest serving-men: Climate change litigation as legal mobilization and the utility of typologies” (2010) 1:1 Climate Law Ghaleigh 164

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“publicize a cause, exert pressure on adversaries … and frame arguments in particular ways for tactical ends”.169 In countries that do not have a comprehensive national response to climate change, such as the United States and Australia, courts are a critical forum in which the future of GHG emissions regulation and adaptation efforts concerning climate change are debated.170 Indeed, climate change litigation serves as an adaptation and mitigation tool as it can hold governments accountable for their decisions.171 Litigation can also have a direct regulatory impact, as evidenced by the increased ambition in GHG emissions reductions legislation that was passed because of the decisions in Kain and Foster, and the creation of a climate change commission in Leghari. The decision in Urgenda and the preliminary decision in Juliana also put direct pressure on the state to regulate better, as well as indirect pressure on fossil fuel companies, but also automobile, power and petrochemical corporations to reduce emissions.172

As Ginsburg explains, the reactive and adversarial nature of courts enhances the judiciary’s “ability to draw information that would otherwise be unavailable to the governance system broadly conceived”.173 Climate change litigation for governmental inaction challenges administrative decisions of governments and can become a form of resistance to bad policies.174

3. Litigation’s role in shaping social norms

Climate change litigation, even if unsuccessful, can have positive non-legal impacts and be considered a political victory for activists. Litigation can gather considerable media attention and raise public awareness that climate change poses a threat to their rights and on those of their children. Climate change litigation can foster public

169

Ibid at 35 Brian J Preston, “The influence of climate change litigation on governments and the private sector” (2011) 2:4 Climate Law 485 at 485 171 Brian J Preston, “The Contribution of the Courts in Tackling Climate Change” (2016) 28:1 Journal of Environmental Law 11 at 13 Preston; Lord Carnwath, “Judges and the Common Laws of the Environment--At Home and Abroad” (2014) 26:2 Journal of Environmental Law 177. 172 Osofsky 2010, supra note 16 at 8 173 Tom Ginsburg, “Administrative Law and the Judicial Control of Agents in Authoritarian Regimes” at 72 Ginsburg in Tom Ginsburg and Tamir Moustafa (eds). Rule by Law: The Politics of Courts in Authoritarian Regimes, (Cambridge: Cambridge University Press, 2008) 174 Ibid at 70 170

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debate on the level of ambition (or lack thereof) of states in regulating climate change, as was case in Kain or in Urgenda.175 This increased media attention can create internal pressures on the government to initiate policy change.176 In a situation where the regulatory environment has not caught up with the problem of climate change, adjudication provides a mechanism for dialogue and awareness and “creates diagonal interactions through which different levels and branches of regulators interact and grapple with what is needed, [....] bring[s] attention to regulatory options and debates, and push policymakers to address more nuances of the problem in the process”.177 The socio-legal impacts of climate change litigation should not be discarded. The experience of tobacco litigation in the United States shows that “whistle-blowers, key administrative officials, and the mass media indirectly and directly [may change] politics as well”.178 In the tobacco litigation, going to courts had the added benefits of raising the awareness about the dangers of smoking and create a wider social impact than other forms of law-making.179 Similarly, Massachusetts has been hailed as changing the nature of public debate from one in which climate change itself is disputed to one where climate change scepticism is a political choice rather than an objective dispute.180 The courts proceeded cautiously at first in the litigation against tobacco industries in the 1990s, but over time these cases gained traction. It is possible that the current climate change litigation cases are also “paving the way” by familiarising the courts with the possibility of imposing liability for climate change inaction. Perhaps once the effects of dangerous climate change impacts citizens to a greater extent, what was once deemed a non-justiciable political question will be routinely adjudicated.181

175

Preston, supra note 171 at 14 Ginsburg, supra note 173 at 69 177 Hari M. Osofsky, “Conclusion: Adjudicating Climate Change Across Scales” in Willliam C. G. Burns & Hari M. Osofsky, eds, Adjudicating Climate Change, (Cambridge: Cambridge University Press, 2009) 178 Michael McCann, William Haltom & Shauna Fisher, “Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for Health Risks in the United States” (2013) 38:2 Law & Social Inquiry 288 at 291 179 Bloom et al, supra note 159 at 47 180 Jacqueline Peel & Hari M. Osofsky. Climate Change Litigation: Regulatory Pathways to Cleaner Energy, (Cambridge University Press, 2015) at 235 Peel & Osofsky 181 Wilkins, supra note 65 at 552 176

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CONCLUSION This thesis evaluates the role of courts in adjudicating climate change litigation against governmental inaction, as well as the factors that influence a court finding itself competent to hear such cases. Instead of engaging in a comprehensive mapping exercise of all litigious cases over governments’ inaction in the climate change field, five cases from three jurisdictions that have yielded at least a preliminary decision on the justiciability issue were selected as examples. The cases were assessed using the codifying method of comparative law to understand the role of courts in climate change litigation. In climate change litigation against government inaction, the court’s reluctance to adjudicate stems from the fear of exceeding its scope of authority. This is especially true for orders requesting governments to enact better regulations for climate change adaptation and mitigation. The difficulty of the strong form of judicial review of governmental policy is the fine balance needed between preventing unelected judges from overturning the will of democratically elected politicians, while still respecting the role of the judiciary in upholding citizens’ rights. In practice, this has given rise to doctrines like standing and justiciability to help judges decide whether they have the competence to adjudicate.

A review of the older American jurisprudence on standing and the political question doctrine in Massachusetts, AEP and Kivalina, compared to the new ATL cases of Kain, Foster and Juliana leads to the conclusion that there is too much malleability and confusion surrounding these doctrines. Their vagueness leads judges to make policy decisions on whether they should adjudicate or not. Discussions about the “political nature” of climate change litigation often reflects the judges’ own political ideologies and biases. Even a perfunctory study of the American jurisprudence on climate change litigation demonstrates that the political question doctrine’s current formulation allows unaccountable courts to decline hearing politically sensitive matters, by manipulating nebulous concepts of justiciability and standing. Rather than ensuring the separation of powers, it transforms the rule of law into the rule of politics. Page 38 of 49

Nevertheless, as society becomes more conscious of the perverse effect of climate change, there is greater acceptance from judges to adjudicate climate change litigation. The analogy can be drawn to the tobacco litigation movement in the 1990s, where courts were more inclined to hear cases when societal attitude towards smoking changed. Recent cases of climate change litigation are preparing judges to deal with the possibility of imposing liability on states for their failure to mitigate or to adapt. This is linked to the socio-legal impact of litigation, which can direct media attention and raise awareness about the necessity of addressing the situation.

The literature indicating greater environmental performance in countries with constitutionally-enshrined and enforceable human rights to a healthy/clean environment was mirrored in climate change litigation. There is an increased likelihood of a court finding that the case is justiciable when a constitutional environmental right is breached. In Urgenda, the duty of care of the government to protect the environment enabled the court to adjudicate the claim and provide the reduction order. Urgenda contrasted with the American case of Kivalina, where the court held that there was neither standing nor justiciability, partly because of a lack of duty between the defendant oil companies and the plaintiff villagers. Having such a right to a healthy environment creates an avenue for courts to look directly at the issue, without needing a statutory mandate as in Leghari or the plaintiffs having to go first through a formal petition to the legislature, as in the ATL cases. The first conclusion is that a constitutional right to a healthy environment positively correlates with the likelihood that the judiciary will find itself competent to adjudicate.

A second element that increases the chances of adjudication on the merits is the activist role of courts in authoritarian (or competitively authoritarian) regimes. In such regimes, the principle of checks and balances favours a stronger and more active judiciary that can fill the institutional vacuum left by the other branches. The nature of courts in competitive authoritarian regimes suggests that they are less concerned with maintaining the same level of separation of powers than in democratic states, and rather more focused on maintaining judicial independence and limiting legislative

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and executive abuse. It is in the backdrop of such a regime that the Pakistani court decided in Leghari that it had the competence to not only adjudicate, but also to order the creation of a Climate Change Commission and to nominate its members.

Thus, we found that there is an increased likelihood of a court holding that climate change litigation for governmental inaction is justiciable in jurisdictions where there is constitutional right to a healthy environment, as well as activist courts in authoritarian regimes. Further research could be conducted on the likelihood of success for climate change litigation in countries that are economically-dependent on GHGintensive industries, compared to countries that are vulnerable to climate change, as well as the effects of an elected judiciary.

Opponents of climate change adjudication argue that courts do not have the scientific and technical competence to decide complex policy questions related to GHG emissions standards. The reactive and ad hoc nature of litigation could lead to less flexibility to adapt decisions to the latest science or to changing social priorities. Judicial decision-making does not allow the space for long-term goals that are considered in policy-making and ground-breaking climate decisions can also result in antiregulatory litigation. However, there are important benefits to litigation that outweigh any potential drawbacks. Indeed, the practical impossibility of holding states accountable at the international level leaves domestic courts as the only recourse to enforce climate justice. Within an international framework that is statedriven, climate change litigation in national courts provides the possibility for individuals with substantially less power to be on equal footing with the state.

Some commentators argue that despite the amount of climate change litigation in the United States, there has been no decline in emissions level, which would suggest the limited effect of litigation in climate change mitigation. Such a correlation is too complex to understand as cause-and-effect; there are myriads of factors that influence the amount of GHG emissions a country produces (a change in President, for example) and at least two states have enacted stricter policies because of litigation, as in Kain and Foster. The impacts of litigation cannot be measured only by emissions reductions. The social impact of legal mobilisation brings increased media Page 40 of 49

attention and puts direct pressure on states to regulate better, thereby also driving the industry to reduce GHG emissions. This horizontal effect of litigation pushes policymakers to address more nuances of the problem, which attenuates the problems about the reactive and ad hoc nature of litigation.

While it is true that courts do not have the technical knowledge and capacity of policy-makers, it does not mean that judges may not decide questions that have technical ramifications or political consequences. Provided there are legal questions, it is precisely their duty to do so. It is important to remember that issues of justiciability only seek to determine whether adjudication would violate the separation of powers and does not speak to the potential of success on the merits. 182 Climate change litigation for governmental inaction presents a legally disruptive challenge for courts and tribunals because of its complexity and political implications.183 The role of courts in adjudicating such claims is neither to engage in policy-making, nor to abdicate their powers completely. Courts routinely engage in judicial review of administrative inaction and should not descend into judicial meekness, but rather enforce the rights and liberties of those who might not have other ways to vindicate their rights.

Even though climate change litigation is legally disruptive and marked by political controversy, judges, within the bounds of the legitimate possibilities at their disposal, must decide on legal questions, no matter their political implications. Continued government inaction in the climate change field will have disastrous consequences and only a global effort can prevent it. In the present situation where those who have contributed the least to climate change are the ones facing its most dire consequences, courts must be mindful that litigation is sometimes the only effective means for them to achieve climate justice.

182

Latourette, supra note 71 Elizabeth Fisher, Eloise Scotford & Emily Barritt, “The Legally Disruptive Nature of Climate Change” (2017) 80:2 The Modern Law Review 173. 183

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BIBLIOGRAPHY TREATIES AND LEGISLATION United Nations, Statute of the International Court of Justice, 18 April 1946 American Convention on Pacific Settlement (Pact of Bogotá), Bogotá, 30 April 1948, in force 5 June 1949, OAS Treaty Series Nos. 17 and 61. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 United Nations Framework Convention on Climate Change, 1771 UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 IL 849 (1992) Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998) (entered into force Feb. 15, 2005) United Nations Economic Commission for Europe, “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 447 (in force 30 October 2001) Council of Europe, 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 and amending Council Directive 96/61/EC. United Nations Framework Convention on Climate Change. (2015a). Paris Agreement – Decision 1/CP.21 – Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2015 Addendum Part two: Action taken by the Conference of the Parties at its twenty-first session. Bonn. MONOGRAPHS Barak, Aharon, The Judge in a Democracy, (Princeton University Press, 2008) Brunnee, Jutta, Meinhard Doelle, and Lavanya Rajamani (eds). Promoting compliance in an evolving climate regime (Cambridge University Press 2011) Burns, Willliam C. G. & Hari M. Osofsky (eds). Adjudicating Climate Change, (Cambridge: Cambridge University Press, 2009) Dryzek, John S, Norgaard Richard & David Schlosberg (eds). The Oxford Handbook of Climate Change and Society (OUP Oxford, 2011). Ginsburg, Tom and Tamir Moustafa (eds). Rule by Law: The Politics of Courts in Authoritarian Regimes, (Cambridge: Cambridge University Press, 2008) Grote, Rainer & Tilmann J Röder, eds, Constitutionalism in Islamic countries: between upheaval and continuity (Oxford; New York: Oxford University Press, 2012) Hertogh, Marc and Simon Halliday (eds). Judicial Review and Bureaucratic Impact, (Cambridge: Cambridge University Press, 2004) Lyon, Thomas P. Good Cop, Bad Cop: Environmental NGOs and their Strategies toward Business (Washington, DC: Earthscan, 2010)

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Fisher, Elizabeth. “Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA.” Law & Policy 35, no. 3 (July 1, 2013): 236–60. doi:10.1111/lapo.12006. Fisher, Elizabeth, Eloise Scotford, and Emily Barritt. “The Legally Disruptive Nature of Climate Change.” The Modern Law Review 80, no. 2 (2017): 173–201. Ghaleigh, Navraj. “‘Six Honest Serving-Men’: Climate Change Litigation as Legal Mobilization and the Utility of Typologies.” Climate Law 1, no. 1 (2010). Graaf, K. J. de, and J. H. Jans. “The Urgenda Decision: Netherlands Liable for Role in Causing Dangerous Global Climate Change.” Journal of Environmental Law 27, no. 3 (November 2015): 517–27. doi:10.1093/jel/eqv030. Handley, Matt. “Why Crocodiles, Elephants, and American Citizens Should Prefer Foreign Courts: A Comparative Analysis of Standing to Sue.” Rev. Litig. 21 (2002): 97. Hoecke, Mark van. “Methodology of Comparative Legal Research.” Boom Juridische Uitgevers, 2015. https://www.bjutijdschriften.nl/tijdschrift/lawandmethod/2015/12/RENM-D-1400001.pdf. Jaffe, Jill. “The Political Question Doctrine: An Update in Response to Recent Case Law.” Ecology Law Quarterly, 2011, 1033–1065. Khalid, Iram. “Role of Judiciary in the Evolvement of Democracy in Pakistan.” Journal of Political Studies 19, no. 2 (2012): 125. LaTourette, Shawn M. “Global Climate Change: A Political Question.” Rutgers LJ 40 (2008): 219. Lazarus, Richard J. “Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future.” Cornell Law Review 94 (2009 2008): 1153. Lee, Justice Thomas R. “Judicial Activism, Restraint, & the Rule of Law.” Utah Bar Journal 26, no. 6 (December 11, 2013): 12–19. Lehner, Peter H.A. “Judicial Review of Administrative Inaction.” Columbia Law Review 83 (1983): 627–89. Lever, Annabelle. “Democracy and Judicial Review: Are They Really Incompatible?” Perspectives on Politics 7, no. 04 (December 2009): 805. doi:10.1017/S1537592709991812. Levitsky, Steven, and Lucan Way. “The Rise of Competitive Authoritarianism.” Journal of Democracy 13, no. 2 (2002): 51–65. Lin, Jolene. “The First Successful Climate Negligence Case: A Comment on Urgenda Foundation v. The State of the Netherlands (Ministry of Infrastructure and the Environment).” Climate Law 5, no. 1 (2015): 65–81. Mank, Bradford C. “No Article III Standing for Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit’s Decision in Washington Environmental Council V. Bellon.” American University Law Review; Washington 63, no. 5 (2014): 1525–85.

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