Last month a court at The Hague ordered the Dutch government to cut its emissions by at least 25% compared to 1990 levels by 2020, the first ruling of its kind anywhere in the world. The victory was the result of a class action lawsuit brought by an NGO called the Urgenda Foundation (short for "Urgent Agenda"), which charged the Dutch government with "hazardous state negligence" in the face of climate change. Along with the rest of the EU, the Netherlands is taking a promise to cut 40% against 1990 by 2030 to the Paris climate talks in December, but they are off track, looking to achieve only a 17% cut by 2020. The court extracted a confession from the government's lawyers that more could be done, and therefore ruled that not doing more was negligent.
The case has excited activists around the world. This week Marjan Minnesma, Urgenda's co-founder and director, was in Australia, advising groups looking to emulate her success. “It’s the kind of action we’d love to run and we’re investigating”, environmental lawyer Sean Ryan told the Guardian. Australia is of course headed by the government of Tony Abbott, an aggressive climate change denier. In the face of such apathy, courts may be the best option. The speculative Australian attempt is one of five cases found by RTCC.org that might benefit from the Urgenda example, including one almost identical in its goal and reasoning brought (and recently won) by eight teenagers in Washington State.
Historically, courts seem to have backed away from climate change, preferring to leave it up to legislators and diplomats. In 2008, for example, the tiny Alaskan village of Kivalina sued several major oil corporations, including ExxonMobil, BP and Shell, for putting it under threat of rising sea levels and erosion. It's handful of citizens wanted compensation to move the entire community to a different location. All courts up to the U.S. Supreme Court dismissed the case as an issue for the executive and legislative branches. This refusal to play a role may be about to change. Ceri Warnock analyzing the Urgenda decision for the Journal of Environmental Law, believes that the case and a handful like it may indicate that courts are moving, in the face of an extreme danger such as climate change, to close a constitutional gap between the duty of governments to protect their citizens and their means of doing so. Climate change makes the unthinkable -- that courts might be called upon to "re-balance" the constitution -- thinkable. Such an internal conflict was on display as far back as 2007's landmark Massachusetts vs Environmental Protection Agency, where the justices of the Supreme Court clashed over the threat posed by climate change and the causal link with emissions. Declaring that emissions caused climate change and climate change was a threat to the plaintiffs, the majority ordered the EPA to reconsider its refusal to treat carbon dioxide and other greenhouse emissions as pollutants.
With the nations of the world lining up to promise vague or inadequate emissions cuts, and with no mechanism yet in place to enforce them, is it time to call in the lawyers? Do courts have a duty to push governments to act on the threat of climate change, or is this better (and perhaps more legitimately) left to governments? Let us know in the comments!