For instructors who include a module on climate litigation, it’s been a watershed summer, with two cases presenting excellent opportunities to discuss the potential role of such actions in inducing more substantive actions by government. In July, in a suit brought by a Dutch NGO, (Urgenda v. Netherlands) a District court in the Hague held in that the State was in breach of its duty of care to Dutch society by failing to take sufficient mitigation measures to prevent dangerous climate change. The court ordered the Dutch government to “limit or have limited” national greenhouse gas emissions by at least 25% by 2020 vs. the government’s current mitigation path of 17%.
Following closely on the heels of this case is a September decision by the Lahore High Court Green Bench (Ashgar Leghari v. Federation of Pakistan). The petitioner in this case was a farmer who challenged the government of Pakistan’s implementation of the National Climate Change Policy (NCCP) and Framework for Implementation of Climate Change Policy on human rights grounds. More specifically, petitioner alleged that the failure of the federal government to implement climate measures “offends the fundamental right to life under article 9 of the Constitution” by threatening posing a serious threat to water, food and energy security of Pakistan. Moreover, petitioner contended that government inaction, and consequent climatic threats, undermined protection of his right to a healthy and clean environment and human dignity under article 14 of the Pakistani constitution, as well as constitutional principles of social and economic justice. He also alleged that certain international environmental principles, which constituted “fundamental rights” were apposite, including the doctrine of public trust, sustainable development, the precautionary principle and intergenerational equity.
In finding for the petitioner, the court held that:
- The primary cause of climate change is anthropogenic and its manifestations, including flooding, have already begun affecting Pakistan “with far reaching consequences and real economic cost;”
- The focal point of the Framework for Implementation of Climate Change Policy are adaptation efforts; however, to date “no material exercise has been done on the ground to implement the Framework” by relevant Ministries and Provincial Departments;”
In order to “expedite” protection of “the fundamental rights of the people of Punjab,” the court established a Climate Change Commission, comprised of pertinent government officials, with the powers to effectuate effective implementation of the NCCP and Framework and to compel cooperation by Ministries and Departments. Moreover, the court directed responsible ministries and departments to appoint a focal person on climate change to prepare a list of adaption measures to be completed by the end of 2015. The Green Bench also retained jurisdiction (continuing mandamus) to hear reports from the Commission concerning their progress in carrying out these orders.
It’s been my experience that both law and non-law students are very interested in climate litigation. Some of the questions that might grow out of discussion of these cases are the following:
- Should non-elected judiciaries be permitted to impose mandates with substantial fiscal and social implications on society?
- Are decisions of this nature likely to have substantive impacts in terms of climate change policy? Is there any empirical evidence to date?
- What are the implications of decisions of this nature for international climate policymaking?
