Redefining Climate Leadership: Exploring the Courts' Role in Environmental Governance
Introduction:
Traditionally, it has always been the role of the UK’s government to design and implement climate policy objectives to help the UK achieve its net zero target by 2050. Importantly, this is done against a backdrop of Sustainable Development Goal (SDG) 7 of the United Nations, which commits the UK to ‘increasing the share of renewable energy’ in the global energy mix, primarily through developing and deploying clean, sustainable energy.
However, recent cases such as Friends of the Earth in the UK and Urgenda in the Netherlands suggest that the landscape of global climate governance is shifting. It is increasingly becoming the role of the courts to hold governments accountable for the insufficiency of their climate legislation and accelerate the transition to net zero.
The Friends of the Earth case:
One of the most groundbreaking cases in the field of climate litigation occurred last year in 2022 with the case of Friends of the Earth v. Secretary of State for Business Energy and Industrial Strategy. Here, a climate activist community successfully took the UK government to Court, claiming that its recent 2021 ‘Net Zero Strategy’ was unlawful as it was insufficient to meet the UK’s climate obligations. For the first time in history, the UK’s Supreme Court ruled in favour of the climate activist group.
The UK’s 2008 Climate Change Act set out, among other objectives, incremental targets (or ‘carbon budgets’) that must be achieved in order for the UK to be net-zero by 2050. However, in the Friends of the Earth case, the claimants argued that the UK’s Net Zero Strategy was incompatible with the UK’s sixth carbon budget, which is ‘the volume of greenhouse gases the UK can emit during the period 2033-37’. As a result of this incompatibility, the Court ruled the UK’s Net Zero Strategy to be unlawful, requiring the UK to reformulate its approach to achieving carbon neutrality by 2050.
“This decision is a breakthrough moment in the fight against climate delay and inaction. It forces the Government to put in place climate plans that will actually address the crisis”.
The Urgenda case:
Outside of the UK, a similar narrative appears to be unfolding. This is most evident In the 2019 case of Urgenda Foundation v. State of the Netherlands, where a nonprofit foundation claimed that the Dutch climate policy was insufficient to meet its climate obligations. Interestingly, one of the grounds on which they attempted to do this was by demonstrating that inadequate climate policy regulation breached their rights under the European Convention of Human Rights (ECHR).
The claimants argued that the Dutch government’s commitment to an emission reduction of only 17% by 2020 was insufficient compared to the 25% emission reduction required by their obligations to the UN. This lowered ambition and failure to adhere to the 25% target fell afoul of the Dutch commitment to the ‘UN goal of keeping global temperature increases within two degrees Celsius of pre-industrial conditions’.
The Dutch Court eventually ruled in favour of the claimants, holding that the Netherlands’ response to climate change was insufficient and that ‘ECHR imposed a positive obligation to take appropriate measures to prevent to climate change’.
Dr. David R. Boyd, UN Special Rapporteur on human rights and the environment, stated:
“This is the most important climate change court decision in the world so far, confirming that human rights are jeopardised by the climate emergency and that wealthy nations are legally obligated to achieve rapid and substantial emission reductions”.
What does this mean?
The outcomes in both the Friends of the Earth and Urgenda cases speak to a global shift in climate regulation. Whilst the primary responsibility for designing and implementing climate legislation will always be primarily the legislature’s role, it is impossible to deny that Courts are playing a more active role than ever within the field of climate governance.
Courts are becoming far more willing to challenge governments over the adequacy of their climate legislation, especially in light of the worsening effects of climate change. The ability to rely on human rights is also becoming an increasingly effective tool in a claimant’s arsenal when demonstrating to a court that a state’s emissions reduction target is insufficient. Subsequently, it can be said with relative certainty that courts will occupy an increasingly important role in accelerating the transition to net zero, both within the UK and on a global scale, as the effects of climate change worsen.
By Joseph Trim