Climate litigation drags the UK government to court

Recently, three UK students named Adetola Stephanie Onamade (23), Marina Tricks (20) and Jerry Amokwandoh (22), have sued the UK government for their action and/or inaction to effectively and convincingly act on the climate crisis. According to reports, the principal reason for this climate litigation is the belief that the UK government will not be able to meet the net zero goal by 2050 because the way the government has been supporting the carbon emitters of the economy, the figures can only be expected to rise. According to the students, a roadmap to reach this goal has not been sketched by the government and there remains a high possibility that they will fail to achieve the said target. Therefore, as Plan B (a legal charity) shall argue, this inability of the UK government to address the climate change is violating the students' human rights enshrined in the Human Rights Act 1998, particularly, the Students' rights to life, family life and the right not to be discriminated against, under articles 2, 8 and 14 of the Human Rights Act respectively.

This lawsuit has great similarity with the case Family Farmers and Greenpeace Germany v. Germany where three German families and Greenpeace brought a human rights lawsuit against the government for their inability to reduce GHG emissions by 40% (as promised). However, the court was hesitant to find that failure to meet such targets could constitute a breach of the human rights obligations.

Nevertheless, showing stark dissimilarity with the Farmers' case, young claimants of the case at hand, who come from regions such as Trinidad, Nigeria, and Ghana, are of the opinion that environmental harm is not shared equally by all countries and that, "Black, brown, indigenous communities are on the front end of this crisis." To a certain extent, these opinions and statements could not be truer because developed countries like the USA, who are responsible for almost 80% of global GHG emissions, are not being affected by climate change as much as the developing countries are being affected by the GHG emission that they were not even responsible for. Furthermore, on a number of occasions, developed countries like the UK have failed to honour their promise to cut down on shipments of plastic waste to developing countries indicating a lack of care for poorer countries and their environment (Karen McVeigh, The Guardian). Hence, it may be right to bring climate litigations as such, to hold those responsible for climate change accountable for their actions.

As of January 2020, 1,143 climate cases were filed in the USA, while 96 and 58 were filed in Australia and UK, respectively. While most claimants relied on constitutional and human rights laws to argue their cases, other cases fell under Private law, Company law-climate risk, and Planning and permitting. However, as much as these climate litigations are increasing every year, the success rate remains low. For example, Plan B, that argued a similar case in 2020 to prevent an extension of the Heathrow Airport, was unsuccessful. In that case, the Supreme Court was of the judgement that a third runway at the Heathrow would not be illegal, hence, planning permission could be sought.

Many would argue that the main reasons behind failure of such litigations are the lack of arguments delivered by the claimants to support their cases in court. However, it is felt that the main reason for such failures is the fact that courts may not be the right place to address climate change in the first place." Nevertheless, the landmark judgement given in the Urgenda case of the Netherlands in December 2019 gives some hope to those bringing climate litigations against governments as it "provides a clear path forward for concerned individuals in Europe – and around the world – to undertake climate litigation in order to protect human rights" (as per the United Nations (UN) High Commissioner for Human Rights, Michelle Bachelete). Particularly, this case has opened a new avenue whereby people have understood the use of multiple scientific reports and a science known as the Climate Attribution Science (CAS).

Essentially, CAS establishes the relationship between "anthropogenic emissions and specific extreme weather events". Therefore, development in this field will allow claimants to better identify and quantify the environmental impact of industrial projects, policies and laws. Furthermore, CAS can also be depended upon by people to show that not only can governments prevent climate change in their countries, but that the related extreme weather events can also be envisaged. This type of proof will become crucial in lawsuits arguing that corporations are failing to act in shareholders' best interests by failing to address the foreseeable threats imposed by the rising climate crisis.

Therefore, it may be safe to say that if Plan B can argue a clear case based on sufficient scientific reports and with reference to CAS, the students may successfully be able to sue the government for their negligence towards the current climate crisis. However, as mentioned earlier, previous records show that UK courts have always dismissed such climate litigations because according to them, UK has wide discretion to choose amongst the methods in which they wish to protect people's human rights.

Furthermore, replying to a pre-legal action letter delivered by the UK students, The Department for Business, Energy and Industrial Strategy has commented that such climate litigations are "pointless" because the UK government has in fact, published a roadmap to achieve the net zero goal by 2050 and is looking forward to publish a net zero strategy by November this year.

The writer is an LLM Graduate and a reviewer of the International and Comparative Law Journal.