A Human Rights Dimension in Climate Change Litigation

Climate change is a global problem, one that could significantly and irreversibly change life on the planet. Changes associated with climate change could bring down ecosystems and human communities alike. The impact of climate change – including temperature increases leading to heat-related deaths, increase of ground-level ozone (which is linked to adverse health impacts), disruption of the hydrological cycle, sea-level rise, and degradation of water and forest resources – is already being felt in the United States and across the world.

To make matters worse, the growing greenhouse gas (GHG) emissions – the result of massive use of fossil fuels and the primary driver for global warming – are only to exacerbate the problem in the future. As attention and research pointing to the human impact on the climate grew over the last few decades, the international community agreed to tackle this problem.  However, attempts to reduce GHG emissions and thus combat climate change proved to be a difficult task as the global climate governance was undermined by international political disagreements.

The regulatory void has given rise to litigation, which has taken many forms, including lawsuits challenging agency permits and rules, lawsuits against agency inaction with regard to GHG emissions, and lawsuits exploring the legal avenues offered by the common law or legislation related to endangered species and biodiversity. Some of these cases, for example, Massachusetts v. E.P.A (concerning the Agency’s power to regulate automobile GHG emissions, the first climate case to reach the US Supreme Court), or Kivalina v. ExxonMobil (concerning an Eskimo village in Alaska threatened by climate change impact and suing multiple oil, energy, and utility companies for damages) have attracted close attention of both the wider public and legal experts.

A recent trend in climate change litigation has seen the exploration of the human rights dimension in such claims, namely by invoking constitutional provisions and the public trust doctrine in support of the right to a clean and healthy atmosphere, free from carbon pollution. This approach, developed by University of Oregon law professor Mary Christina Wood and championed by non-profit Our Children’s Trust has led to a nationwide campaign known as atmospheric trust litigation, involving children-plaintiffs suing federal and state government over climate change inaction.

Litigation in Pennsylvania

The recent case in Pennsylvania Funk v. Wolf followed a path fairly similar to other climate change human rights cases belonging to the atmospheric trust litigation. A group of children sued various state officials and agencies, asking the court to declare the atmosphere a natural resource and claiming that by not regulating climate change properly the defendants violated common law public trust doctrine and the constitutional provision known as Environmental Rights Amendment, granting a right to natural resources for the benefit of present and future generations.

The defendants challenged plaintiffs’ standing and rejected their arguments that the Amendment compelled them to perform specific steps to address climate change. The court found in favor of plaintiffs’ standing, thus following a line of other cases where climate change-induced injuries and climate science were judicially recognized. However, it did not declare the Earth’s atmosphere a public trust natural resource, nor did it agree with the plaintiffs that the Amendment required from the defendants to take particular steps outlined by the plaintiffs, thus dismissing the case.

The case reveals the persisting limitations and inconsistencies in the judiciary’s approach to the problem of climate change that undermines the role of courts in protecting environmental rights. Practically, this means that the judiciary often bounces the problem back to the political branches. At the same time, the court’s assessment of the petitioners’ standing reflects the general trend of accepting the science of climate change and taking its impact on individuals and communities seriously. This is particularly significant, as courts both in the US and abroad gradually acknowledge the threat of climate change, not only to the present generation but also to future ones. Coupled with the first successful cases (for example Urgenda v. the Netherlands), the exploration of the human rights dimension in climate change litigation and the active involvement of the courts may become a game-changer. However, in the long run, action on a global scale is needed to actually make a difference and there are signs that this process is underway.

This study, Climate Change and the Constitutional Obligation to Protect Natural Resources: The Pennsylvania Atmospheric Trust Litigation was recently published by Samvel Varvaštian in the journal Climate Law.