Climate ‘Code Red’: How Our Courts Can Save the World.
Five things we’ve learned from PILS’ first Climate Justice CPD series.
The science is clear: Planet Earth is hotter than it has ever been, climate experts have sounded ‘code red’ for humanity, and research suggests we collectively have 5 years to keep the Paris Agreement’s goal of “1.5” alive.
That’s the negativity out of the way.
The good news is that we already have a tool in our possession capable of holding governments accountable for their climate commitments, a movement that is becoming more powerful by the week.
Climate change litigation – the use of court proceedings by individuals and communities to advance effective action on climate change – is flourishing around the world. Over 1,000 cases related to climate change were taken globally between 2016 and 2022. Compare that figure to the fact that 800 cases were brought from 1986 – 2014 and you can begin to understand just how important the courtroom is becoming as an arena for climate action.
At a time when Antonio Guterres is urging humanity to look for a way off the ‘highway to climate hell’, climate change litigation could be part of that exit ramp.
This year, our very first Climate Justice CPD series, co-designed with the Law Society of Northern Ireland, tapped into The PILS Project’s firm belief that lawyers here are hungry to be part of this exciting legal movement.
This blog will examine how the courts can save our planet – and how we can all help.
Here are five of the key things we learned during the 2024 Climate Justice CPD series:
- Fill in the blank: Climate justice is _________
- Climate change litigation is not going anywhere.
- Reframing your mindset is essential
- It’s already working!
- There’s a hunger to learn. Feed it!
Fill in the blank: Climate justice is _________
Our series of training workshops literally had ‘Climate Justice’ in the title, so the first goal for our series was to give attendees clarity on what is really meant by ‘climate justice’.
It’s a holistic term, designed to describe how unjust the effects of climate change are. Those countries and communities who have contributed the least to climate breakdown are more likely to suffer its consequences. Countries that have developed their economies through the leeching of fossil fuels have a responsibility to mitigate the climate consequences.
Climate justice also captures the concept that the processes we adopt to meet various climate targets and deadlines must be fair, too (often referred to as the ‘just transition’).
Climate change litigation is not going anywhere.
The idea of turning to the courts as well as taking to the streets in pursuit of climate action is not a phase. According to the very latest data from LSE’s Grantham Institute, at least 230 new climate cases were filed in 2023, with several countries lodging cases for the first time (including Panama and Portugal).
As Friends of the Earth’s Katie de Kauwe noted during the first session, research shows the success rate for environmental judicial reviews is twice the average for judicial review overall.
And it’s not a static phenomenon either. Every successful case (and sometimes the unsuccessful ones too) offers lawyers and campaigners a new nugget of guidance that they can pass on to others.
Reframing your mindset is essential.
Our Climate Justice series also wanted to start dismantling previously held beliefs that there isn’t a clear connection between climate change and human rights. There’s been a growing recognition of their interconnected nature at the international organisational level for some time.
PILS want to help practitioners in NI reframe the way that they think about environmental law: moving from an individual planning lens to a more creative mindset that recognises the inextricable links between a climate emergency and human survival.
As Laura Neal eloquently described in session #2, local communities have been left feeling that planning and environmental law is often used by developers to regulate the amount of harm they can inflict. (The Rights of Nature movement also reflects on this conflict between preventing pollution and legalising its limits.) But it is possible to use existing tools in a new way, for example using tort law to tackle pollution as a nuisance.
It’s already working!
Storytellers are often encouraged to show, rather than tell their audience what is going on. Which is helpful, because it just so happens that the roll-out of the first PILS Climate Justice CPD series coincided with incredible legal progress for environmental protectors:
- Sarah Finch’s UK Supreme Court challenge was referenced throughout the CPD series. Marc Willers KC, session #1 presenter and part of Sarah’s legal team, spoke about the case’s significant potential as it focused on the concept of ‘downstream emissions’. Weeks later, on 19 June 2024, the UK Supreme Court held that a council’s failure to assess the climate impact of oil burned from a new fossil fuel site (not just the effect of building the wells) meant that its decision to grant planning permission was unlawful. To call this case ‘groundbreaking’ is not hyperbolic. It’s already being pored over across the globe.
- When the CPD series started, the European Court of Human Rights hadn’t yet issued a judgment that created a clear precedent, connecting human rights and climate change. The KlimaSeniorinnen decision on 09 April 2024 changed all that. An association of over 2500 women in Switzerland had exhausted their legal options at national level, arguing that their age and gender made them especially vulnerable to risk of temperature-related deaths during heatwaves. The Strasbourg court recognised that government failure to act on climate change impacts human rights. Specifically, the court’s Grand Chamber held (by 16 votes to one) that Switzerland had violated Article 8 of the European Convention on Human Rights by failing to act in an appropriate or timely manner to mitigate the effects of climate change. Unanimously, the court also held that the women’s Article 6(1) rights had been breached.
- Anurag Deb, session #2 panellist, then analysed the Swiss case through a NI-lens. He noted it adds an extra level of accountability to NI’s own Climate Change Act (CCA). The Court’s conclusion that failing to take climate action is a breach of Article 8 reinforces the NI Executive’s obligations to meet the targets that it has set out. The CCA has set out core elements of Northern Ireland’s actions to combat climate change. KlimaSeniorinnen suggests that any Stormont dilution of the CCA’s core elements may result in a Convention breach under Article 8. It is an additional element of accountability and further broadens the scope for potential litigation. If Stormont does not comply with its duties, the Swiss women’s case suggests that a breach of the Human Rights Act could accompany other public law grounds in identifying a duty and the government’s breach.
There is a hunger to learn – so feed it!
Feedback forms might not be the most exciting part of an event – but for PILS, the responses were fascinating.
Not only did the positive comments about the speakers’ expertise (“really informative and engaging”) and the timely nature of the sessions vindicate our belief that the CPD series was a good idea, but the attendees also offered PILS and the Law Society of NI a new opportunity. When participants were asked what further climate justice training they’d like to receive, they listed multiple areas of law, covering everything from evidence gathering to cross-jurisdictional case briefings.
Our aim with the CPD session was to inspire, empower and support legal practitioners. Based on that feedback, there is a clear appetite among local lawyers to engage in climate justice work. The challenge for us now is to feed that hunger and continue to connect the expertise of environment defenders with supportive, confident solicitors and barristers.
Our speakers also encouraged practitioners to get on board with this work early. Given Northern Ireland’s frankly depressing track record on regulating environmental damage, there is a lot of source material from which to craft a life-changing legal challenge.
Be an early adopter of climate change litigation in Northern Ireland. It will give you the opportunity to be part of some truly profound litigation in the public interest.
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