CRINmail 55:
Climate change and children's right to a clean environment
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Introduction
Climate change is one of the most serious problems facing humanity. Its impact on the lives of people around the world has already been recognised as a human rights issue. But, as the effects of global warming will intensify for each subsequent generation, CRIN believes children’s rights should be front and centre of the debate, not neglected on the periphery.
Earlier this month we discussed the far-reaching implications of climate change on the full range of children’s rights. In this special edition Children in Court CRINmail we are answering the following questions: What are States doing to prevent or minimise rights violations resulting from climate change? Are fossil fuel companies being held accountable for contributing to global warming? Is all this enough to protect the human rights of the children of today and future generations and, if not, who is pressing for more action?
Following intense negotiations at the Paris climate conference this month, 195 States and the European Union committed to an international agreement aiming to decelerate the rate of global warming by reducing greenhouse gas emissions. But while the agreement is a step in the right direction, it is also clear that it has significant shortcomings. Notably, although States will be obliged to monitor and report on their efforts to cut emissions, there are no legally binding emissions targets. Experts have already warned that even if the Paris agreement is fully observed, the rate of global warming is projected to reach 2.7°C above pre-industrial levels, which is higher than the conference’s aim of 2°C and well above the 1.5°C level advocated by some Pacific nations.
Despite the limitations of internationally agreed non-binding instruments, there are other ways to press governments and companies to act now to halt the effects of global warming. One such method is legal advocacy. Over the past year, courts in various countries around the globe have considered challenges related to climate change, including cases brought by and on behalf of children asking the courts to consider issues of intergenerational justice. This CRINmail presents a selection of such news and cases, legal actions against fossil fuel companies, and more. At the end of the CRINmail we present our latest strategic litigation case study on a suit brought by eight children against the US state of Washington.
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Latest news and cases
Legal action against governments
Dutch court slams government over unambitious goals
A seminal decision on the issue of climate change was delivered by The Hague District Court in the Netherlands in mid-2015. In response to a challenge filed by NGO Urgenda on behalf of 900 plaintiffs, including children, the court ruled that the Dutch government’s target of reducing greenhouse gas emissions by just 14-17 per cent compared to 1990 levels by 2020 was unlawful and ordered the new target to be at least 25 per cent. The government challenged the admissibility of the claim saying that Urgenda cannot represent future generations, but the Court held that the organisation has sufficient standing and allowed the case. “Before this judgement, the only legal obligations on [S]tates were those they agreed among themselves in international treaties,” said Dennis van Berkel, legal counsel for Urgenda. “This is the first a time a court has determined that states have an independent legal obligation towards their citizens.” The government is appealing the decision, however, it has already inspired similar actions in other States with more expected to follow.
US children testing the ‘public trust’ doctrine
In the United States, NGO Our Children’s Trust (OCT) has been coordinating efforts to litigate climate change matters on behalf of children. They have raised numerous legal challenges in state and federal courts relying on the legal doctrine of public trust, under which the State is responsible for safeguarding natural resources, such as the atmosphere and waterways, in the public interest.
Last month a Washington court judgment in a case brought by eight children with the assistance of OCT recognised children’s right to a stable climate. While Judge Hollis Hill felt unable to force the state’s Department of Ecology to base their carbon emission reduction targets on the most up-to-date science and exclude non-scientific considerations, the judgment is regarded as a victory as it explicitly states that children have a right to a healthy environment. Most significantly the judge held that the public trust doctrine, mandating that the government maintain clean waterways and fisheries and other natural resources for future generations, was intrinsically linked to controlling emissions which potentially affect those resources. See CRIN’s strategic litigation case study at the end of this CRINmail for more details.
This case, which forms part of a wider legal strategy targeting every US state, is just the first step in OCT’s mission to mobilise support to reduce global reliance on fossil fuels. Judgments have been given in Alaska, Texas, Arizona, Kansas, Montana, Pennsylvania, New Mexico which go some way to forcing change, while cases remain pending against Oregon, Pennsylvania, Massachusetts, Colorado and North Carolina, as well as a suit against the federal government.
...but Obama's rules on climate change come under scrutiny
Any efforts to impose stricter regulations on harmful emissions in the US are, however, likely to be met with opposition. In October a group of 24 states brought a challenge to legal provisions designed to cut carbon emissions by power plants as soon as the latter become law. Individual lawsuits have since been filed by three more states. The provisions in question are part of the federal Environmental Protection Agency’s (EPA) Clean Power Plan and mandate a 32 per cent reduction in power plant emissions compared to the 2005 level by 2030 - the first ever national standard in the United States to reduce carbon pollution. All suits have been consolidated into one case pending before the U.S. Court of Appeals for the District of Columbia Circuit.
Earlier in the year the Supreme Court of the United States delivered a decision ordering the EPA to reconsider regulations for the reduction of emissions of mercury and other toxic air pollutants. Mercury is said to be particularly dangerous for young children and for nursing women who may pass the toxin to their newborn babies. The majority held that the agency was wrong to ignore the costs of compliance which would have to be borne by the industry as a relevant consideration and ‘unfairly’ emphasised the public health benefit of cleaner air.
Pakistani court orders the establishment of climate council
In September the Lahore High Court ordered Pakistan, where more than 2.8 million children under five have been affected by climate change-induced flooding in recent years, to establish a climate council because the State is not doing enough to tackle the problem. The ruling comes in relation to a case initiated in the public interest by a man from a community of small-scale farmers who have been reduced to poverty after their crops were destroyed on numerous occasions as a result of unpredictable weather shifts. He argued that by failing to observe the objectives set in its 2012 National Climate Change Policy, the government has violated the fundamental rights to life and dignity. The new body will consist of experts from the government, as well as civil society, and be headed by a lawyer specialising in environmental matters. The decision by the court’s Green Bench - a section constituted specifically to hear environmental law cases - states: “[f]or Pakistan, climate change is no longer a distant threat - we are already feeling and experiencing its impacts across the country and the region. The country experienced devastating floods during the last three years. These changes come with far reaching consequences and real economic costs.”
Following suit in Belgium, New Zealand, Ireland, Norway and Australia
Challenging States’ action (or inaction) on global warming is important not only because the harmful effects of climate change are being felt today, but also because fairness to future generations requires us to leave a healthy and stable environment behind. Apart from a 1993 decision in the Philippines, intergenerational justice (the idea that all generations’ interests should be accorded equal importance) has not been sufficiently recognised by courts around the world. Nonetheless, as an increasing number of cases concerning climate change are being filed, an opportunity to secure such recognition may soon present itself. In the meantime, below is a selection of news stories about other legal challenges brought by citizens against their governments which may have the potential to set legal precedent and impact the law in their country.
In Belgium, Klimaatzaak (Climate Business), an association of 11 concerned citizens, launched proceedings in April against the regional governments and federal government in the first instance court of Brussels over the governments’ failure to meet their greenhouse gas reduction goals. The group alleges that this failure violates various laws, such as international climate conventions, the European Convention on Human Rights, and the Belgian Constitution. They are demanding a reduction in carbon dioxide emissions of 87.5 per cent based on 1990 levels, with a deadline of 2050, and have asked for a fine of 10,000 euros a day to be levied if the governments fail to do so. Klimaatzaak has been joined by 9,000 members of the public who have added their names to the list of claimants.
In a first of its kind action in New Zealand, a 24-year-old university student is seeking judicial review of the government’s plan to combat climate change. The claim, filed in Wellington High Court, argues that the government’s greenhouse emission reduction target of 11 per cent below 1990 levels by 2030 is unreasonable and irrational. Two renowned scientists have pledged to provide expert evidence that the targets are inadequate. According to Greenwatch’s 2015 Climate Change Performance Index New Zealand’s climate policy ranks in the bottom five among 58 countries with highest CO2 emissions globally.
A challenge against the Irish State, inspired by the cases in the Netherlands and Belgium, is currently being crowd-funded online. It is reported that similar proceedings may be underway in Norway. Finally, an environmental justice organisation in Australia is considering strategies for a similar legal action.
Asylum bid of climate refugee rejected by New Zealand
A two-year long legal process claiming asylum in New Zealand for Ioana Teitiota and his family due to the impact of climate change on their native Kiribati has ended unsuccessfully. Their landmark appeal to become the first ever ‘climate refugees’ was rejected by the Supreme Court which affirmed previous decisions by the High Court and Court of Appeal. The 1951 Convention Relating to the Status of Refugees provides the definition of a refugee, for whom protection and asylum is to be granted. However, Article 1(A)(2) of the Convention, providing the criteria for refugee status, does not account for persons displaced due to environmental causes. The Court acknowledged that the ‘climate refugees’ should be considered within the remit of the Convention, although it held that, as things stand, Teitiota and his family were not at risk of “serious harm” upon their return, adding: “Our decision in this case should not be taken as ruling out that possibility in an appropriate case.” Despite the best efforts of a local Kiribati community in Auckland, Ioana Teitiota was deported in September 2015, with New Zealand’s immigration department confirming that his wife and two children will also have to leave at a future unspecified date.
In July 2014, however, the New Zealand government did grant permanent residency to a family from Tuvalu due to climate change having adverse effects on the country’s drinking water supply, polluting it and thereby preventing them from returning home. The Immigration and Protection Tribunal found "exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh” for the family to return to Tuvalu. Although this was the first such residency granted on humanitarian grounds due to environmental factors, the Tribunal explicitly declined to address whether climate change provided a basis for granting resident visas. Instead, the Tribunal based its finding of “exceptional circumstances” on other factors, including the presence of the husband’s extended family in New Zealand, the family’s integration into the New Zealand community, and the best interests of the children.
Legal action against businesses
This month the Philippines Human Rights Commission agreed to investigate a complaint alleging that international fossil fuel companies are violating the rights of citizens by driving climate change. The petition, filed in September on behalf of 20 individuals and 13 organisations, claims that 50 fossil fuel companies - the “Carbon Majors”, including Chevron, ExxonMobil, BP and Royal Dutch Shell - have knowingly contributed to the root causes of anthropogenic climate change. The petitioners claim that this violates the rights of Filipinos to life, health, food, water, sanitation and housing, especially those particularly likely to be affected by climate change, such as children. The petition notes that “[a]ccess to justice and effective remedy is of particular importance to the youth petitioners.” The Philippines is one of the countries most severely impacted by extreme weather driven by climate change. In 2013 Typhoon Haiyan killed more than 6,000 people and caused an estimated $13 billion in damage.
The Philippines petition follows an announcement by community leaders in Vanuatu, Kiribati, Tuvalu, Fiji, the Solomon Islands, and the Philippines of their intention to bring legal action against fossil fuel companies for their role in contributing to climate change. Under the People’s Declaration for Climate Justice dated June 2015, the six Pacific countries, which claim to be the “most acutely vulnerable to the impacts of climate change”, commit to “bring a case that would investigate the human rights implications of climate change and hold the big carbon polluters accountable to appropriate international bodies or processes.” In March Cyclone Pam hit Vanuatu, damaging 90 per cent of housing in Port Vila and wiping out crops and livestock, an event which Vanuatu’s President Baldwin Lonsdale attributed to climate change.
A Peruvian farmer and mountain guide is suing German energy company RWE in a German court over its contribution to climate change. Saul Luciano Lliuya is asking the company to help pay for engineering projects that will protect his family and community from potential floods caused by a melting glacier lake in the Andes mountain range. Lliuya is demanding that RWE pay 20,000 euros, or 0.47 per cent of the estimated cost of such engineering projects, which corresponds with RWE’s 0.47 per cent share of all global warming emissions produced from 1751 to 2010. Germanwatch, a German NGO supporting Lliuya’s case, said that this is the first time a private individual affected by climate change has sued a company for damages. Glacial melt in the Andes is one of the global risks most clearly attributable to climate change. Last year the Peruvian government stated that climate change has shrunk the country’s glaciers by 40 per cent over the past four decades.
In the United States, the New York Attorney General has opened an investigation into oil company ExxonMobil following several journalistic investigations which revealed that the company knew about the threat its activities pose with regard to climate change decades ago but chose not to act. Historic corporate memos show Exxon scientists were aware of the dangers and worked on solving the problem of greenhouse gas emissions until the 80’s when the company began funding climate change deniers instead. The Attorney General has obtained a subpoena for memos related to Exxon’s climate change research going back four decades on the basis of a state law which makes it a criminal offence for companies to knowingly commit "fraud, deception, concealment” of its activities from the public that might affect shareholder value.
Access to environmental justice
In the United Kingdom, government proposals to increase the cost of litigation on environmental matters may have a deterrent effect on petitioners, head of a leading UK environmental law firm has warned. Currently the costs which a party bringing a case may be liable to pay to the other side are capped at £5,000 for individuals and £10,000 for non-governmental organisations (NGOs), while the defendants (usually the government) may pay up to £35,000. It is proposed that the cap for individuals and NGO petitioners is doubled, while the cap for defendants is reduced to £25,000. A spokesperson for the government claimed the proposals are aimed at discouraging meritless claims but James Thornton, chief executive of ClientEarth, cautions that the change could have a chilling effect on citizens’ ability to bring cases to court.
In China, as of the beginning of 2015, a new law allowing public interest litigation on environmental matters may be used to bring challenges related to issues of climate change. The first successful challenge was brought by an NGO in Fujian over pollution caused by an illegal mining expansion. In that case the court ordered the company to pay damages and to restore destroyed vegetation.
Finally, it is reported that Nepal’s new constitution, adopted in September, includes a right to a clean environment, which may be used by the courts to address the effects of climate change.
Legal resources
The Sabin Center for Climate Change Law at Columbia Law School has compiled a database of relevant laws and policies in more than 100 countries. In February 2015 the Centre published a white paper on ‘Climate change in the courts: an assessment of non-US climate litigation’. A selection of case law summaries related to the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is available on the UNECE website.
The Environmental Justice Atlas is a database of 1658 cases of environmental disputes in ten categories: Nuclear, Mineral Ores and Building Extractions, Waste Management, Biomass and Land Conflicts, Fossil Fuels and Climate Justice/Energy, Water Management, Infrastructure and Built Environment, Tourism Recreation, Biodiversity Conservation Conflicts, and Industrial and Utilities Conflicts.
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Case study
Zoe and Stella Foster, et al. v. Washington Department of Ecology: Combatting climate change with the public trust doctrine
A group of children brought a petition to Washington’s Department of Ecology, asking them to adopt a rule to limit carbon emissions in their state. After being denied and then ignored they appealed against the Department’s rulemaking process claiming that, to be effective, it would have to be in line with up-to-date climate science.
CRIN’s collection of case studies illustrates how strategic litigation works in practice by asking those involved about their experiences. By sharing these stories we hope to encourage advocates around the world to consider strategic litigation as a means to challenge children’s rights violations.
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Changes to CRINmail
For the past 20 years, CRIN has been bringing you the latest news and developments in children’s rights from around the world through nine different CRINmails. From breaking news to in-depth analysis, CRINmail is the only e-newsletter informing advocates and organisations on all children’s rights.
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Happy reading!
The CRIN team
Last Word:
“[The youths’] very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of emission of [greenhouse gases] before doing so becomes first too costly and then too late.” - Judge Hollis R. Hill in Zoe & Stella Foster v. Washington Department of Ecology.
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