Climate litigation ‘domino effect’ to ensure accountability, IIEA says

Climate litigation pursued by citizens and environmental activists enables them to assume a role in enforcing Government commitments on climate action, according to an Institute of International and European Affairs (IIEA) study.

Highlighting data showing a majority of climate cases taken against governments in Europe have led to outcomes resulting in greater climate regulation, it concludes. Litigation provides citizens with an opportunity to scrutinise government action – or inaction – on climate change including decarbonisation targets, the analysis adds.

The paper by Alex White SC, former minister for communications, energy and natural resources, and Luke O'Callaghan-White, IIEA researcher on climate and energy policy, examines the proliferation of climate lawsuits being brought against governments across Europe.

It evaluates the implications of the Supreme Court’s landmark judgment in the Friends of the Irish Environment (FIE) case, delivered on July 31st, 2020. It quashed the Government’s 2017 National Mitigation Plan, deeming it “excessively vague or aspirational” and lacking specificity.

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“This was a significant moment in the evolution of Irish public policy on climate change. The ruling highlighted the public appetite for climate action and was central during the pre-legislative scrutiny of the recently-promulgated Climate Action and Low Carbon Development (Amendment) Act 2021,” it says.

The Act, which was signed into law by President Michael D Higgins recently, legally commits Ireland to a 51 per cent reduction in emissions by 2030.

This, Mr White said, is "a rate of decarbonisation that has never been achieved before" – "It is the headline feature of this law. It was included during the pre-legislative scrutiny following recommendation by the FIE group."

Role of courts

Recent decisions, not just in Ireland but across Europe, raise interesting questions about the role of the courts in advancing climate action, he added.

"We have looked at three leading cases from the Netherlands, Ireland and Germany, and we have found that climate litigation has a key role to play in the supervision and enforcement of government commitments on climate action. It also represents a real opportunity for citizens and activist groups to lead public scrutiny of governments and of the extent to which they are truly implementing their own policies.

“This could have long-standing implications for the formulation of policy responses to climate change and to the interaction between judicial decision-making and policymaking,” he claimed.

He acknowledged the judicial review process had been increasing deployed in recent years, and while there was always issues between the courts and policymakers, what was known as Climate Case Ireland had shown the Government could be held account for its climate targets.

“Policy is not for judges. But the courts can – and will – intervene to ensure that policy statements, targets and legislative measures have internal coherence and credibility, and are faithful to what the state has said it is setting out to achieve,” the authors argue.

Mr O’Callaghan-White said the perception that climate cases were typically unsuccessful was untrue. “A majority of cases taken against national governments result in better climate regulations. This will inspire more cases in different jurisdictions . . . climate litigation will continue to be an effective method to accelerate climate action, as it affords citizens the opportunity to scrutinise and supervise government action through court intervention”.

In turn, this will heighten the sensitivity of policymakers and significantly increase evaluation of government action (and inaction) on climate change, beyond the electoral cycle,” said Mr O’Callaghan-White. “With each successful climate case taken against a state, the corpus of international jurisprudence grows, which will reverberate creating a ‘domino effect’ in climate litigation.”

“Each judgment adds to the resource base of case law that can be cited in the future, serving to intensify the pressure and scrutiny on policymakers to ensure that their climate action plans are robust and actually implementable” Mr White pointed out.