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Can we sue our government over 'climate change'?

By Don Aitkin - posted Tuesday, 15 September 2015


On 24 June, a week after the Pope's encyclical on 'climate change', the district court in the Hague, in the Netherlands, ordered the Dutch Government to do more in the fight against 'climate change'. It instructed that Government to revise its current policies to ensure that greenhouse gas emissions were reduced by at least 25 per cent by 2020, not the 17 per cent that is the present goal.

The case against the Dutch Government was brought by the Urgenda Foundation (Urgenda = URGent agENDA), an environmentalist lobby, on its own behalf and in the interests of several hundred persons. The Foundation seems to have come to the view that in the global warming domain the legislature cannot act properly, because there are too many conflicting interests, so the court have to do the politicians' work for them. And so far, Urgenda has had a striking success.

The court decided that the IPCC's AR5 was, as it were, the scientific Bible, and based its resort to science on what it found there. Essentially, the ruling is based on the finding that global warming creates a great danger to the world, and it follows that nations must act to avert the danger. EU environmental law puts the responsibility for maintaining a high level of environmental protection on governments. And the court argues that it doesn't really matter that nothing the Netherlands does will really affect the outcome; what is important is that it does its bit and is seen to do so.

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So the uncertainty of the science and the cost of closing down fossil-fuel generation of electricity, for example, are not important in this context. In effect the Dutch court has legislated aspects of the IPCC's report, and by extension international commitments that nation-states make. The Dutch court published its ruling not only in Dutch but also in English (and at the same time), which is unusual to say the least, and implies that it thought the ruling had international implications.

It does, of course, because at the moment the ruling opens up a wide field for 'climate change' litigation, and not just for Dutch companies. In principle, Dutch citizens could call on the courts to deal with international companies, or even nations themselves, if it can been argued that they are contributing to global warming. Perhaps for this reason, the Dutch Government has announced that it will appeal the ruling, and it has until later this month to actually do so.

It will probably argue that the court has usurped the proper powers of Parliament and government, even in the Netherlands, which has a civil law jurisdiction, not the common law tradition on which our system is based. It may also argue that that the notion of 'danger creation' used in the ruling relates to people who negligently create a risk of injury or danger - like leaving a cellar hatch open, as in a celebrated Dutch case - and that widening it in this new fashion is unjustifiable.

There is no real defendant in this climate case, and the court accepted that warming was global, not confined to the Netherlands. In addition, the Dutch Government has so far been following EU law in fixing on its 17 per cent reduction target, so the Dutch court is apparently suggesting that the EU law is wrong. Such a statement would be outside its competence, for EU law is superior.

Much then depends on what the Dutch government decides to do, and on how it argues its case. At stake is not simply greenhouse gas emissions targets, but a broader principle - that it is the legislature, not the courts, which makes law. If the ruling stands it will not be long before other concerned citizen groups take to the courts to have them deal with what some citizens see as unacceptable risks in other areas, like immigration, or genetically modified foods, or sporting injuries. Where does it stop?

Could there be an Urgenda case in Australia? The Urgenda Foundation is apparently assisting citizen groups in other European countries to mount their own cases; it seems that there will be similar cases in Belgium and Norway. There are doubtless environmentalist groups here that will have been encouraged by the Urgenda success in the Netherlands. My understanding is that while it is not impossible (lawyers are clever people), there are real obstacle to a public-interest case of this kind.

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Australia's common law tradition means that the law is there to protect the rights of individuals, and can't easily be invoked in the interests of the 'environment' or of some kind of 'public interest'. As is likely to be argued in the Netherlands, the rule in our country is that Parliament is the place where issues about the public interest are argued out. It is hard to see Urgenda or a comparable body mounting a case in Australia comparable to the Dutch one: the plaintiff body would not have 'standing' - that is, it would not be able to show a real connection between itself and the harm alleged to be occurring or to have occurred.

It is possible that a few hundred concerned citizens could try for some kind of 'class action' but again, it is hard to see how they could establish that they had been injured, or might be, by the actions, or lack of action, on the part of the Commonwealth. In Canada a few years ago concerned citizens tried to get the courts to tell the Canadian Government to follow the Kyoto Protocol. The Supreme Court said that the matter of the Kyoto Protocol was 'a non-justiciable political question'. My guess is (no fee sought) that our High Court would say much the same thing, if the matter ever got to it.

I don't rule out some sort of action. It would need to be based on a claim about negligence on the part of the Government, argued to have something like a duty of care to the plaintiffs. Then the plaintiffs would need to show, I think, that the harm of global warming was known, and that the Government should have acted to do something about it, and that what it had done was not enough. Someone who thinks along these lines suggests that the word 'Commonwealth' itself carries the implication that what is done in Australia must be done for the good of all. If that is accepted, then the court in question could look at the 'duty of care' argument.

All this was easier in the Netherlands, where a mixture of civil law and EU law gave the plaintiffs a foothold or two. I don't think those footholds are available in Australia to anything like the same degree. But I wouldn't be at all surprised to see some kind of legal test sought in the next little while. It makes you think, too, that if such a case were successful, why couldn't the sceptical in our community try for a counter ruling, using much the same arguments but using other science to support their case? The answer, again, is that this is the job of Parliament.s!

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This article was first published on Don Aitkin.



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About the Author

Don Aitkin has been an academic and vice-chancellor. His latest book, Moving On, was published in 2016.

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