Landmark Dutch Climate Lawsuit Puts Governments Around the World on Notice

World governments trying to decide who should fix the climate first

by Gaius Publius

It's been obvious for a while that the only real action to reduce carbon emissions — which are the byproduct of a drive for profit, don't forget, and nothing else — is going to come from force. In the current world, that force is coming on three fronts:

• Climate marches and demonstrations
   
• Increasing pressure for universities and large pension funds to divest of all carbon stocks
   
• Lawsuits

Yes, actual lawsuits — using the courts to rule against defendants, often governments, and force redress of damage done. In the case of these lawsuits, the plaintiffs typically allege that governments failed in their responsibility to protect an environment — including a temperature environment — necessary to the welfare of their citizens, who are or will be suffering harm.

Such a lawsuit, for example, is going on in Oregon right now. I originally reported on that in 2014:

Climate win: Appeals court in Oregon rules state court must decide if atmosphere is a “public trust”

Two teenagers from Eugene, Ore. filed suit against Governor Kitzhaber and the State of Oregon for failing to protect the “atmosphere, state waters, and coast lines, as required under the public trust doctrine.”

They lost the first round, where the state court said that climate relief was not a judicial matter. But they won on appeal. The case goes back to the original court, which now has orders to decide the case on its merits and not defer to the executive or legislature.

The gist of the appeals court decision:

Their lawsuit asked the State to take action in restoring the atmosphere to 350 ppm of CO2 by the end of the century. The Oregon Court of Appeals rejected the defenses raised by the State, finding that the youth could obtain meaningful judicial relief in this case.

That’s quite a nice victory.

This case is still working its way through the courts, and the prognosis is a good one. More on that later. Our present story is in the Netherlands, where the same sort of lawsuit is having quite an effect. If the Dutch government loses, it will set quite a precedent:

Landmark Dutch Climate Lawsuit Puts Governments Around the World on Notice

Since the days of Watergate, the question "What did he know, and when did he know it?" has been a key litmus test for assessing guilt and innocence. Forty years later that question is now being asked in relation to climate change.

Where I live, in the Netherlands, a landmark case will be heard in the Den Haag District Court on Tuesday. The Urgenda Foundation is suing the Dutch government for knowingly endangering its citizens by failing to prevent dangerous climate change.

It comes at a time when an increasing number of legal experts around the world have come to believe that the lack of action represents a gross violation of the rights of those who will suffer the consequences. They also argue that the failure of governments to negotiate international agreements does not absolve them of their legal obligation to do their share in preventing dangerous climate change. These arguments are at the core of the Dutch lawsuit and will undoubtedly be put to the test in other countries before too long.

Note the word "knowingly." The lawsuit hinges, in part, on the fact (yes, fact) that governments around the world knew about the danger of burning coal and oil as far back as the Walter Cronkite era, and certainly as far back as the beginning as the start of the IPCC.

It's arguable that government leaders were made fully aware of the dangers of climate change when Walter Cronkite warned the public in 1980 that "a coal-burning society may be making things hot for itself." He was introducing a news segment covering the greenhouse effect, including a Senate hearing in which Massachusetts Senator Paul Tsongas quipped:

If it happens, it means goodbye, Miami; goodbye, Corpus Christi; goodbye, Sacramento; goodbye, Boston (which obviously is much more of a concern); goodbye, New Orleans; goodbye, Charleston, Savannah and Norfolk. On the positive side, it means we could enjoy boating at the foot of the Capitol and fishing on the South Lawn.

Eight years later Margaret Thatcher said much the same [thing.]

The existence of the IPCC itself, and its cousin, the treaty-making FCCC (Framework Convention on Climate Change), both parts of the U.N., are (damning) admissions by world governments that there's a problem. Saying "You first, Alphonse. No, you first, Gaston" is not a solution, but an excuse. The Dutch lawsuit seeks to break that logjam by assigning blame for inaction on the part of the Dutch government and seeking redress of damages.

The Dutch case became even more significant last week as a result of the launch of the so-called Oslo principles by some of the world's leading jurists, including legal scholars and High Court judges. As lawyers Julia Powles and Tessa Khan explain on TheGuardian.com:

What the Oslo principles offer is a solution to our infuriating impasse in which governments -- especially those from developed nations, responsible for 70% of the world's emissions between 1890 and 2007 -- are in effect saying: "We all agree that something needs to be done, but we cannot agree on who has to do what and how much. In the absence of any such agreement, we have no obligation to do anything." The Oslo principles bring a battery of legal arguments to dispute and disarm that second claim. In essence, the working group asserts that governments are violating their legal duties if they each act in a way that, collectively, is known to lead to grave harms.

This lawsuit has many proponents, including citizens who have joined it (read the article for the full details). It's also sparked similar efforts elsewhere, for example, in Belgium. This can only spread, and can only be good. As the writer Masaccio recently noted:

We already have a method for organizing ourselves other than the market. It’s called government. The theory was was that the majority of voters would run government, but the “marketplace of ideas” has been overwhelmed by huge piles of money devoted to obfuscation and lies and clutter that makes it impossible to think rationally, and power is controlled by the people we want government to control. But when it comes to planning for a future, government is the only way non-rich people can play a part in deciding whether or how to prevent the disasters staring us in the face[.]

We have the agent, government, and we have the will to act — people are increasingly desperate for real climate solutions. What's left to do is simple — force the agent to act. As I've written many times, the day will come when the people will demand — Depression-style, WWII-style — that government act, and it will. In the meantime, there's nothing like the long arm of the law to bring malefactors to their knees. That's, in fact, why god made the courts in the first place.

What they said just prior to arrest (source)

More as this evolves, including on that lawsuit in Oregon.

GP