Judges have started stepping in where regulators fear to tread, delivering high-profile victories to activists who have sued on behalf of nature—and future generations.
The idea of assigning legal rights to nature, which seemed a pipe dream for decades, seems to be gaining traction. As the New York Times noted in its recent obituary for Christopher Stone, his influential 1972 book Should Trees Have Standing? “long seemed out of step with legal reality, but that has begun to change.”
In 2017, courts in New Zealand bestowed legal “personhood” on the Whanganui river and granted the Maori people standing to file protective lawsuits. Likewise, India deemed the Ganges and theYamuna rivers to have the same status as “living human entities” and, last year, Bangladesh did the same for all rivers within its borders.
Now climate activists have filed hundreds of new cases—some on behalf of future generations— to focus judicial power on carbon emissions. And they have won surprising victories in the Netherlands, Germany, and Australia, reigniting hopes that judges will impose tough choices that other branches of government have avoided.
But do big wins in the courtroom translate to a reduction in carbon emissions on the ground? On this point, it seems that the jury is still out.
Let’s look first at the optimists’ argument:
• • •
Courts can force us to make difficult social changes fast enough to put the brakes on climate change.
1. The pace of climate lawsuits has picked up dramatically. A comprehensive report published in April by legal and economic experts counted 1,727 climate-related lawsuits from 1986 to 2020. Half were filed within the last five years. A helpful database maintained by Columbia University illustrates the remarkable breadth of legal theories and jurisdictions these legal actions are exploiting, particularly within the U.S.
2. Activists have chalked up several dramatic wins in just the past year.
A court in The Hague dropped “a groundbreaking verdict,” as Rolling Stone put it, on Royal Dutch Shell, ordering the oil giant to slash its emissions 45% by 2030. The class-action suit by some 17,000 plaintiffs claimed that Shell’s carbon pollution violates human rights.
Nine young people challenged Germany’s 2019 emissions-reduction law as insufficient—and the nation’s highest court agreed with them. According to the New York Times, the top justices ordered the legislature to fix the law by the end of 2022 by setting long-term targets for emissions.
And the Australian Federal Court, ruling in a class-action suit on behalf of all children in the country, ordered for the first time that the environment minister has a “duty of care” that obliges the government to protect them from climate change. As one expert pointed out in The Conversation, the ruling knocks down the first hurdle to making claims of negligence when government agencies approve climate-damaging industrial projects.
3. Historically, landmark rights cases have actually forced other parts of the government to change course. In the U.S. and many other nations, court rulings on the rights of minorities and underserved populations forced legislators to repeal discriminatory laws and coerced presidents and prime ministers to halt discrimination. Courts have expanded rights—to privacy, reproductive freedom, and marriage, for example—to solve social and technological problems that constitutions never anticipated.
• • •
The wheels of justice turn slowly and unpredictably—and individual legal actions could prevent nations from cutting emissions in sync.
Skeptics worry that litigation generates slower, less durable, and more chaotic progress on climate action than legislation and treaties do.
1. Losers almost always appeal, postponing real change too far into the climate emergency. Within days of its court loss, that’s what Shell announced it would do. Legal systems tend to be conservative by design, with multiple levels of appeal available that let polluters shop for sympathetic judges and drag cases out for years. Remember the Deepwater Horizon oil spill of 2010? Some of the resulting lawsuits are still ongoing.
2. Ideological judges can ignore voters and turn cases into roadblocks to progress. “The Supreme Court is poised to give itself a veto power over much of the Biden administration’s authority,” a SCOTUS expert warned recently in Vox. Recalling the court’s 5–4 decision in 2016 to block Obama’s Clean Power Plan, this analyst argues that with six conservative justices now dominating the court, Joe Biden “is likely to be the first president since Roosevelt to face a judiciary that’s so eager to rein in agency power” in ways that undermine new environmental regulations.
3. Cutting emissions requires international diplomacy, but judges say “that’s not my job.” The Paris Agreement, which may be humanity’s last chance to reach net-zero emissions in time to stave off catastrophe, is in a precarious state. If court orders limit political leaders’ ability to cut compromise deals with their international partners, the whole thing could fall apart.
• • •
What to Keep an Eye on
1. Better use of scientific evidence in climate lawsuits. Anthropocene reported on a recent study that found “most suits didn’t make full use of the scientific evidence available. Some provided no evidence of causality, and others lacked quantitative estimates of how climate change contributed to the events at issue.” With better scientific advisers, activists’ lawyers may win more and bigger cases.
2. The suit to halt Norwegian oil drilling in the Barents Sea. Greenpeace’s plea to revoke Norway’s Arctic oil leases was defeated three times in Norwegian courts but could get heard by the European Court of Human Rights, The Guardian has reported. The case will test the idea that emissions-intensive development violates the rights of young people and those who stand to lose their livelihoods to global warming.
3. The German legislature’s response to the order from its court. Winning a court case—even a landmark one—is less than half the battle. Legal strategies don’t actually work until they bend the trajectory of emissions toward zero.