Cit­i­zens are in­creas­ingly tak­ing the le­gal route to pres­surise lead­ers into cli­mate ac­tion

The Irish Times - Weekend Review - - NEWS | REVIEW - En­vi­ron­ment & Sci­ence Ed­i­tor Kevin O’Sul­li­van

Cli­mate ac­tion by way of lit­i­ga­tion has be­come a key front­line ac­tion, with cases against gov­ern­ments and fos­sil fuel com­pa­nies spi­ralling across the world.

The Ir­ish Govern­ment is next in the dock, as an en­vi­ron­men­tal group has claimed the na­tional re­sponse is in­ad­e­quate and con­tra­venes the hu­man rights of Ir­ish cit­i­zens.

The case is due to com­mence on Jan­uary 22nd and fol­lows sim­i­lar pro­ceed­ings in the Nether­lands.

Wins have been rare but such cases at­tract a lot of pub­lic­ity and heap pres­sure on ad­min­is­tra­tions and cor­po­ra­tions – al­ready on the back foot be­cause of their in­ad­e­quate re­sponses up to now – no­tably on fu­ture com­mit­ments to re­duce car­bon emis­sions.

What has be­come known as Cli­mate Case Ire­land (CCI), is be­ing brought in the High Court by Friends of the Ir­ish En­vi­ron­ment. The ac­tion is be­ing crowd­funded; more than 9,000 peo­ple have sup­ported its pe­ti­tion call­ing on the Govern­ment to pur­sue more am­bi­tious and ur­gent cli­mate ac­tions. The State is fully de­fend­ing its re­sponse to date.

It’s the first case in Ire­land in which cit­i­zens are seek­ing to hold the Govern­ment ac­count­able for its role in “know­ingly con­tribut­ing to dan­ger­ous lev­els of cli­mate change”, ac­cord­ing to CCI spokes­woman Sad­hbh O’Neill. The case seeks to build on Friends of the Ir­ish En­vi­ron­ment’s pre­vi­ous le­gal suc­cess – win­ning recog­ni­tion in 2017 of an un­writ­ten right to en­vi­ron­men­tal pro­tec­tion in the Con­sti­tu­tion.

The court has al­ready ruled as in­ad­mis­si­ble the opin­ion of UN Special Rap­por­teur on Hu­man Rights and the En­vi­ron­ment Prof David Boyd, who found the Govern­ment’s fail­ure to take more ef­fec­tive mea­sures to ad­dress cli­mate change “a breach of Ire­land’s hu­man rights obli­ga­tions”.

But this does not pre­vent the plain­tiffs rais­ing hu­man rights is­sues, O’Neill says. Cli­mate Case Ire­land asks the court “to quash and re­mit the in­ad­e­quate 2017 Na­tional Mit­i­ga­tion Plan [NMP] in or­der that it can be re­made to pro­tect these fun­da­men­tal hu­man rights”.

Un­der the 2015 Cli­mate Ac­tion Act, it claims the Govern­ment should not only take ad­di­tional ac­tions on an ur­gent ba­sis to im­ple­ment its cur­rent na­tion­ally de­ter­mined con­tri­bu­tions to re­duce emis­sions, “but also to seek to strengthen that con­tri­bu­tion as part of the col­lec­tive ef­fort to meet and/ or ex­ceed the tar­gets set out in the Paris Agree­ment” on cli­mate change.

Cli­mate Case Ire­land is ask­ing the court “to quash and re­mit the in­ad­e­quate 2017 NMP” so it can be “re­made to pro­tect these fun­da­men­tal hu­man rights”.

Ire­land is al­ready un­der in­ter­na­tional scru­tiny for fail­ure to re­duce emis­sions but, crit­i­cally, cli­mate change poses real risks to a range of hu­man rights, in­clud­ing vi­o­lat­ing the right to life, and the Govern­ment has a pos­i­tive duty to pro­tect these rights, O’Neill adds.

Ur­genda as­sis­tance

In the Nether­lands, the case was brought by the NGO Ur­genda on be­half of 900 Dutch cit­i­zens in 2012. In its lat­est vic­tory last Oc­to­ber, an ap­peals court up­held a rul­ing or­der­ing the govern­ment to cut green­house gas emis­sions by at least 25 per cent by 2020, from bench­mark 1990 lev­els. Since the orig­i­nal judg­ment, a new Dutch govern­ment has pledged to re­duce emis­sions by 49 per cent by 2030.

Ur­genda has been help­ing Cli­mate Case Ire­land pre­pare for its case. Its direc­tor Mar­jan Min­nesma be­lieves the Dutch rul­ing was a sig­nif­i­cant vic­tory that will boost sim­i­lar le­gal ini­tia­tives else­where in the world, in­clud­ing Ire­land.

Be­cause of its in­ter­na­tional rel­e­vance, 80 per cent of the Ur­genda court doc­u­ments are in English and avail­able for use by other lit­i­gants. Their ac­tion cen­tres on a claim of “haz­ardous neg­li­gence” and clas­si­fi­ca­tion of cli­mate change as a high- risk threat to cit­i­zens. On that ba­sis, “there is a duty of care”, and gov­ern­ments should do enough to pro­tect them, says Min­nesma.

Ire­land’s sim­i­lar­i­ties with the Nether­lands are ob­vi­ous: a highly de­vel­oped coun­try, us­ing large amounts of fos­sil fu­els over a long pe­riod, rank­ing among the coun­tries with the high­est per capita green­house gas emis­sions in the world.

Ar­gu­ments that “we are only small” do not stand up, she adds. “That ap­proach will not solve the [ global] cli­mate change cri­sis. We signed var­i­ous in­ter­na­tional agree­ments to do our fair share.

“We won on ev­ery sin­gle point. And it was a very good ex­pla­na­tion of the ur­gency of what is nec­es­sary, and that states in in­dus­trial coun­tries should do be­tween a 25 to 40 per cent CO re­duc­tion,” she notes.

“The court also said maybe 40 per cent is nec­es­sary, but in this case we only asked for 25 per cent so they didn’t make a judg­ment on that. But they clearly said that cli­mate change is a very ur­gent prob­lem with enor­mous risks, so the state should do at least the min­i­mum.”

Ur­genda ar­gues that gov­ern­ments – and coun­tries – need to do more sooner, ie be­fore 2030, to pre­vent se­ri­ous con­se­quences of cli­mate change, a view that tal­lies with the land­mark UN “1.5 de­grees” re­port. Tar­gets for re­new­able en­ergy should be 100 per cent by 2030, given what’s facing the planet, Min­nesma be­lieves.

From an ini­tial po­si­tion of ac­knowl­edg­ing cli­mate change as an enor­mous prob-

Ire­land is al­ready un­der in­ter­na­tional scru­tiny for fail­ure to re­duce emis­sions but, crit­i­cally, cli­mate change poses real risks to a range of hu­man rights

lem but not want­ing to jeop­ar­dise its in­dus­trial sec­tor, the Dutch govern­ment has in­creased its emis­sion tar­gets, but this was com­bined with a “way too op­ti­mistic” re­liance on “neg­a­tive emis­sions” – tak­ing CO out of the at­mos­phere – when the sci­ence says “it’s a the­o­ret­i­cal con­cept rather than some­thing fea­si­ble”.

Based on cur­rent com­mit­ments and the am­bi­tion of keep­ing the global tem­per­a­ture in­crease at 1.5 de­grees, in­stead of 2 de­grees, would re­quire all agri­cul­tural land in the world to be planted with trees to capt ure car­bon, she says. “That won’t hap­pen.”

A range of ac­tions is re­quired, Min­nesma says, and they should be im­ple­mented more quickly, such as build­ing car­bon-neu­tral houses; the elec­tri­fi­ca­tion of trans­port; low­er­ing max­i­mum speeds on some roads; shut­ting down coal-fired power sta­tions; and de­ploy­ing so­lar pan­els on ev­ery avail­able roof.

The Dutch govern­ment ap­pealed against the orig­i­nal rul­ing, say­ing it ef­fec­tively meant a court was for­mu­lat­ing govern­ment pol­icy, but the court re­jected that ar­gu­ment, say­ing judges must up­hold in­ter­na­tional treaties such as the Eu­ro­pean hu­man rights con­ven­tion to which the Nether­lands is a part. And it has ap­pealed the lat­est de­ci­sion; of the four par­ties in govern­ment, the largest is right-wing and “does not agree a court can make this kind of de­ci­sion”.

Most politi­cians have not fa­mil­iarised them­selves with the case, Min­nesma points out, though it has fi­nally aroused pub­lic in­ter­est. Coun­tries, mean­while, have in­sisted they are be­hind the Paris Agree­ment but, “in my opin­ion, they don’t know what it re­ally means”.

The Nether­lands still has five large coal- fired power plants, in­clud­ing three new ones opened in 2015 – “when we had our first win”. Clos­ing them would go 80 per cent of the way to­wards solv­ing its emis­sions is­sue. Elec­tric­ity emis­sions have risen since, “so we were scep­ti­cal when the govern­ment said it would work on the ver­dict.”

On the other hand, where democ­racy ap­plies and there is an in­de­pen­dent ju­di­ciary, she has con­fi­dence in the sys­tem “be­cause judges look at facts”. Her ad­vice to CCI is to make it “a crowd-plead­ing case” so con­cerned cit­i­zens can be­come co-plain­tiffs. That was how so many, es­pe­cially young peo­ple, have gone ev­ery step of the way with Ur­genda.

The sci­ence in­di­cates the Earth is head­ing for a 4- de­gree rise in global tem­per­a­tures, which equates to an un­liv­able planet. “We still act as if there’s four Earths, but there’s only one.”

Dutch peo­ple – in­clud­ing farm­ers – did not be­lieve in cli­mate change for a very long time, but now ac­cept ex­treme weather events such as the drought of 2018 ( when the coun­try had no rain for four months) were linked to global warm­ing.

A decade ago the coun­try de­vised a 100-year plan to counter sea level rises, in­clud­ing spend­ing ¤ 1 bil­lion a year on dykes. Its pro­jec­tion then was a sea level rise of 80 cen­time­tres to 1.2 me­tres; the lat­est sci­ence sug­gests that due to melt­ing arc­tic ice the worst case sce­nario is 2.5 to 3 me­tres this cen­tury.

Ur­genda’s main mis­sion is retrofitting houses to be “cli­mate neu­tral”, which costs ¤35,000 but over time pays for it­self based on monthly en­ergy bills. This com­bined with im­proved elec­tric mo­bil­ity – ie EVs with large num­ber of fast- charg­ing points – has the ca­pac­ity to make a ma­jor con­tri­bu­tion to de­car­bon­is­ing the coun­try, she pre­dicts.

Its so­lu­tions fo­cus led them to an en­ergy plan, with in­put from hun­dreds of sci­en­tists and eco­nomic an­a­lysts, on how to switch to 100 per cent re­new­ables within 15 years. Ev­ery municipality should have nine wind tur­bines, each gen­er­at­ing 3 megawatts ( MW) of power, it says. There should be nine so­lar pan­els per per­son. It in­cludes use of geo­ther­mal power in green­houses and build­ing 4,500 tur­bines off­shore, each gen­er­at­ing 8MW. If one en­tity does more, an­other can do less. But ul­ti­mately, “we will then have enough en­ergy for all sec­tors.”

It re­quires the vi­sion of US pres­i­dent Franklin D Roo­sevelt, who recog­nised the need for car com­pa­nies to build planes dur­ing the se­cond World War, Min­nesma says.

Know­ing what is hap­pen­ing through­out the world and so­lu­tions that work, mak­ing the tran­si­tion to a de­car­bonised world is re­al­is­able – but there is an ab­sence of good lead­ers, she says. “If the good lead­ers are there, we can take the win­dow of op­por­tu­nity and go for it.”

Mar­jan Min­nesma, direc­tor of en­vi­ron­men­tal group Ur­genda, ar­rives at court in The Hague in May 2018 for the group’s case against the Dutch govern­ment. Be­low: A wind­mill along­side a coal-fired power sta­tion at the docks in Rot­ter­dam. Ire­land’s sim­i­lar­i­ties with the Nether­lands are ob­vi­ous: a highly de­vel­oped coun­try, us­ing large amounts of fos­sil fu­els over a long pe­riod PHO­TO­GRAPHS: JERRY LAMPEN/AFP AND ADRIAN GREEMAN

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