How courts are moving the needle on climate
In the book “Climate Capitalism,” journalist Akshat Rathi paints a picture of ways in which a green economy is possible, and in many cases already happening. This excerpt looks at the influence of court challenges in inducing change by private companies and governments.
In 2013 climate activists and the non-profit Urgenda sued the Dutch government for setting inadequate climate targets. The Intergovernmental Panel on Climate Change’s fourth assessment report had found that rich countries needed to cut emissions by 25 per cent by 2020 relative to 1990 levels to ensure that the world does not warm beyond 2 degrees C relative to preindustrial levels. The activists argued that the Dutch government’s climate promise must follow the science and the government had a duty to ensure that.
In an initial 2015 ruling the Dutch district court that heard the case found the activists’ argument reasonable and demanded the government step up its efforts to reach the 25 per cent goal by 2020. The government appealed, and the activists in response argued that failure to meet the goal would be a dereliction of its legally mandated duty of care, because climate change would endanger citizens’ fundamental right to life.
This duty-of-care argument has legal precedent going back decades. In 1932 May Donoghue and her friend went to a café in Scotland. Donoghue ordered a Scotsman icecream float — ginger beer poured over ice cream. The owner of the café brought the ice cream in a tumbler and poured the ginger beer from a brown opaque bottle. After Donoghue consumed some of her ice-cream float, her friend poured more ginger beer over — and a dead snail tumbled out of the bottle. That night Donoghue felt ill, and some days later had to be treated for shock and gastroenteritis. She sued the ginger beer maker and won the case after a lengthy battle that went all the way to the highest court at the time, the House of Lords.
That set a legal precedent for a duty of care to the people being served. It’s not just that every ginger beer maker must ensure that the product it sells does no harm to customers, but every entity selling
products or providing a service must do so too.
Many decades later, in the mid 2010s, climate activists argued that if the Dutch government was not working rapidly to reduce greenhouse gas emissions then it was in violation of the same duty of care to protect the fundamental human right to live safely on this planet. The power in such an argument is that fundamental rights are sacrosanct in most countries in the world. In addition, the climate science underpinning the IPCC reports — the summaries of which are signed by nearly all nations after a line-by-line review — is strong evidence that inaction on climate change constitutes a neglect of duty of care.
The Dutch government’s appeals went all the way to the country’s Supreme Court, but to no avail. The climate activists and Urgenda won, and the court ordered the government to raise the ambition of its climate target.
These successes have emboldened activists to get creative and use the Urgenda case to go after private companies. In 2019 the Dutch arm of Friends of the Earth sued then Netherlands-headquartered Shell on the same duty-ofcare violation. It alleged that Shell’s climate targets were not in line with the Paris Agreement and the company must reduce emissions 45 per cent by 2030 relative to 2010 levels. After two years of hearings, the group won in a lower court. Shell is currently appealing the decision.
A similar court challenge was brought in Germany in 2020, when activists supported by non-profits Germanwatch and Greenpeace sued the government for setting climate targets that didn’t match up with the Paris Agreement. The group alleged that Germany not doing its fair share to cut emissions was a threat to the fundamental right to life and physical integrity enshrined in the country’s basic law.
Unlike the Dutch case, which dragged on for years, Germany’s federal constitutional court ruled almost right away. And as a result, in 2021 the long-serving chancellor, Angela Merkel, committed to raising the country’s climate goals. As one of her last major moves before leaving office, Merkel committed Germany to bring its net-zero goal forward from 2050 to 2045, which made it the most ambitious target among major economies.
But the success of such cases isn’t guaranteed. In Australia in 2020, eight young people used a duty-ofcare argument to call for an injunction to stop the government from approving a new coal mine. The Federal Court of Australia accepted the argument as valid and created a precedent for duty of care, but nevertheless declined to provide an injunction.
The government appealed against the duty-of-care finding, and a higher court agreed to overturn it. In its reasoning, it said that questions of policy are “unsuitable for the judicial branch to resolve.” In other words, courts may be overreaching in interpreting the duty of care as it connects to greenhouse gas emissions and venturing into territory that instead is the task of government and elected legislative bodies.
The creative use of law towards climate outcomes is for some climate activists a tactic of last resort. Under the Paris Agreement each national government is supposed to reduce emissions towards the shared goal of keeping average global temperatures from rising indefinitely, but there is no set punishment if a country fails at its selfset goals.
“National courts offer a way of advancing some form of hard accountability with real sanctions attached to those climate commitments,” says Tessa Khan, founder of the Climate Litigation Network. In a little more than a decade nearly 2,000 cases have been filed around the world’s courts to force governments and corporations to do more to act on climate change.
Still, Khan is the first to acknowledge that court-won battles do not always lead to the changes needed. In the 2013 Dutch case, for example, the government dragged its feet, appealing repeatedly until the final judgment came at the end of 2019 — only a year before the 25 per cent emissions reduction target. It took a pandemic-related slowdown in the economy for the government to get on track to meet that goal. Had that not happened, Khan thinks, the government could have got away with it by arguing that it had tried its best. That can be a valid defence in duty-of-care cases.
While losses in courts may shame a government, real accountability comes from the democratic process. The ideal situation would be a country where citizens elect leaders with a climate mandate, forcing those leaders to create climate laws with broad acceptance across the political spectrum.
It is already happening in some places, where demand for climate action is growing in popularity so quickly that not meeting climate targets can become political suicide. Australia, for example, saw six prime ministers in over a decade as it swung wildly on climate policies, with the most recent election in 2022 providing the clearest mandate to do more on climate.
In places where the combination of factors has been in place for a while, progress can be fast. The U.K. has had six different prime ministers since 2007, when conversation around the Climate Change Act began. Despite coming from different political parties and with very different policy ideas, every single one has strengthened the country’s climate targets.
Still, even in a place like the U.K., climate activists may need to turn to the courts. The Climate Change Committee warned in 2021 that without adopting more ambitious policies soon, the U.K. may fail to cut emissions fast enough to meet its goals. As a result, non-profits Friends of the Earth, ClientEarth and the Good Law Project sued the government in 2022 for failing to set the necessary climate policies.
The court case on its own may not be enough to compel the government to change. But it also enables the conversation around climate goals to happen in public and that forces the government to explain its actions. Climate laws mean governments not meeting their targets can be sued. However, the bigger impact comes from reputational damage. With demand for climate action growing in popularity, not meeting climate targets can become political suicide for some.
Democracy can be the biggest way to rein in the excesses of capitalism. While not all countries in the world are thriving democracies, it is the system that runs a majority of countries, including most of the largest emitters. If anything, as economist and journalist Martin Wolf argues, neither capitalism nor democracy can survive and thrive without the other.
Still, even with a willing population giving politicians a climate mandate, it requires careful thought to ensure that climate laws work as intended in cutting emissions. The U.K.’s climate law provides a framework that each country, with its unique needs, can tweak. Outside the realm of government, laws provide the market signal for corporations to chart out their future. As the biggest unit of capitalism, companies are learning to be a part of the net-zero world. If not, the biggest losers will be shareholders, who aren’t going to sit by quietly as the tragedy unfolds.