Why Climate Action Through the Judicial Branch Makes an Impact
Part of the Climate Steps Politics page series.
Photo by Sebastien Pichler (@pichler_sebastien) on Unsplash
As the climate crisis becomes a growing issue around the world, the executive and legislative branches in various countries have constantly both refused and failed to act at the necessary scale. Many resolutions and plans to address the climate emergency have been created and signed by domestic governments and intergovernmental organizations, but countries have not been following through on these to fulfill their expected roles in ending the climate crisis. The judicial branch has thus become one of the final resorts left for citizens, making it a critical component in the fight to end climate change.
Individuals or groups of individuals can use the court system to help initiate the process to identify and investigate pressing and urgent climate issues related to current law. The court systems can also force governments to obey a law regarding climate change, thus playing a significant role in the impacts we can make in the climate crisis.
In the legislative and executive branches, the issue of climate change can often be undermined, derailed, and dismissed as false. The judicial branch and courts differ from those two spheres because issues must be discussed and resolved based on the letter of the law. Further, the issues are examined critically via various evidentiary standards and processes. Scientific data and research play a key role in courts, and they are an essential part of court action. Climate data has already been used to raise the alarm about the climate crisis, but this concern can often go further in the courts because the data provides empirical evidence and are difficult to refute.
Domestic and International Court Impact
Individual and collective legal action taken within domestic courts and against governments is crucial to addressing the climate emergency and related issues. Before we can take climate action in the courts, however, it is important to first look at the international legal system to better understand why the climate crisis has been so difficult to solve in the international arena and why legal action in national and local courts can make a more effective impact.
International law differs greatly from the domestic law of nations. There is a relatively flat or horizontal hierarchy in the international legal system, meaning no specific organization or state has true overarching power over other nations. Despite the idealistic ‘authority’ of intergovernmental and legal bodies such as the United Nations and its judicial components such as the International Court of Justice (ICJ) and the International Criminal Court (ICC), the international legal sphere lacks the power necessary to enforce or apply strong coercion as a part of maintaining international laws.
Many countries do sign international treaties and resolutions that require them to follow certain protocols, guidelines, or instructions. In fact, several of these exist regarding climate action, with the United Nations Framework Convention on Climate Change (UNFCCC) ratified in 1992 as an international climate initiative being the umbrella convention on climate change. Since then, many other treaties and conventions have been signed, such as the Kyoto Protocol and the Paris Agreement. However, countries’ governments have shown that they may not fulfill their promises outlined in resolutions such as these. And, because there exists no overarching authority or ‘global police force’, there is no true way to enforce the ‘legally’ binding rules of many climate action treaties. Aside from imposing sanctions, world superpowers and the United Nations are still not able to hold many other states accountable for their role in the climate emergency. It makes climate action a very difficult issue to pursue, reverse, and/or end in the international arena.
As a result, it has become necessary for citizens in various countries to take climate action themselves through collective legal action in courts within their own countries. This can result in compelling benefits. Not only does this action help counter the climate emergency within one’s own country, but it sets a standard and precedent for many other countries – especially in outlining and legally determining the significant, detrimental impacts on communities
– currently and over the long term These legal decisions show how vital it is that our governments respond effectively.
Climate Change Is A Human Rights Crisis. Climate action in domestic courts has become an increasingly common action to address the global climate emergency, with groups challenging governments and corporations for violation of their rights and liberties. Examples include Juliana v. The United States and La Rose et. al vs. Her Majesty the Queen. Many of the groups pursuing legal action have emphasized that climate change is a human rights crisis, with significant detrimental impacts on communities both currently and over the long term, and that it is important that our legal systems respond effectively.
To better understand how citizens can take legal climate action in their own countries, we first outline the various legal systems in Canada and America, and then steps to begin the legal process in these countries. We hope to expand to other countries in the future.
Canadian and American Legal Systems
There are some differences in how the Canadian and American court systems function. The main differences include the structure / purpose of the legal system, and how cases are reviewed.
- Both the United States and Canada have separate legislative and judicial branches. However, the U.S. has a federalist court system, set up so that state and federal cases can be handled separately. This protects the rights of states’ rights to manage their own affairs. Canada also has separated provincial/territorial courts to ensure ease of management of the country, as well as to protect citizens from the government.
- The American courts specifically focus on interpreting and protecting the Constitution, which includes the Bill of Rights that protects citizen rights. Canadian courts, however, are specifically entrusted to protect the liberties of citizens outlined in the Canadian Charter of Rights and Freedoms that is entrenched in the Canadian Constitution. This may offer more leeway in cases involving civil and human rights in Canadian courts.
- In Canada, juries are usually only used in select criminal cases. In America, juries are a common and integral part of both criminal and civil trials.
Diagrams adapted from FlippedTips (U.S. court system) and The Canadian Superior Court Judges Association (Canadian court system)
The diagrams of legal systems shown above demonstrate the different levels or units of courts that make up the U.S. and Canadians legal structures. However, despite these differences, the day-to-day dealings of most Canadian and American court units are similar. Both have separate regional or district courts and provincial or state courts, as well as an overarching federal court. Where an issue is brought to trial depends on the severity of the issue, as well as whether it is a civil or criminal matter. Almost all cases start in the local district trial courts, the lowest level of court. From there, judgements can be challenged and appealed to higher courts at the provincial/state and federal levels. The Supreme Court in both countries is the highest point of appeals. Once decisions on appeals are made in a Supreme Court, they become binding over the entire country as a ruling over the particular case.
Further, both legal systems operate primarily through English common law which uses the concept of stare decisis, or the precedent (i.e., using the decisions of past cases to help resolve similar ones). The exception is Quebec’s French civil law in Canada, which emphasizes contextualization and scholarly references in cases. Despite differing policies and laws in both nations, American and Canadian court cases, trials, and legal proceedings, as well as the implementation and examination of the law, happen similarly.
Taking Climate Action, especially in Canadian & American Courts
There are a variety of ways to begin court action regarding climate change. As mentioned, most judicial action begins at the lowest level and works up to higher courts, regardless of who or what one may be challenging (hopefully you will be the one leading or supporting the challenge).
Courts in Action – Florida Senate Bill 82: In 2019, the Florida Senate passed a new bill which no longer allowed municipal governments to regulate greenery and plants, including vegetable gardens on residential properties. After a Miami Shores couple was told to remove their vegetable garden, they had taken the case to the Florida Supreme Court, where they lost. A few months later however, Florida state lawmakers considered the case and passed new legislation to protect those who chose to grow their own food at home. This case is an example of climate action through lower courts and, although the legal system did not uphold citizens’ rights against government legislation in this particular case, the impact of the two people taken action yielded media attention and the attention of the legislature and still resulted in change. https://www.flsenate.gov/Session/Bill/2019/00082
The following steps on how to take climate action through courts applies to both Canada and the United States, as the course of action is generally similar. Resources relevant to each country are included.
So How Do You Get Started?
- Do your research.
Understand the implications of the specific issue that you are bringing forth. Climate change is an umbrella issue resulting from various, interconnected issues. Taking legal action against governments and the perpetrators of climate change also requires a level of understanding of the impacts of climate change, especially on communities, as mentioned earlier. The impacts of climate change involves many factors and damages that affect diverse groups and entities. The other thing you need to understand is the current law or lack of enforcement of a law that you are challenging.
Having a clear outline of the specific issue(s) you seek to address, the relevant implications, and additional details will help you further your goal before contacting a lawyer for taking legal action.
Utilize various databases and resources to access this information, such as:
Climate action organizations
- Climate Actions (U.S.) https://climateactionnetwork.ca/who-we-are/
- Climate Action Network (Canada): https://climateactionnetwork.ca/who-we-are/
- Climate Steps: https://climatesteps.org
Local climate action groups
- 350 Ottawa: http://350ottawa.org/climate-education/environmental-groups/
- 350 organizations in your area
- Climate Justice Alliance: https://climatejusticealliance.org/about/
- Ecojustice Canada: https://ecojustice.ca/
Scientific articles, research, and developments
- Climate Change Communication: https://www.climatechangecommunication.org/journal-articles/
- Nature.com: https://www.nature.com/nclimate/articles
- American Association for the Advancement of Science: https://www.aaas.org/news/aaas-climate-change-resources
A very interesting resource that outlines the various ways that climate change effects our communities and planet, as well as the potential legal recourse for these damages, is the Model Statute for Proceedings Challenging Government Failure to Act on Climate Change, which is An International Bar Association Climate Change Justice and Human Rights Task Force Report: https://www.ibanet.org/Climate-Change-Model-Statute.aspx.
Through this research, you may find someone already challenging the same law you are, and you may be able to support them instead, or join forces – which can make for a stronger case if done well.
2. Find a lawyer or legal professional
Without getting a degree in judicial law, it would be tricky to learn everything about a law that is necessary before going to court. Thus, before launching any legal action against another party, it is important to get the advice of legal professionals who can assist you in understanding the federal and state laws surrounding your issues, as well “sovereign immunity” clauses that protect certain groups in certain cases (e.g., governments are protected against some lawsuits). Lawyers and attorneys offer critical advice and consultation before and after any legal process begins, and they are instrumental in preparing for court, during the trial and in determining its outcome and its impact.
There are various organizations that assist with finding local legal aid for low-income individuals and other members of the public. Some well-known and reputable organizations include:
- Legal Services Corporation (LSC): https://www.lsc.gov/
- Pro Bono and Free Legal Help: https://www.americanbar.org/groups/legal_services/flh-home/flh-free-legal-help/
- LawHelp.org: https://www.lawhelp.org/
- Department of Justice Legal Aid Network: https://www.justice.gc.ca/eng/abt-apd/org.html
- Legal Aid Ontario (or, by province): https://www.legalaid.on.ca/
- Pro Bono Ontario: https://www.probonoontario.org/
These organizations can also discuss information on legal costs for your climate action lawsuit.
3. Choose who you will be taking legal action against.
Depending on the specific climate issue (and your lawyer’s advice), you can sue an individual, a group/organization/company, or the government. Climate action litigation in the United States and Canada usually has involved two kinds of lawsuits:
- Against the government: based on human rights, constitutional, legislative, and administrative issues or violations
- Against corporations: based on tort (loss or harm caused), fraud, ethics, and commercial or consumer issues
4. Consider – could my case be most effective as a class action?
Once you are able to connect with a legal professional, they will assist you in navigating your case, and offer legal advice on the process. But here are some initial definitions, potential routes to explore with your lawyer. (Note: See our Climate Steps Disclaimer below – we are not law experts or legal counsel; we’re just here to help you initially explore the subject so you can understand the climate action you could potentially take with the proper legal counsel.)
Class action lawsuits often can be more beneficial and effective for issues that affect a large portion or entirety of a population, as is often the case with climate change. Class action lawsuits allow hundreds, or even thousands, of individuals who are suffering from damage or harm to join together and take action against another individual or group.
Class action lawsuits can be filed by just a few individuals or by a small group as well, as long as they share the damage or harm for which they are taking legal action. Furthermore, class actions generally cost less than individual lawsuits.
5. With your lawyer, choose how you will be taking legal action.
There are a variety of ways to taking legal actions within or outside of a class action lawsuit, and they often depend on the issue at hand. With respect to climate action in court, the main climate action lawsuits have included:
- Suing for Negligence
Taking legal action against a company or government due to serious personal or property damage caused by neglect and/or by environmental justice issues, climate change, and the actions of the entity in relation to climate change.
- Civil Rights Case
Taking legal action against the government for violating or for not protecting your rights as a citizen, in relation to climate change. Juliana v. United States is an example of this.
- Necessity Defense Cases
Taking action to defend yourself or a group in court or to begin a legal process because of a lack of or ineffective government action that led to damage and/or civil disobedience in regard to climate change. Lawyers in the past have used this argument and, in a few instances (such as in the State of Washington v Kenneth A. Ward), have actually won.
These cases are described in more detail in the last section.
Working with a lawyer or legal professional will aid in better understanding how best to present your climate action case.
6. Beginning the legal process
Your lawyer will advise you on the various steps that are specific to your locality, issue, and case, and that will offer the most useful and correct information. Again, unless it is a very serious issue, court actions almost always begin at the lower levels, but you will have a chance to appeal your decision to higher courts if necessary.
One of the first main steps is to create a Claim Report and/or File a Lawsuit. Your lawyer will guide you on how to complete this process. This is a necessary step in the process, and it requires you to identify the various issues at hand, as well as to gather the relevant policies and laws to make your claim(s). Once the required information is submitted, it will go under review as you continue to work with your lawyer until it is approved and ready to be addressed. Here are some helpful resources on Claim Reports and Getting Started:
- Canada: https://nelliganlaw.ca/class-actions/
- United States: https://www.courts.ca.gov/9616.htm?rdeLocaleAttr=en
Examples of Climate Action Court Cases
With the climate crisis growing in severity day by day, court action to address the climate emergency is an emerging new strategy for many activists and climate action groups. Hundreds of cases have been filed and launched by various groups and non-governmental organizations (NGOs) to assert and protect fundamental human rights and liberties. Two main aims of many cases include protecting communities that are suffering from the climate crisis and holding governments and corporations responsible for their role, or lack of one, in climate change. Some notable examples of climate action court cases include:
- United States of America: Juliana v. United States
Juliana v. United States was a climate action lawsuit launched by a group of twenty-one children under 18 within the United States. The lawsuit, backed by various non-profit organizations and entities, accused the U.S. federal government of infringing on the children’s constitutional rights to liberty and freedom by continuing to engage in or facilitate activities with greenhouse gas emissions. The case was brought before (which court) in 2016, with the latest development being dismissal by the U.S. Supreme Court in 2020. Although dismissed, the media impact was huge globally.
- Canada: La Rose et al. vs. Her Majesty the Queen
La Rose et al. vs. Her Majesty the Queen is a 2019 climate action litigation launched in Canada by fifteen plaintiffs ranging from 10 to 19 years old. The youth are suing the Canadian government under the claim that the government’s actions are violating Section 7 of the Canadian Charter of Rights and Freedoms, by failing to protect the liberty and security of citizens, as well as public resources. The case also alleges that Section 15 of the Charter regarding equality rights is being denied to youth in the future because of the Canadian government’s choices during the climate emergency. The lawsuit is backed by the David Suzuki Foundation and is currently ongoing.
- The Netherlands: Urgenda Foundation v. The Government of the Netherlands.
An organization of over 900 Dutch citizens launched a lawsuit against the Government of the Netherlands to pressure them to do more to fight the growing climate crisis and to reduce overall greenhouse gas emissions in the country. Despite several appeals and dismissals, this climate action case was one of the very first of its kind, and it has set a precedent for many others, as mentioned earlier, introducing the legally new ideas of human rights into the climate crisis.
- United States: State of Washington v. Kenneth A. Ward
In 2016, Ken Ward, and a group known as the “Valve Turners” were charged with various crimes such as burglary and criminal sabotage, as well as shutting down the Kinder Morgan Trans Mountain tar sand pipeline. In a case against Ken Ward by the Washington State government, each of the Valve Turners presented a necessity defense in which they argued that their crimes were necessary to minimize greater harms: the climate crisis and threat of fossil fuels to the planet. The necessity defense was allowed in lower court, and when appealed by Washing Sate Court prosecution, the Washington Supreme Court denied review of the ruling, allowing Ken to present it. The ruling was a major victory for climate activists, and has potential to set a critical precedent for future climate litigation.
- The Norton Rose Fulbright Foundation
This organization provides a list of retroactive and ongoing climate action litigation, as well as useful information on the success and failure of various cases that may be helpful in launching others.
Ms. Azka Naz lead the writing of this section (2020). Azka is a sophomore studying Public Affairs and Policy Management at Carleton University. She is specializing in international policy studies, with a focus on international relations and conflict. She is interested in defense, development, public health, pharmaceuticals, and international law. She believes that the climate emergency is interconnected with all of these areas, and is a growing and very relevant issue to the overall global policy sphere.