Arguments Used to Sue Governments for Insufficient Response

While some countries are taking action to reduce greenhouse gas emissions, few countries are doing so at the rate that science demands. The courts can be a way to both force countries to set ambitious emissions reduction goals and to hold them accountable if they fail to meet those goals.

This is part of a series on arguments that can be used in climate litigation. For more articles in this series, see the arguments series.

For another great resource on this topic, check out the Action 4 Justice Climate Litigation Guide

Failure to Meet International Commitments
Nearly every country on earth has signed the Paris Agreement which commits countries to reduce emissions to limit global temperature rise to 1.5°C. Many climate litigation cases use the Paris Agreement and the Nationally Determined Contributions set by its signatories as a baseline by which to hold governments accountable.
 * Cases can be brought against governments that set insufficient targets to limit warming to 1.5°C (Urgenda, Greenpeace v. Spain, Bushfire Survivors case (Australia), Lho'imggin case (Canada))
 * Cases can also be brought against governments that fail to undertake action to meet their targets. (''Khan v. Pakistan, Lho'imggin case (Canada), Future Generations (Colombia))

Resources: UNEP Emissions Gap Report, Climate March, and Climate Action Tracker

Violation of National or Subnational Law
Most countries have passed a national or subnational law or regulation related to climate change. Although many of these laws fall well short of what is needed to meet the goals of the Paris Agreement, numerous climate litigation cases have been brought alleging violations of domestic laws and regulations. In fact, “Statutory causes of action are, by far, the most frequently cited bases for climate litigation”

Cases: Thomson v. Minister for Climate Change Issues, Leghari v. Pakistan, Farooq v. Pakistan, Bushfire Survivors case (Australia), Kain v. Massachusetts, Friends of the Irish Environment v. Ireland, and Khan v. Pakistan

Resources: Climate Change Laws of the World - Grantham Research Institute

Violation of Constitutional/Human Rights
Recent years have seen an increase in the number and success of actions that assert that insufficient action to mitigate climate change violates plaintiffs’ international and constitutional rights to life, health, food, water, liberty, family life, and more. Human rights claims have been asserted under international human rights agreements such as the United Nations Convention on the Rights of the Child and the European Convention on Human Rights, national constitutions, and common law principles such as the Public Trust Doctrine.

Right to a Healthy Environment
The right to a clean and healthy environment has increasingly become recognized as an independent human right by national constitutions and laws. It is now in the constitutions of over 100 countries.

Cases: Marangopoulos v. Greece, In re Court on its own motion v. State of Himachal Pradesh, Khan v. Pakistan, Álvarez et al v. Peru, ENVironnement JEUnesse v. Canada, Future Generations (Colombia)

Right to Life
Climate change clearly poses a threat to human life due to the higher incidence of mortality associated with extreme weather events, increased heat, drought, disease, etc. According to the World Health Organization (WHO),climate change is expected to cause approximately 250,000 additional deaths per year between 2030 and 2050 due to increases in malnutrition, malaria, dengue, diarrhea, and heat stress alone.

Cases:
 * Urgenda Foundation v. State of the Netherlands
 * Leghari v. Pakistan
 * Farooq v. Pakistan
 * Youth for Climate Justice v. Austria, et al.
 * Notre Affaire à Tous v. France
 * ENVironnement JEUnesse v. Canada
 * Petition of Torres Strait Islanders
 * Kim Yujin et al. v. South Korea
 * Swiss Senior Women case
 * Lho'imggin v. Canada
 * Friends of the Irish Environment v. Ireland
 * Sacchi et al. v. Argentina et al.
 * Forced Displacement of Indigenous People case (United States)

Right to Health
Climate change can impact health through increases in the incidence of heat-related respiratory and cardiovascular diseases caused by extreme weather events and natural disasters and nutrition deficits linked to food shortages and loss of livelihoods.

Cases: Álvarez et al v. Peru, Sacchi et al. v. Argentina et al., Forced Displacement of Indigenous People case (United States)

Right to Water and Sanitation
According to IPCC projections, climate change will significantly reduce surface water and groundwater resources, as well as increase the frequency of droughts in presently dry areas. This can lead to competition over water supplies for human consumption, agriculture, and other uses.

Cases: Álvarez et al v. Peru, Future Generations (Colombia), Forced Displacement of Indigenous People case (United States), Colombian Paramos decision

Right to Culture
Climate change may threaten culture through displacement or changing the climatic conditions under which certain cultural practices were possible. The most egregious cases involve those where climate change threatens to make an entire region or country uninhabitable.

Cases: Petition of Torres Strait Islanders

Right to Dignity
Cases have successfully been brought under constitutional rights to dignity, finding that climate change threatens these rights by threatening the environmental conditions under which a dignified life is possible.

Cases: Leghari v. Federation of Pakistan

Right to Food
The right to food can be impacted by climate change. For example, changes in temperature and precipitation may affect crop production of rice, wheat, and maize. It may also affect fishery productivity due to fish migrating to cooler and deeper waters in response to warming ocean temperatures. In the long term, there could be severe impacts on global food security.

Cases: Future Generations (Colombia), Forced Displacement of Indigenous People case (United States)

Equal Protection Argument
Climate change will not affect everyone equally, with some classes of people especially impacted. Many countries have constitutional provisions requiring "equal protection" under the law. A county's insufficient response to climate change can be challenged on the grounds that failing to act will violate citizens' rights to equal protection.
 * Disproportionate Impact on Women - Khan v. Pakistan and Swiss Senior Women case
 * Disproportionate Impact on Young People - Youth for Climate Justice v. Austria, et al.
 * Disproportionate Impact on Indigenous People - Lho'imggin v. Canada

Public Trust Doctrine Argument
The Public Trust Doctrine is a common law doctrine that holds that certain natural resources are preserved for natural use, and that the government must maintain and protect these resources for the public use. Numerous cases of climate litigation have argued that climate change threatens public trust resources and that governments have an obligation to act to protect such resources.

Cases:
 * Leghari v. Pakistan
 * Foster v. Washington
 * Juliana v. United States
 * Mbabazi and Others v. The Attorney General and National Environmental Management Authority
 * Ali v. Pakistan
 * M.C. Mehta v. Kamal Nath
 * La Rose v. Her Majesty the Queen

Transnational Nature of Human Rights
In response to the first climate case before the European Court of Human Rights, Youth for Climate Justice v. Austria, et al., a collection of human rights groups and academics submitted a brief outlining why citizens should be able to make claims against governments other than their own for climate-related human rights violations.

The group argues that:


 * This step is essential to live up to the objective and purpose of the European Convention Human Rights, otherwise there would be a vacuum in human rights protection and a denial of justice.
 * The Court should be able to address the obligations of several states together rather than individually so as hold each of them to account for their contribution to the harms caused.
 * The European Court should take into account that eight UN human rights treaty bodies, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights have each clarified that states must not harm, nor permit corporations under their jurisdiction, to harm the human rights of people outside their borders. Several of them have applied this obligation specifically to the impacts of climate change on human rights.

The full brief can be found here.

Suing Governments Other Than Your Own
Climate change is a global problem and often the countries and polluters most responsible exist in different countries. That is why bringing claims against governments other than your own has been a common feature in climate litigation, both in human rights cases as well as in liability cases. See Lliuya v. RWE, Youth for Climate Justice v. Austria, et al., and Milieudefensie et al. v. Royal Dutch Shell for several examples.

Government Funding of Fossil Fuels
Governments continue to be major financiers of fossil fuel projects. Funding fossil fuels with public money is not only out of line with the science, but often out of line with countries' stated climate goals. For more on arguments used against governments that fund fossil fuels, see Arguments Used to Sue Investors in Fossil Fuels.

Resources

 * A4J Climate Litigation Guide
 * A4J Template for Mitigation Claims
 * Greenpeace Guide
 * Model Statute for Proceedings Challenging Government Failure to Act on Climate Change - International Bar Association
 * UN report on link between climate change and human rights