In the Earthlife decisionrendered in South Africa, a Court has recently ruled that the behavior of the South African government was irrational, unreasonable, and wrong in point of law. It was the opinion of the Court that the Government had to assess climate change risks before permitting the construction of a coal power plant. While the relevant law does not require the evaluation of climate change risks, the Court derived such an obligation from the South African Constitution, which enshrines a fundamental right to a healthy and safe environment for present and future generations.
One should bear in mind that none of these cases are final, meaning that they can all be reversed by higher courts. Yet, these four cases are examples of the trend the Arctic case is finding itself in. They all have three points in common. First, they all feature the most important law of the land, the Constitution. Second, they refer to international obligations, especially sustainable development and equity toward future generations. Third, the Constitution, the international obligations of the country and further national laws are instrumental for holding the government accountable. The Arctic case fulfils all points, and makes use of the precautionary principle as a specification of the principle of sustainable development.
When it comes to evaluating the global trend, it appears quite clear that the environment is not considered a domain reserved to the executive branch anymore. Rather, it seems that individuals and NGOs are increasingly resorting to courts in order to prompt/challenge executive action. Such a phenomenon is occurring in countries with very different legal traditions, as well as governmental and economic stance.
Do we need these lawsuits?
The Paris Agreement has given way to an unprecedented consensus on bold policies in the climate field, on the part of both developed and developing countries. Yet, it appears that the supervising bodies of the Paris Agreement will never be able to act as the watchdogs of governments. Moreover, the contributions that each country has pledged within the framework of the Paris Agreement already appear insufficient (see here, p.8) to prevent scenarios of drastic climate change effects: extreme weather events, flooding, ocean acidification, ice melting etc. All factors that, among other effects, disrupt local and regional economies by making uncertain our access to resources and markets.
At a time when climate science is reliable, this trend of cases may help attain at least two goals. First, a public discussion in climate change matters that democratic societies need to engage with. Democracy can be understood as “government by discussion”, an idea that Enlightenment philosopher John Stuart Mill did much to advance. Second, this new trend of cases can foster participation. Citizens have a stake in the ecological resources of their own country, and in the global public goods of the planet, such as a stable climate and healthy air.
Furthermore, citizens entrust their own governments to attain more than a fine balance between such competing interests as the industry interests, economic development and the protection of the environment. In democratic societies—and all the more in the welfare state model—states have a duty to guarantee public health, safety, and welfare, including the protection of the environment and wildlife resources. The participation of citizens to public life through courts may prompt a better coherence between development goals and sustainability.
This trend of cases, even if they ultimately turn unsuccessful, can be an opportunity for national governments to fulfil their obligation to make the protection of the environment effective, without undermining the potential of (green) growth. Such was the goal already foreshadowed by Former Norway’s Prime Minister Gro Harlem Brundtland and the Commission she led in the Eighties. Courts with a long judicial review tradition, such as Norwegian courts, would play quite a natural role in this democratic process.
So now, what’s next?
Further climate cases are bringing to trial not only governments, but also companies. Such cases are initiated by either counties and cities affected by climate change, or shareholdersasking for more transparency, especially on the financial risks posed by climate change. Notwithstanding the disadvantages of this fragmented process, there are too many cases in too many countries to ignore the worldwide trend. Is it a necessary turn? It is definitely one we need to cope with, through public discussion and in court.
The Author wishes to thank Eleanor Smith and Jørn Øyrehagen Sunde for translating the text from English into Norwegian. The Author also wishes to thank Magne Strandberg and Jørn Øyrehagen Sunde for their comments and support.
