How a legal revolution could fight global warming
For years, Dutch lawyer Roger Cox argued that only law could save humanity from a climate crisis. He even wrote a book about it: Revolution Jus
tified. It was an intriguing concept but few believed it would succeed.
Then in June, in a historic verdict, a Netherlands court ordered the government to cut emissions by 25 per cent in five years to fulfil its duty of care to protect citizens from climate change. Cox broke down in the courtroom, crying and shaking.
“It was an emotional moment,” says Cox, who led the lawsuit on behalf of Urgenda Foundation, an NGO, and almost 900 Dutch citizens.
He says Canada, too, could face a similar lawsuit. And yes, he says he would help. In Toronto recently to speak at an event organized by the Centre for International Governance Innovation, Cox talked about the Dutch verdict, its global impact and Canada’s shocking inaction on climate change.
You have said suing your government wasn’t a fight. But it really sounds like one.
It’s not a fight. If anything, we did it out of love for our country, for people who live there and for future generations. We are on good terms with the people in the government. We are using one of our institutions to get an important question asked. It would be strange if we encounter runaway climate change in the next few decades and would look back (and see) that no one ever thought to ask a court to rule on it.
If the court had decided that there is no liability or negligence on the part of the state, I would have lived with that. I couldn’t have lived with the fact that we were not even trying to engage our courts.
It’s ironic that the Dutch government, which has a decent reputation in the realm of climate change, was sued.
Netherlands was good (with climate action) until a few years ago. The government is not doing enough now. Look at our neighbours: Germany and Denmark are leading the world on this issue. They have very strong economies, they innovate, they have thousands of people working in the green business. They are about to reduce 40 per cent of their emissions by 2020. Netherlands needed to be held to account.
The Dutch government has said it will appeal the decision.
Actually, the government has said it will comply with the ruling, that it will increase its emissions (reduction) target from 16 per cent to 25 per cent by 2020. But the government has legal questions and so will appeal it, too.
It (the government) is afraid that this may set a precedent for other societal questions like health care. It fears that a court, in the future, could intervene in policies in other areas, too.
You are working on similar climate change litigation in Belgium. Is suing governments for inaction our future now?
I don’t know how this will develop in the next few years. But I know there is a lot of interest. Many people believe that the Paris summit (on climate, in December) will fail in the end. There will be some sort of agreement but far off what will be necessary to stay below two-degree-Celsius warming that we need to. So I know people and NGOs are already thinking about what to do next. Hopefully in a few months we will see a third, a fourth and an even fifth country doing the same. I think climate change could be the new big litigation against the government — just the way tobacco was once. (Cox has been approached by environmentalists from Ireland, England, Italy, Spain, Norway and Australia.)
Let’s talk about Canada, its climate goals and the scope for litigation.
I had been so obsessed with Netherlands’ faltering targets that I had forgotten how far off Canada is with its (targets). Canada will be 26 per cent above the 1990 emission levels in the year 2020. For a developed nation, that is just shocking, it’s unbelievable. I did not know (Canada) was so far. I would hope that the legal community here would look into the possibility of a similar litigation.
Has anyone in Canada approached you?
No. That is one of the reasons I am here, to explain how we approached the case in Netherlands and to discuss, with legal minds in Canada, how it could be transformed into litigation here. I think there are some good ingredients: The science is obviously the same and criteria for duty of care could be satisfied in a Canadian jurisdiction, too. The danger is clear, the extent of danger is also clear. The real question is: Are you allowed to contribute to warming that will create havoc and will infringe on human rights all around the globe?
Would you be part of a team that wanted to take the Canadian government to court?
Yes. But it’s a very intense process. I could coach the lawyers . . . they would have to be very, very motivated. You have to put in a lot of time — these cases can’t be done if you are looking for billable hours.
Finally, what did the Dutch verdict mean for you personally?
I think it was the feeling that, as a people, you are not toothless against your government or against the big fossil fuel companies that are lobbying the government. That there is a system in our democracy that people can use to counter the shortterm interest of politics and business.
Yes, there was instant fame. (He laughs.) But it is very important that as many people know and talk about this case as possible, so I have never said no to interviews. I’m glad that the verdict is getting this attention.
Much of the Netherlands is below sea level and vulnerable to rising sea levels caused by global warming.