Download Access to justice in climate change litigation from transnational

Access to Justice in Climate
Change Litigation from
Transnational Perspective: The
Standing of Private Persons and
NGOs in Recent Climate Cases
Samvel Varvaštian
Annual EELF Conference, 14-16 September
2016, Wrocław, Poland
Issues to be discussed

Climate change litigation and standing: a
general overview

Challenges

Jurisdictions

Application
Climate change litigation

Air quality

Environmental impact assessment

Endangered species

Emissions trading

Human rights

Etc.
The comparative “mass” of climate
change litigation
Litigation outside the US
Litigation in the US
Climate change litigation: the US
Cases, which involve
the issue of standing
to bring climate
change challenges
mainly concern...


Climate change
impact assessment
Regulation of GHG
emissions under the
air quality legislation
Standing

In essence, standing
involves the identification of
a person entitled to invoke
the jurisdiction of a court
(Land and Environment
Court of New South Wales,
Australia, Haughton v.
Minister for Department of
Planning and Ors, 2011)
Standing

Standing depends on whether a party has a
sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that
controversy, and serves to ensure that legal
questions presented to the court will be
resolved in a concrete factual context conducive
to a realistic appreciation of the consequences
of judicial action (US Court of Appeals for the
Ninth Circuit, Native Village of Kivalina v.
ExxonMobil Corp, concurring opinion, 2013)
2 major challenges to the standing
doctrine


Global environmental problems,
such as global warming, affect
the public generally but it is
difficult to assess the specific
harm to an individual
person/NGO
(Quasi)local environmental
problems, such as contamination
of a human uninhabited location,
(e.g. the Arctic) in which no
individual has a sufficient direct
interest
Standing in the US
Addressed by the US Supreme Court, which
articulated a three-element “irreducible
constitutional minimum of standing” in case
Lujan v. Defenders of Wildlife (the Lujan
test) (1992):

Injury in fact

Causation

Redressability
Standing in the US: climate change
impact assessment
Center for Biological Diversity v. Department of
Interior, (Court of Appeals for the District of
Columbia Circuit, 2009), Amigos Bravos v.
Bureau of Land Management (District Court of
New Mexico, 2011)

Cases arising under the environmental impact
assessment legislation because the impacts of
climate change were not properly considered in
the relevant governmental decisions (e.g.
permits for building power plants, etc.)
Standing in the US: climate change
impact assessment


Standing is denied because the alleged failure
to consider the impact of climate change can
not be traced to plaintiff's injury
“The alleged impact of climate change is remote
and shared by humanity at large”
Standing in the US: climate change
impact assessment

However, if plaintiffs can demonstrate that the
consideration of climate change would affect
the decision that harms their interests (e.g.
recreational, etc.), even if the harm is not
connected to climate change, standing may be
granted (WildEarth Guardians v. Jewell, Court
of Appeals for the District of Columbia Circuit,
2013)
Standing in the US: climate change
impact assessment

Further expansion of standing: geographic
proximity of plaintiffs to the pollution site is not
critical, thus plaintiffs from Texas, Florida,
California, etc. may challenge the relevant
decision in Wyoming (WildEarth Guardians v.
U.S. Forest Service, District Court of Wyoming,
2015)
Standing in the US: regulating GHG
emissions
Communities for a Better Environment v. EPA
(Court of Appeals for the District of Columbia
Circuit, 2014), Washington Environmental
Council v. Bellon (Court of Appeals for the Ninth
Circuit, 2014)

Cases arising from (failed) regulation of GHG
emissions under air quality legislation
Standing in the US: regulating GHG
emissions

Standing is denied because the connection
between specific GHG emissions/their
contribution to the global totals and climate
change is uncertain
Standing in the US: regulating GHG
emissions

“Many independent sources of GHG emissions,
which contribute to climate change (injuries)
together”, “emissions in New Jersey may
contribute no more to flooding in New York than
emissions in China”, “causal link is too
uncertain”, “GHG emissions from a particular
source/subject are only 0.000x%, thus too
negligible to consider”, etc.
Standing in the US: regulating GHG
emissions


BUT! such an approach contradicts the
Supreme Court's decision in Massachusetts v.
EPA
The Supreme Court in Massachusetts v. EPA:
no matter who contributes and how much – a
contribution is a contribution and it should be
addressed in order to tackle the global problem;
otherwise nobody would take any measures at
all
Standing in the US: exception

“Special” case – Massachusetts v. EPA (2007)
(the US Supreme Court: the plaintiff is a State
and the case concerns sovereign regulatory
interest – an injury to state lawmaking or
regulatory capabilities – thus, standing is
relaxed)
Standing in the US: exception

The importance of Massachusetts to standing in
other cases: recognizing the science of climate
change (the causal link between GHG emissions
and climate change, the impact of climate
change on the environment)
Standing in the US: claims for
damages

Comer v. Murphy Oil USA, Inc: According to the
plaintiffs, fossil fuel companies' GHG emissions
contributed to the ferocity of Hurricane Katrina,
which caused damage to their property
Standing in the US: claims for
damages
Comer v. Murphy Oil USA, Inc:


The Court of Appeals for the Fifth Circuit (2009):
plaintiffs have standing (all three elements are
satisfied)
A federal district court in Mississippi on refile
(2012): the plaintiffs lack standing because their
claims are not fairly traceable to the companies’
conduct
Standing in the US: a developing
trend



Cases arising from government's constitutional
obligations/common law public trust doctrine
(atmospheric trust litigation)
Standing usually granted (all elements satisfied)
Denying standing to “persons who are in fact
injured simply because many others are also
injured, would mean that the most injurious and
widespread Government actions could be
questioned by nobody”. This is unacceptable.
Standing in Australia
Haughton v. Minister for Department of Planning
and Ors (Land and Environment Court of New
South Wales, 2011); Dual Gas Pty Ltd & Ors v
Environment Protection Authority (Victoria Civil
and Administrative Court, 2012)

Cases arising from challenges to project
permits under environmental impact
assessment legislation
Standing in Australia


Standing is granted to persons “whose interests
are affected”. Interests may be of any kind, not
only proprietary, economic or financial (thus
environmental, aesthetic, cultural, etc.)
Standing depends on whether the person's
interests are directly or indirectly affected by the
decision and whether or not any other person's
interests are also affected by the decision
Standing in Australia

Interests of persons and NGOs: scientific
knowledge and concern over the issue,
intellectual and occupational involvement in
health/environmental affairs, financial support
from the government (NGOs),
national/international recognition (NGOs),
participation in the related work (NGOs), goals
and objectives of NGOs, etc.
Standing in the Netherlands
Urgenda v. the Netherlands (The Hague District
Court, 2015)

The Dutch Civil Code, Book 3, Section 303:
individuals/legal persons are only entitled to bring
an action to the civil court if they have sufficient
own, personal interest in the claim. A foundation
or association with full legal capacity may also
bring an action to the court pertaining to the
protection of general interests or the collective
interests of other persons, in so far as the
foundation or association represents these
general or collective interests based on the
objectives formulated in its by-laws.
Standing in the Netherlands

The Court: Urgenda’s by-laws stipulate that it
strives for a more sustainable society, “beginning
in the Netherlands”. As the term “sustainable
society” has an inherent international and global
dimension, Urgenda's interest is not limited to
Dutch territory. Therefore, it can base its claims
on the fact that the Dutch emissions also have
consequences for persons outside the Dutch
national borders, since these claims are directed
at such emissions.
Standing in the Netherlands

The Court: The term “sustainable society” also
has an intergenerational dimension. In
defending the right of not just the current but
also the future generations to availability of
natural resources and a safe and healthy living
environment, Urgenda strives for the interest of
a sustainable society.
Concluding remarks



The standing doctrine in the US has been
extensively applied and has been a traditional
challenge to standing in climate cases, although
there are signs of liberalization
The courts' assessment of standing may not
always be consistent
Plaintiffs (may) face similar challenges to
standing in different jurisdictions; these
challenges may be similar to other
environmental cases, but suing for climate
change presents a particularly difficult task