Climate Change, Environmentalism and the Law

Introduction

Global emissions of greenhouse gases in 2023 are up 1.1% on 2022 and are higher than in any previous year in human history. Malaga, Spain, is gearing up for Christmas at 30 degrees Celsius. Whatever view one takes of the agreement in COP 28 (which has just concluded in Dubai), there is much to do to minimise the effects of the catastrophes facing our planet. What is the role of the law in facing these challenges?

The following text is a summary of the Domus Dinner Lecture delivered at Lincoln’s Inn by Alex Goodman KC on 15^th November 2023 on the theme of Climate Change, Environmentalism and the Law. It considers some key trends and cases in climate litigation globally, trends in UK climate litigation, and the role of legislation in tackling climate change.

Litigation cannot hope to do much more than enforce the law and the law primarily protects the interests of the powerful. However, it can occasionally be turned to defend the natural environment from mankind’s most destructive potential. Over the past four years, climate change has become far more prominent a theme of environmental litigation in the UK and globally. A combination of campaigners’ despair; a gradual emergence of more legislation and policy on climate change and tensions within state practices over climate change, has fuelled a rise in climate-related litigation.

Litigation on climate change across the globe

A recent report by Setzer and Higham for the LSE shows that globally, the cumulative number of climate change-related cases has more than doubled since 2015 (they count 800 cases between 1986 and 2014 and 1,200 in the period 2015-2022). Around one-quarter of those 2,000 cases were filed between 2020 and 2022 alone. The impact of this litigation has been considerable: of eight framework cases challenging governments’ overall responses to climate change issued in the highest court, six have had favourable outcomes for climate action. Equally, in the US, where private litigation against companies has a more favourable regime than in the UK, there have been an increasing number of cases against so-called carbon majors. The report displays the crucial role of NGOs: 70% of all cases were filed by NGOs. It also serves to emphasise the importance of affordability and why it is seen as a key objective of the Aarhus Convention.

A taxonomy of climate litigation globally

The three main kinds of climate litigation can be broken down into:

• Cases seeking to enforce the law against governments
• Cases against corporations
• Regressive cases (litigation seeking to impede efforts to stop climate change)

• Cases seeking to enforce the law against governments

A notable example of successful litigation, is the Dutch Supreme Court ‘Urgenda’ case (The networks of human rights and climate change: The State of the Netherlands v Stichting Urgenda, Supreme Court of the Netherlands, 20 December 2019 (19/00135) Env l. Rev 2020 22(3), 227-234). In that case the litigants established that the threat from rising sea levels in lowland areas implicated their ECHR Article 2 and 8 rights.

That case has in turn inspired other cases relying on ECHR rights including: a declaration as to insufficiency of the target of a 55% reduction by 2030 in Germany: https://climate-laws.org/geographies/germany/litigation_cases/neubauer-et-al-v-germany and six claims from Portugal, followed by 33 other cases (with notable efforts from Global Action Network):

There is also a growing wave of constitutional environmental cases. For example, I have been advising the National Association of Professional Environmentalists in their intervention on a claim brought by the NGO Greenwatch against the failure of the Ugandan government to halt the loss of its forest and woodland cover. The claim invokes constitutional rights to a healthy environment and the public trust doctrine.

The Leghari case from Lahore’s High Court in Pakistan was a complaint from a farmer that the failure of the government to institute an on-the-ground response to climate change infringed his fundamental rights. The judgment of Chief Justice Mansoor Ali Shah directed the institution of a Standing Committee on Climate Change to act as a link between the Court and the Executive and secure the implementation of a climate change policy and framework. (Leghari v Federation of Pakistan (2015) W.P. No. 25501/201).

A series of cases against the government of Guyana may prove to be (in terms of greenhouse gas emissions) a part of one of the most significant pieces of litigation globally. One of the cases (on which I have advised) seeks to compel the government to use its powers against Exxon in relation to methane flaring in newly drilled oil fields off its coast.

• Cases against Corporations

Framework cases against corporations tend to challenge company-wide policies and strategies through the lens of human rights issues. For example, the Milieudefensie et al. v. Royal Dutch Shell plc decision drew on human rights and environmental due diligence standards in a claim to order Royal Dutch Shell PLC to reduce its CO2 emissions by 45% by 2030.

There are also ‘climate washing’ cases, which hold corporations to account for misinformation about the climate related impact of their industries. Other cases against corporations include cases regarding corporate responsibility. Clientearth’s unsuccessful case against the board directors of Shell is one example.

• Regressive Cases:

Not all Climate Change litigation is progressive. There is recent growth in corporations seeking injunctions against protesters from groups like Just Stop Oil, Extinction Rebellion and Insulate Britain. Examples include Valero Energy Ltd v persons Unknown [2022] EWHC 91; National Highways Ltd v Persons Unknown [2023] EWCA Civ 182; Shell UK Ltd v Persons Unknown [2023] EWHC 1229, National Highways Ltd v Persons Unknown [2023] EWHC 1073 (KB) and Transport for London v Persons Unknown [2023] EWHC 1038 (KC) (Morris J). These powerful interests have seen the jurisprudence on protests evolve rapidly over the past few years. A recent consolidation being in the decision of the Supreme Court in Wolverhampton City Council v London Gyspies and Travellers and Others [2023] UKSC 47. In the UK The Metropolitan Police made 630 arrests of peaceful protesters in the past month alone, deploying new powers under section 7 of the Public Order Act 2023 and many environmental protesters are serving or facing prison sentences as a result of public order offences.

The clamp-down on environmental protesters has brought into focus questions as to the extent to which defendants to criminal charges can rely on their political motivations to encourage jurors to acquit them. Defendant climate protesters in France have been successful in raising so called “climate necessity” defences for civil disobedience in the cases of ADB GROUP (Paris Airports) v Climate activists in which climate activists protesting the expansion of Charles De Gaulle Airport were acquitted.

In the UK some judges have attempted to forestall what the legal establishment sometimes calls “perverse verdicts” by stifling defendant protesters from explaining their motives. In one such case, two members of Insulate Britain were sentenced by the judge to seven weeks in prison for contempt of court in explaining their motives, despite not being convicted by the jury.

Another strand of corporate fightback against protesters may be the use of SLAPPs. Trans Mountain Pipeline ULC v. Misavair, is an example of a ‘SLAPP’ case (strategic lawsuits against public participation) in Canada in which a pipeline corporation brought a claim against environmental protesters. No doubt there are many other cases, particularly of injunctions, which (by their nature) are not widely known.

Climate Litigation in the UK

The English courts recognise the science of climate change. The Divisional Court held in Spurrier [2020] PTSR 240 at §559 that “The increase in global temperature has resulted in (amongst other things) sea level change; a decline in glaciers, the Antarctic ice sheet and Arctic Sea ice; alterations to various ecosystems; and in some areas a threat to food and water supplies. It is potentially catastrophic.”.

Most cases on climate change in the UK proceed as challenges to government decisions on individual schemes or policies. For example, the case of R (Vince, Monbiot, Good Law Project) v SSBEIS [2020] in which I acted compelled the government to revisit the energy National Policy Statements on Energy. At the time, the statements involved a presumption in favour of all energy development: including fossil fuels. The revised National Policy Statements (EN1 and EN 3) now (since November 2023) establish a presumption in favour of low carbon infrastructure developments over almost all other planning considerations by virtue of a presumption of a “critical need” outweighing harm to other planning considerations such as heritage assets and landscape value.

Another effective piece of litigation was R. (on the application of Stephenson) v Secretary of State for Housing, Communities and Local Government [2019] EWHC 519 in which a concerned citizen successfully challenging government policies affecting climate change (in that case concerned with fracking).

The Court of Appeal in Plan B Earth [2020] PTSR 1446 held that the Paris Agreement was a component of “government policy” and that the Secretary of State was accordingly obliged by section 5(8) of the Planning Act 2008 to take account of it in designating the Airports National Policy Statement. The government did not appeal, but Heathrow Airports Ltd did (reported as R (Friends of the Earth) v Transport Secretary [2021] PTSR 190). The Supreme Court gave a judgment of the court delivered jointly by Lord Hodge and Lord Sales in which they reversed the Court of Appeal and held at [122], that the UK’s obligations under the Paris Agreement were given effect in domestic law, in that the existing carbon target under s.1 of the CCA 2008 and the carbon budgets under s.4 of that Act already meet and go beyond the UK’s obligations under the Paris Agreement. The duties under the CCA 2008 clearly were taken into account when the Secretary of State decided to issue the ANPS. The reference to “government policy” in section 5(8) of the Planning Act 2008 as referring to a published policy cleared by a government department and did not include the ministerial statements in question, nor did it include the UK’s ratification of the Paris Agreement which did not (as the time of designating the Airports NPS) give rise to legal rights or obligations in domestic law. It also held that the Secretary of State had taken account of the Paris Agreement.

However, despite not succeeding, the case has so far halted the expansion of Heathrow and the implications that will have for meeting the UK’s carbon budgets. Sometimes – perhaps often- in environmental litigation it is not necessary to “win” the case to win the wider battle.

Not all climate change cases are – or need to be – about large scale developments or policies to have impact and indeed not all climate change impacts are irrelevant to planning. I am fond of R (McLennan) v Medway [2020] Env. L.R. 5 in which a next-door neighbour objected to an extension on grounds it would overshadow his solar panels, compromising his contribution to renewable energy and mitigating climate change. The planning officers advised that was not a material consideration because it was a purely private interest. Lane J quashed the planning permission holding that mitigation of climate change was a material planning consideration pursuant to the local plan; the NRPF and section 19(1A) of the Planning and Compulsory Purchase Act 2004 (which requires the local plan as a whole to contribute to the mitigation of climate change) and the failure to have regard to it was in fact irrational in the Wednesbury sense: the local planning authority was not entitled to reject the mitigation of climate change as immaterial (para 36).

In R (Friends of the Earth) v Secretary of State [2023] 1 WLR 225 Holgate J in the High Court granted a mandatory order requiring the Secretary of State to report to Parliament pursuant to section 14 of the Climate Change Act 2008 after it was found that his “Net Zero Strategy” pursuant to section 13 was unlawful. A second round of that litigation is due to be heard in February 2024.

The decision of the Supreme Court on the appeal from R (Finch) v Surrey County Council [2022] Env LR 27 is awaited. The main issue was whether in granting planning permission for “EIA Development” involving the expansion of an oil well the local planning authority had to consider the impacts of the development by virtue of the impact the oil would have on climate change when burned in cars etc, rather than simply from emissions from the development itself. The Courts have so far said “no”.

At the time of writing Rights: Community: Action’s challenge to the application of an extraordinarily out-of-date government policy on energy efficiency so as to actually prevent the development of a zero-carbon garden village awaits judgment from Lieven J. No doubt the government will have to update its policy in short order.

Private law litigation is rarer in the UK than for example in America. This is partly because of different social structures and partly because of different litigation models. For example, public law environmental claims enjoy the protection of the Aarhus costs regime, capping a claimant’s liability costs. Part 46 of the Civil Procedure Rules provides that NGOs should be able to bring claims for judicial review whereby their exposure to costs to the other side is limited to £10,000. The quid pro quo is that they can only recover £35,000. However, claims against private bodies are exposed to significant costs risks. That said, UK cases against carbon majors are proliferating, with 38 cases counted by Setzer and Higham in 2021. The ongoing claims against car manufacturers who are alleged to have misstated their emissions are now numbering (collectively) a mind-blowing 700,000 claimants.

Progress for the UK: Legislation over Litigation

My view is that while litigation plays an important role, in the UK, the need for new legislation is a greater priority.

Current legislation has already served a useful purpose. The Climate Change Act 2008 heralded the first major commitment to tackling climate change and can be credited with some success in that regard, albeit perhaps on the “low-hanging fruit”. The Paris Agreement signed at COP 21 in 2015, did, by comparison to COP 28, achieve a significant point of international consensus in committing each signatory to achieve the aim of limiting global warming to 1.5 degrees above the 1990 baseline. In the UK this led to the 2019 amendment of section 1 of the UK Climate Change Act 2008 which now requires a 100% reduction in greenhouse gas emissions by 2050 against the 1990 baseline. Five-yearly “carbon budgets” pursuant to section 4 the 2008 Act must now reflect this change. It is a significant one because it means ambitions on reductions in greenhouse gas emissions which were previously set for 2050 have in essence been brought forward to 2035.

However, merely setting a target does not set out the route to hitting that target. The work of the Climate Change Committee should be acknowledged in that respect. But there are some straightforward legislative interventions that might nudge the UK further along towards achieving its ambitions.

There have been a number of notable recent battles by the environmental sector over continued legislative with some success. For example the government’s attempts to introduce regressive measures downgrading the protection of sensitive ecosystems were recently defeated in the House of Lords thanks to the efforts of Peers for the Planet, Rights: Community: Action, and other NGOs. But the UK needs more than rearguard actions if it is to meet its legislative net zero targets: it requires new positive commitments to tackling climate change. A legislative right to a healthy environment would be a start, reflecting the UN Human Rights Council’s resolution recognising that right. It would also bring the UK’s constitutional order into line with those of many other democracies around the world. There also needs to be a universal duty (on the private and public sector) to act on and consider climate change in relation to any major decision, just as employers and public bodies must consider equalities issues. Fifteen years on from the Climate Change Act 2008, we need to shift our focus to setting requirements sector by sector in specific ways to reduce greenhouse gas emissions. We must also continue to progressively set new energy and planning policies to ensure that our electricity generation moves away from fossil fuels almost entirely within five to ten years.

How might this happen? It will not be through international treaties. My view is that it is humble community groups who are the primary environmental defenders. They can make a difference, and by raising the profile of an issue, they make it difficult for political decisions that are destructive of the environment to be taken. It is at a local level from which leaders and tangible legislative change to protect our planet will emerge.

This article was written by Alex Goodman KC.