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Court Orders Government to Do More to Fight Climate Change

The fourth week of June 2015 saw important legal rulings. One of the most important judicial decisions didn’t have to do with marriage or health care. It didn’t come from the U.S. Supreme Court. Or any other appellate court. Or any court in the United States.

It came from a trial level court in The Netherlands.

On June 24, 2015, the Hague District Court ruled that the Dutch government has to ensure that Dutch greenhouse gas (ghg) emissions in the year 2020 will be at least 25% lower than those in 1990. The ruling is important not just because it requires a substantial reduction in Dutch ghg emissions quickly, but also because it could be used to persuade courts in other countries to follow suit.

The Dutch ruling (translated into English here) concludes that “the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the state must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.”

The plaintiff in the Dutch case is Urgenda (“urgent” and “agenda”), a Dutch foundation that “aims for a fast transition towards a sustainable society with a circular economy” and 900 co-plaintiffs. More information about Urgenda and the Dutch ruling is available here.

The idea for the Dutch climate case came from the book Revolution Justified written by Dutch lawyer Roger Cox, who is also one of the lawyers representing Urgenda.

Urgenda / Chantal Bekker

As support for its ruling, the court relied on the United Nations Framework Convention on Climate Change, adopted in 1992. All UN member states signed that treaty. Although the UN Framework Convention on Climate Change set no limits on ghg emissions and is therefore considered legally non-binding, the Dutch ruling shows that the treaty can be used by courts to require national governments to take steps urgently needed to protect the planet and its inhabitants.

Under United States law, treaties have the force of law, equivalent to a federal statute. Theoretically, a federal court in the United States could issue a ruling similar to the Dutch ruling, but the U.S. Supreme Court in the 2011 decision of American Electric Power Co. v. Connecticut rejected a lawsuit seeking to force the largest emitters of CO2 in the nation to reduce emissions on the grounds that the Clean Air Act authorizes the Environmental Protection Agency (EPA) to address climate change and therefore federal courts cannot make law on that same subject. The EPA is currently exercising that authority with its Clean Power Plan. Many climate scientists and concerned citizens support the Clean Power Plan but believe it will not provide the deep reduction in ghg emissions soon enough to avoid catastrophic climate change.

A successful lawsuit in the United States to force substantial reductions in ghg emissions seems unlikely at this time. But there is hope that the Dutch ruling could lead courts in other nations to follow suit. A lawsuit has already been filed in Belgium and one is in preparation in Norway.

One issue with the Dutch ruling is that it does not specify how the Dutch government can achieve the required reduction in ghg emissions. The best way to make that happen is through carbon pricing.

If you think that the Dutch ruling isn’t as important as the historic decisions handed down this week by the United States Supreme Court on same sex marriage and the Affordable Care Act, then consider this statement from the summary of the Dutch court’s ruling:

“In climate science, it has been widely accepted since at least 2007 that the emission of greenhouse gasses by humans, especially CO2, through the burning of fossil fuels, such as coal, oil, and gas, makes it highly probable that dangerous climate change will occur within several decades with irreversible and grave consequences for people and the environment.”

The Dutch ruling, coming one week after Pope Francis issued his papal encyclical on climate change, signals that worldwide concern is taking hold and responsible leaders are beginning to take action.

Health care and civil rights for all are very good things, but continued existence is a prerequisite.

 

Photo credit: Urgenda/Chantal Bekker. Top photo: The Dutch court reading the summary of its ruling. Bottom photo: Urgenda lawyer Roger Cox after winning the historic Dutch climate case.

Economists Agree on the Solution to Climate Change

By now everyone should know that there is no reasonable debate among scientists that global climate change AKA global warming is real, is caused by greenhouse gas emissions primarily carbon dioxide (CO2), and will cause catastrophic consequences for humans in the coming decades if we do not substantially reduce emissions soon. If you doubt any part of that statement, check out Lawyers Should Listen to Scientists on Climate Change.

What seems to be less well known is that there is a near universal consensus among economists that the most effective way to reduce CO2 emissions is through some type of carbon pricing policy.

In the United States, proponents of a carbon pricing to reduce CO2 emissions include well known economists such as:

That’s just some of the many prominent economists who support carbon pricing. In fact, most economists support carbon pricing because it would make using fossil fuels more expensive, so people would use less of them. At the same time it would make other alternatives—like conservation and renewable energy sources much more attractive. It would “unleash a wave of innovation to develop technologies, lower the costs of clean energy and create jobs as we and other nations develop new energy products and infrastructure,” as Hank Paulson said.

One particularly attractive alternative is the carbon fee and dividend proposed by Citizens Climate Lobby. Under this proposal, all of the revenues collected would be returned to citizens on a per capita basis. As George Schultz has said, “It’s not a tax if the government doesn’t keep the money.”

We already know that climate change is a serious problem that must be addressed soon or our children will face a world growing increasingly unlivable. Now we know that there is a solution endorsed by all serious economists. Faced with this knowledge, we as lawyers should do all we can to convince elected officials to establish effective carbon pricing now.

You can start by signing the Petition for Immediate Action On Climate Change