Judges arrived for Jifa’s recent training on environmental law and climate change law, a little confused. Most knew about environmental law and some had even dealt with cases that raised issues of environmental law. But what was climate change law? Was it something different? Another branch of environmental law, perhaps? Might it actually even be the same thing? And what could the role of the judiciary be in relation to climate change? – Surely it was something that international organisations dealt with, rather than domestic courts?
University of Cape Town’s Professor Sandy Paterson soon put everyone right. After three days spent working on environmental law, certificates were issued and that course ended. Then he moved to what he explained was a different sphere and a different course. This was a separate, two day, short course deep dive, into climate change law.
The challenge before every judge who deals with climate change issues has been spelled out by Judge Brian Preston, chief judge of the land and environment court of New South Wales, Australia. Judge Preston, who has quickly become one of the world’s most significant voices in climate change law, has this to say:
‘Climate change is a persistent, pervasive and pernicious problem. Each branch of government, including the judiciary, has a role to play in tackling climate change.
‘Courts can make a meaningful contribution by: providing equal access to justice; determining and not deferring climate change claims; upholding the rule of law; taking and forcing the executive, legislature and private sector to take climate change seriously; explaining and upholding the fundamental values underpinning the law; promoting environmental values and putting a price on them; assisting progressive and principles development.’
International climate change regime
Paterson took the group through the obvious and worsening effects of climate change and the horrifying consequences if there isn’t action to change the world’s direction. The judges were introduced to global responses to climate change, including the key international agreements and conventions that deal with the problem. He explained how one set of agreements led to another, and the undertakings by the world community that each generated, thus creating an international climate change regime.
These are the standards against which government and corporate decisions and actions must be measured by the courts. He pointed out that not every case litigated before the courts will be brought by parties seeking to advance climate measures: there will also be litigation that challenges the introduction of measures designed to ameliorate climate change, and that aims to undermine a state’s efforts. For example, a coal mining company might attack laws made by government that limits emissions.
Judges who thought they were unlikely ever to hear a case involving climate change were given a jolt with the statistics that show how rapidly the number of such cases has grown across the world. In 1994, for instance, there was just one case involving climate change in the world’s courts. At the time of writing, that had jumped to 2 089, with 91 of these cases being heard outside of the USA last year alone, and the number of cases seeming to increase almost every week.
As Paterson listed the kinds of cases that would fall under the heading of climate change litigation, participants also realised that a number of cases that could realistically come before them, could be categorised under the same heading.
Already there are a number of African cases listed in the world data bases of climate change litigation. However, the judges agreed that there were more matters involving climate change issues than had yet been captured in these data bases.
These cases, not yet captured on world data bases, might include disputes sometimes heard by African domestic courts about whether proper consultation has taken place before new projects, potentially affecting a country’s obligations under international climate change agreements, are given the go-ahead.
But there are other matters that courts could find brought before them. They could include cases brought against the government, testing whether the state was enforcing the climate standards it had agreed to under various protocols, for example, or they could be brought against corporations for alleged ‘climate washing’, for instance. This is the term used to describe a technique adopted by companies to make false claims – that their product or the process they use is more climate-friendly than it is in fact.
Paterson also suggested that judges writing decisions on matters that could properly be classified as climate change issues, should use in their judgments some key words, ‘climate change’ for example, so that international data bases that keep a record of related litigation could pick up cases and add them to the growing tally.
He also discussed strategic climate litigation, where the claimants aren’t concentrated on the behaviour of an individual, but rather aim at bringing about some broader societal shift, like changing the behaviour of government or industry actors.
Extreme weather events
The key trends he identified for participants included the fact that corporate climate change litigation was on the increase and was spreading outside of the energy sector (where it was previously heaviest). Litigation was increasingly an instrument used to enforce or improve climate commitments made by government.
There was also an increasing trend to challenge policies and plans, rather than only targeting individual decisions because this is seen by the applicants as having broader strategic impact. Another trend was to use human rights law and remedies to hold governments and the corporate sector to account.
One future direction for litigation would result from the increasing number of extreme weather events. Court action related to extreme weather could be brought even before it occurs, on the basis that certain action needed to be taken to help ameliorate or even prevent weather disasters.
The extreme weather event litigation that experts anticipate would be the result of an increase in events such as these and an improved scientific understanding of them. This in turn would allow governments and companies to improve their planning to prevent damage associated with such events.
Typical pre-disaster cases could include litigants seeking interdicts that would compel governments to introduce precautionary adaptation measures, such as securing river banks or improving coastal defences. Post-disaster cases might include claims for damage caused by an extreme weather event, with an increased likelihood of success in court where, thanks to improved scientific understanding, litigants could base a claim on foreseeability.
But while litigation at the domestic level will continue and grow, this won’t see a comparable drop in cases brought to international adjudication bodies.
Litigants could continue to choose an international forum because they anticipate an unsympathetic – or ineffective – domestic court as they try to hold government to account.
Litigation at an international forum might be part of a broader strategy that seeks to place international pressure on domestic authorities to make broad structural reform. An applicant might also want to build international precedent that would then be available as persuade source in later domestic litigation.
As to directions further down the road, there could well be an increase in legal action against company directors, officers and trustees testing how they manage climate risks and linking this litigation to the fiduciary duties the company officials owe to the company.
Courts could also expect to see an increase in cases brought against those who destroy biodiversity, degrade ecosystems and undertake deforestation. This would be based on the essential link between biodiversity and climate mitigation and adaptation.