Posted by: Frances Lawson
As the dust settles from COP23, it seems clear that action on climate change remains insufficient to prevent dangerous levels of global warming. If political ambition is lacking, can litigation come to the rescue? November saw milestones reached in a number of significant climate change actions, two of which were brought against national governments. In New Zealand, the High Court gave its verdict on a challenge to the government’s response to climate change, and in Norway the Oslo District Court heard oral submissions concerning the government’s decision to grant licenses for petroleum exploration. Both cases explore the extent to which climate-related international law imposes obligations upon states. This is a highly contentious area, and the significance of the resulting judgments is certain to extend far beyond their borders.
In Thomson v The Minister for Climate Change Issues a 26-year old law student brought an application for judicial review of the government’s dual decarbonisation targets:
● 30% reduction in greenhouse gas emissions (GHGs) by 2030 relative to 2005 levels (30/30), issued in accordance with the Paris Agreement as New Zealand’s nationally determined contribution (NDC)
● 50% reduction in GHGs by 2050 relative to 1990 levels (50/50), set under its domestic Climate Change Response Act 2002 (“the Act”)
While the judge technically dismissed the claimant’s application, it found in her favour in relation to the 50/50 target but decided against issuing a remedy given the strong climate pledges of the new Labour government.
This was the first time that the courts have been asked to review a country’s NDC. A preliminary question had to be answered: is this even a matter for the judiciary? The defendant argued it was not, pointing out that it was not set under domestic law but as part of an international agreement – foreign policy being the sole domain of government – and that many socio-economic and other factors need to be weighed in the balance, a task the courts are not equipped to handle. However, heavily influenced by the growing line of climate change case law in other jurisdictions – from the Dutch Urgenda case to the US case of Massachusetts v Environmental Protection Agency – the NDC was found to be amenable to review. This section of the judgment is likely to be used by environmentalist litigators elsewhere as a useful precedent.
Another key question was whether there are limits to the freedom of states to select the commitments contained in their NDCs. The claimants argued that the 30/30 target should have been more ambitious, on the basis that it falls short of what is required to adequately respond to the threat of climate change. However, while less ambitious than it might have been (and less ambitious than the 50/50 target), the judge noted that NDCs are subject to continual review as part of the UNFCCC negotiations and that the 30/30 target fell within the bounds of the commitments made under the Paris Agreement. In other words, the Paris Agreement may provide some parameters in terms of nationally determined contributions, albeit fairly weak ones.
Are there limits to the basis upon which a state decides its NDC? According to the claimant, when setting the NDC the government was required (but failed) to consider: i) the cost of dealing with the effects of climate change, ii) the impact of climate change on the people of Tokelau (a low-lying New Zealand territory) and other Pacific Islanders, and iii) the fact that globally, the current NDCs do not limit global temperatures to “well below 2 degrees” as per the objective of the Paris Agreement.
It was held that the government was not obliged to take i) and iii) into account on the grounds that the Paris Agreement neither stipulates a specific way of assessing the costs and benefits of NDCs, nor requires states to make up for any shortfall in global efforts to meet the 2 degree target. It was required to consider ii), but only in relation to Tokelau (and not other pacific islands) due to Tokelau’s “dependence on New Zealand and its status in international law” (para 157). The judge did not find a breach of this requirement.
The court had to decide whether there was an obligation on the state to reconsider its 50/50 target in light of the latest scientific consensus, as provided by the 5th Assessment Report (AR5, published in 2014) of the Integovernmental Panel on Climate Change (IPCC), and if so, whether the duty to do so had been fulfilled.
In finding for the claimant on both counts, the judge identified an implied duty deriving from international law. The Climate Change Response Act 2002 provides the relevant Minister with the discretion to review the 50/50 target, and under New Zealand law, discretionary powers must be read in a manner consistent with the country’s international duties. It was held that when considered together, certain passages in the Paris Agreement make clear that parties: “should update their individual measures in light of [relevant scientific] information” (para 91, emphasis added).
Although the use of ‘should’ may suggest a degree of choice, the judge concluded that the government must reassess its targets set under the Act in order to “to give effect to…what New Zealand has accepted, recognised and committed to under the international instruments” (para 94, emphasis added). On this view, states are not merely encouraged to ensure their climate action adequately considers the latest evidence, but are compelled to do so under international law.
This interpretation of international law is significant. It is likely to add to the weaponry of environmentalists around the world that believe politicians to be ignoring the evidence on climate change; this judgment is an indication that the Paris Agreement may be taken by national courts – in certain circumstances – to compel them otherwise. Of course, an obligation to ‘review’ a target is not the same as an obligation to set higher targets, but it may provide pressure to do so.
“In times when politicians are wavering and non-committal, it demands courage from the courts to overrule political decisions in order to safeguard our future.” – Truls Gulowsen, Head of Greenpeace Norway (Interview with the Guardian)
On 22 November 2017, oral hearings concluded at the Oslo District Court concerning a decision to issue licenses for oil and gas exploration in new areas of the Barents sea. The action, brought by Greenpeace and Nature & Youth, a Norwegian environment-focused youth organisation, and with the support of 500,000 signatories, challenged the compatibility of expanding oil drilling with tackling climate change. It is centred on the decision’s alleged incompatibility with Article 112 of the Norwegian Constitution that states:
“Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well…The authorities of the state shall take measures for the implementation of these principles”.
The claimants challenged the decision to issue licenses on substantive and procedural grounds:
1) The decision to issue licenses being incompatible with Article 112
2) The government breaching its obligation to properly consider Art 112 when issuing the licenses
The incompatibility of the license decision with Art 112
What does Article 112 require? Is it a conduit for bringing international climate change law into the Norwegian constitution, and if so, what are the consequences?
Neither Norwegian case law nor statute set out the substantive obligations of Article 112. Given this, the claimants invoked the ‘presumption principle’, according to which Norwegian law must be interpreted in accordance with international law, and claimed that the licensing decision breaches it.
The relevant international obligations include the ‘no harm’ principle, a feature of customary international law according to which states must “prevent, reduce and control the risk of environmental harm to other states”, the ‘precautionary principle’, under which the absence of scientific certainty should not prevent states taking action to limit or prevent a risk of serious or irreversible environmental harm provided there are reasonable grounds for believing that such harm could or will occur, and a recent statement by the UN Human Rights Committee in relation to Article 12 of the International Convention on Economic Social and Cultural Rights 1966 (ICESCR):
“Since climate change directly contributes to the violation of human rights, States have an affirmative obligation to take measures to mitigate climate change…”
Do these principles prevent the extraction of more fossil fuels? The risks associated with climate change are well documented. The drilling licenses in questions have an estimated contribution of 4,767m tonnes of CO2 or 0.5% of the world’s remaining carbon budget if global temperatures are to be held within a 2 degree limit. Additionally, some exploration zones lie deep in the Arctic and under the ‘albedo effect’, black carbon produced during extraction could cause the surrounding ice to melt. Therefore, it may seem that that drawing from these untouched reserves is incompatible with Norway’s duty to refrain from accelerating climate change, especially as it indicates an intention to continue extracting fossil fuels well into the future. However, as petroleum exploration is lucrative for the Norwegian economy, the government is reluctant to make a decisive move away from it.
Similar to Thomson, the government’s position is that decarbonisation efforts are outside the purview of the courts. Should the judge find the issue amenable to review, the government’s submission was that Article 112 doesn’t create individual rights but instead expresses societal aims. Even if it does impose obligations, the government claimed these have not been breached. It put forward a number of arguments, chief among these being that international agreements allocate fossil fuel emissions to the place of combustion, not the place of extraction. 97% of Norway’s electricity comes from renewable sources and therefore the bulk of the extracted oil and gas would count towards the emissions of other countries.
If the court does find that international law – whether through the Paris Agreement or otherwise – provides substantive obligations to take precautionary measures on climate change, this could be a watershed moment. It could force states to reconcile with an uncomfortable truth; that unfettered growth is incompatible with our duty to protect the planet.
The obligation to consider Article 112 when making the licensing decision
Arguably, the claimants are on stronger footing with their fall-back claim that at a minimum Article 112 requires the government to take into account the potential climate change impacts of its decision. The government’s position is that this was done by parliament when it voted down proposals to ban the issue of licenses on climate change grounds. However, the court may need to be convinced that parliament not only refused to veto the proposed licenses, but that it also refused to amend them in light of the potential climate change impacts.
Ultimately, this case will turn on the court’s interpretation of the obligations imposed by Article 112, as well as hotly debated issues of general public international and climate change law. Given this, the verdict – expected in early January 2018 – will be eagerly anticipated.
See the claimants’ written submissions here, and the government’s response (only available in Norwegian) here.
This piece has been co-authored by Vedantha Kumar.
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