Litigation – The Climate Litigation

One has to be a little bit doubtful and worried, indeed, that after 20 years of just a lot of talking. We are only going to see more greenhouse gas rhetoric from our politicians and not as much action as we need. So, allowing citizens to go to their own domestic courts is a method of getting action. The case of Urgenda Foundation, which was a citizens group in Holland versus the Netherlands government, was based on the premise that the government owed a duty to its citizens to protect them from harm.

The Decision will be as Follows

The court is ordering the State, in response to Uganda’s claim, insofar as it is representing itself, to reduce the collective volume of the annual Dutch greenhouse gas emissions, or have them reduced, in such a way that, by the end of 2020, this volume will be reduced by at least 25%, compared to 1990 levels.

It was the first time anywhere in the world that a court ordered a government to reduce its national carbon emissions. The argument was that under Dutch tort law, which is the law of wrongs, the concept is that I cannot do something to you that is legally wrong, and, if I do, you can sue me in a civil court and either get damages, or you can try to get a court order to stop future conduct of that unlawful nature from occurring.

So, the advantage of domestic litigation, which is what I am calling litigation, within Holland or litigation in Canada against our own governments is to bring the case before a court that has the authority to actually order governments to act, whereas, at an international law level, there is very little, if any, real authority for anybody to order anybody to do anything.

The issue of the climate change policy presents policymakers with a difficult choice. In this light, I believe the convention we have before us today is an accomplishment a significant one but also only a minimum first step.

The imperative, to most of the world community, was clear: we need to take action now. Apparently all of this, unfortunately, was lost on President Bush. As we are all now all too well aware, the Bush administration was, throughout these negotiations, the single largest obstacle to progress. In the end, our intransigence meant that the final agreement is completely devoid of any legally binding commitments to action.

The world’s nations know it is a problem and had committed 20 years ago to doing something about it when they signed the United Nations Framework Convention on Climate Change in 1992. The reality is that over the last 20-some odd years emissions have only increased, not decreased. So, despite the acknowledgment of the need to act on this, the world’s nations have not done so.

Even the Paris Agreement, while it has great objectives in terms of trying to keep the world’s temperature rise to 2 degrees or, even less, to 1.5 degrees, there is nothing in the Paris Agreement that specifically provides a roadmap to ensure that that will happen. So, unfortunately, we may face the same situation now that was happening even before the Urgenda case and before Paris and the only way we are going to get emission reductions is by citizens taking their own governments to court and saying, “Government, you owe us a duty to take steps”.

This is not the ideal way. It would be better if the world’s nations agreed on something effective and actually worked at it and actually worked at it in a timely way. But one has to be a little bit doubtful and worried, indeed, that after 20 years of just a lot of talking. We are only going to see more greenhouse gas rhetoric from our politicians and not as much action as we need.

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