August 31, 2021 Francis Menton @ Manhattan Contrarian
It’s easy to look at “climate change” litigation in the U.S. and conclude that a good percentage of our environmental bureaucrats and judges who get involved in these things are crazy. Thus many courts around the country (mostly state courts) have allowed lawsuits seeking damages against oil companies over greenhouse gas emissions from their products to proceed at least beyond the preliminary stages. And the EPA, early in the Obama administration (2009) issued what is called the “Endangerment Finding,” declaring CO2 and other GHGs to be a “danger to public health and welfare” — a ridiculous determination that the Trump administration nevertheless did not attempt to undo, and which substantially ties the government’s hands in contesting wacky climate-related cases. Not that the Biden Administration can be counted on to contest these cases at all, no matter how preposterous.
But we do have in the U.S. this thing called the doctrine of “non-justiciability.” That is the doctrine under which our courts steer clear of cases that ask courts to rule broadly on matters of public policy that are more legitimately the province of the legislatures. At the federal level, the non-justiciability doctrine arises out of the separation of powers embodied in the Constitution’s structure, as well as by the language of Article 3 Section 2, which describes the jurisdiction of the federal courts only in terms of “Cases” and “Controversies.”
The doctrine has been around for a long time, and is well-established in many precedents. As discussed in my most recent post, it was the non-justiciability doctrine that sank the Juliana case, which sought to get a court to order the end of the use of fossil fuels in the U.S. on the basis of the Due Process clause of the Fifth Amendment and the Equal Protection clause of the Fourteenth Amendment. Even two of three Obama-appointed judges on the Ninth Circuit panel agreed with that rationale. Had the case reached the Supreme Court, the 6-3 “conservative” majority, in my judgment, would be highly likely to apply the “non-justiciable” rationale to privately-brought litigation that seeks a fundamental restructuring of the economy through court order. (A different issue is whether the Supreme Court, in the presence of the Endangerment Finding, would try to overrule a restructuring of the economy via EPA or other bureaucratic regulation that claimed some statutory basis, however flimsy.)
But let’s consider Europe. I don’t claim any special expertise on their law, particularly environmental law, or on their court system. But from what I can find out about “climate litigation” over there, there are many judges who don’t seem to feel themselves bound by prudential strictures of a “non-justiciability” doctrine or anything comparable. Plenty of judges, including many at the highest level of the court system, have bought into the anthropogenic climate change religion, and are just itching to get the chance to exercise their powers to “save the planet.”
Sunday’s post covered on case out of the Netherlands (Urgente) where an environmental group asked the courts to order the government to reduce GHG emissions well below the trajectory implied by existing government policy; and the courts went right ahead and ordered that. The rationales given included everything from Article 21 of the Dutch Constitution (“It shall be the concern of the authorities to keep the country habitable and to protect and improve the environment.”) to “principles under the European Convention on Human Rights,” to the “fairness principle” (is that a legal doctrine over there?) to the “precautionary principle” (same), and several more of a similar level of generality.
As far as I can determine, this case made it through three levels of the court system of the Netherlands — trial court, court of appeals, and Supreme Court — without a single judge dissenting or even questioning whether it was a good idea for the courts to be ordering the government to coerce the people to reduce their GHG emissions by some 25% within one year. I cannot seem to find how many individual judges weighed in on this at the three levels, but maybe somebody more familiar with the courts of the Netherlands can let us know.
And as I look around today, it turns out that the courts of the Netherlands are not alone in Europe in issuing orders of this sort. This type of litigation is everywhere, and the courts in multiple countries have been only too happy to issue sweeping orders to get the people into line. Herewith a few examples:
Germany. ClimateCaseChart.com (CCC) lists seven of these environmental policy cases in Germany. One is Neubauer v. Germany, brought in February 2020 in the German Constitutional Court by yet another group of “youth” plaintiffs. The plaintiffs asked the court to strike down the German Bundesklimaschutzgesetz (KSG, or Federal Climate Protection Law) for violating the plaintiffs’ “human rights” by not setting sufficiently stringent requirements for GHG emissions reductions. What “human rights” were alleged to be violated? From the summary at CCC: “The[] claims principally arose out of the principle of human dignity allegedly enshrined in Article 1 of the Basic Law; Article 2 of the Basic Law, which protects the right to life and physical integrity; and Article 20a of the Basic Law, which protects the natural foundations of life in responsibility for future generations.” And on that basis the courts can usurp the fundamental function of the legislature? Yes. “On April 29, 2021, the Federal Constitutional Court struck down the parts of the KSG as incompatible with fundamental rights for failing to set sufficient provisions for emissions cuts beyond 2030. The . . . Court stated that Article 20a "is a justiciable legal norm that is intended to bind the political process in favour of ecological concerns, also with a view to the future generations that are particularly affected." Here is a link to an official English translation of the court’s opinion.
Belgium. A case called VZW Klimaatzaak v. Kingdom of Belgium, brought in 2014 in the Brussels Court of First Instance by some 58,000 Belgian citizens, bears great resemblance to the Urgente case in the Netherlands; but it has proceeded at a slower pace. Only over the course of 2019 and 2020 did the parties make paper submissions of their claims and defenses (in the nature of a trial). The court heard oral arguments over the period March 16-26, 2021. According to the summary at CCC, “the plaintiffs [sought an] injunction directing the government to reduce emissions 42 to 48% in 2025 and at least 55 to 65% in 2030.” The court issued its initial ruling on June 17, 2021. It “held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change.” However, the court “declined to set specific reduction targets on separation of powers grounds.” That’s at least a little refreshing. Expect the plaintiffs to appeal and to try to get further injunctive relief from the appeals courts. The court’s judgment (unofficial English translation) is here.
Ireland. The Irish analog to the Dutch, German and Belgian cases is called Friends of the Irish Environment v. Ireland. The case was brought in 2017 in the High Court of Ireland (trial-level court) by an environmental group, and alleged the usual suite of violations of human rights under the national constitution (here of Ireland) as well as the European Convention on Human Rights; but in this case there was also an allegation of violation of the Irish statute called the Climate Action and Low Carbon Development Act of 2015 (“Act”)(that was essentially the enabling statute of the Paris Climate Agreement of that year). In this case the High Court in 2019 ruled fully for the government. However, the plaintiff FIE then appealed, and the Supreme Court of Ireland accepted a direct appeal (skipping the normal step of going through a court of appeals). The Supreme Court to its credit has some substantial discussion of issues of separation of powers and justiciability. However, it then found a basis in the Act to rule against the government, finding that the government’s plans to comply with the Act were insufficiently specific as to how CO2 emissions targets would be achieved by 2050. As to rights under the Irish constitution, the court found that FIE (as a corporate rather than human entity) lacked standing to assert them, but went on to state that it was “not ruling out the possibility that constitutional rights and obligations may well be engaged in the environmental field in an appropriate case." The opinion of the Irish Supreme Court is here.
In other jurisdictions, cases have been filed, but are too young to have generated significant court decisions. For example, in the UK a case called Plan B Earth v. Prime Minister — brought by an environmental group and several young people and raising the usual issues of violations of “human rights” — was only commenced on May 1, 2021. No decision is yet reported.
Have plaintiffs actually lost any of these cases in Europe? I find one in Switzerland: Union of Swiss Senior Women for Climate v. Swiss Federal Council. The case was brought in 2016, and alleged that failure to reduce GHG emissions rapidly enough violated the usual collection of general constitutional and human “rights” like the right to life and the “sustainability principle.” The case made its way through a series of Swiss bodies, including the Department of Environment, Transport, Energy, and Communications and the Federal Administrative Court (all of which dismissed the matter) before getting to the Swiss Supreme Court in May 2020. The Supreme Court affirmed the dismissal, concluding “that the plaintiffs' asserted rights had not been affected with sufficient intensity, and that the remedy they seek must be achieve through political rather than legal means.” Here is an unofficial English translation of the Supreme Court’s decision. Finally, some judges with a proper sense of their role in a political system!
You will not be surprised to learn that the plaintiffs in November 2020 then filed a petition for review of the matter by the European Court of Human Rights. That court has now given the case what they call “priority status,” and directed the Swiss government to submit a response by July 16, 2021. I don’t find that document yet at the CCC site.
Which brings us back to the Duarte case, discussed previously in Sunday’s post, and brought by a group of Portuguese young people as a matter of supposed original jurisdiction in the European Court of Human Rights. Which way is the ECtHR going to go on this issue? There doesn’t seem to be much doubt. In May 2021, Lucas Bergkamp and Katinka Brouwer (of CLINTEL) put together a Report on the subject for something called the ECR Group of the European Parliament. The Report is titled “Climate Politics Disguised as Human Rights at "The European Climate Change Court.” Although the case is new, and has not yet generated a decision on the merits, Bergkamp and Brouwer make a number of telling points:
Going through the national judicial process in some country is normally a pre-requisite to filing a case in the ECtHR. However, the Duarte case completely skipped that step, and then “was even given special preferential treatment due to it being deemed a matter of ‘urgency.’”
The ECtHR, on its own initiative, added a claim to the claims asserted by the Duarte plaintiffs: “[T]he ECtHR has, on its own initiative, extended the complaint brought by the under-age complainants to include ‘torture.’ According to the Court, pursuing an ‘inadequate climate policy’ can apparently lend itself to being equated with torture or inhumane treatment.”
“[T]he ECtHR has rejected an extensively substantiated request for intervention from concerned MEPs without providing reasons for this decision. The same fate befell a group with expertise in constitutional law, as well as an organisation that is critical of climate policy and its scientific basis. However, interventions were allowed by organisations that are clearly sympathetic to the complainants in this case..”
And best of all are the extra-judicial statements of "judges” involved in the case, including statements about the “undeniable existence of a climate emergency” that requires urgent action, and the desirability of making the ECtHR a “European Court of Climate Change.”
On the last point, here is a speech made by a guy named Robert Spano, given October 5, 2020. Spano — who is from Iceland of all places — is the President of the ECtHR. The title of the speech was “Should the European Court of Human Rights become Europe’s environmental and climate change court?” I’ll just give you this brief excerpt from the conclusion:
No one can legitimately call into question that we are facing a dire emergency that requires concerted action by all of humanity. For its part, the European Court of Human Rights will play its role within the boundaries of its competences as a court of law forever mindful that Convention guarantees must be effective and real, not illusory.
I guess we can all see where this one is going. So, next time you find yourself thinking that our courts have gone off the cliff here in the U.S., just keep in mind how much worse it could be.
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