Nature Has a Right to a Stable Climate System: Lessons from the Climate Change Youth Lawsuits
“YOUTH_v_GOV_IMG_1707-1” by Peg Hunter is licensed under CC BY-NC 2.0
By Ella Johnson
Introduction from Earth Law Center:
Within the past three centuries, the definition of what a “right” is and to whom it is owed has shifted. Rights that we take for granted today—such as the right to vote, bodily autonomy and freedom from discrimination—were previously unrecognized or even seen as fringe beliefs in the not so distant past. In this week’s blog, Ella Johnson argues that the impeding climate catastrophe of global warming will lead to greater acceptance of a new right, the right to a stable climate. This right is urgently needed for both humans and all other life on Earth. The legal movement to recognize the right to a stable climate has had some success, as well as some disappointing setbacks, but the author argues that coalition building between various youth and environmental groups and Rights of Nature-centered initiatives could be more effective in swaying public opinion and spurring future action.
The Current Climate Crisis
Scientific evidence overwhelmingly indicates that climate change poses an existential threat to humanity. With 1°C of warming already reached since preindustrial times, we face an increase in severe droughts, heatwaves, wildfires, and other extreme weather events; 250,000 human deaths per year (and rising); and nearly 1 in 6 species at risk of extinction.
If things do not change soon, the situation will only get worse. Governments are failing to meet their current commitments under the Paris Agreement (the most recent international climate treaty). Even if governments met all of the commitments in the treaty, the world would warm to 2.8°C by 2100 according to the Climate Action Tracker, a scientific analysis by Climate Analytics and New Climate Institute that tracks climate pledges and climate action by nations.
The international community has been trying to solve this problem for over four decades. If we are going to succeed, we need a new approach.
Youth Climate Change Lawsuits
A lack of governmental regulation of carbon emissions threatens the liberty of billions of the worlds inhabitants to breathe clean air, drink clean water and be free from the fear of climate catastrophe and the loss of home and livelihood that that would bring. It also threatens the very existence of countless animal species and ecosystems.
Young people, who have never known a time when climate change was not widely understood to be a serious threat, have become some of the most vocal and passionate advocates for climate justice. However, their advocacy has not borne out their minimum and reasonable demands for reduced carbon emissions and the hope of a future without fear of climate instability.
One avenue that youth advocates have taken in response to the failures of their government to guarantee climate justice is to act as the role of plaintiff and sue their government for depriving them of their right to a healthy climate. The young plaintiffs in these cases are typically tasked with proving two basic argument: first, that the government is culpable in contributing to climate change by failing to act to curb carbon emissions, and second, that this negligence violates the plaintiffs human rights—mainly the right that the youth and all future generations have to inherit a healthy and habitable climate.
While giving their testimony in these lawsuits, youth advocates have aimed to show the damages they have suffered as a result of unchecked emissions. They have described the destruction of their family’s homes in climate change spurred disasters, decreased production on their family’s farms, loss of forests that they depend on for cultural traditions, and a loss of freshwater that they need for drinking, hygiene, and recreation. The testimonials of these youth advocates emphasize that climate change impacts every aspect of our lives as human beings and the right to a stable climate is a prerequisite to every other guaranteed right.
Juliana et al. vs USA et al.: A Youth Climate Change Lawsuit
One of these youth lawsuits, Juliana et al. vs. USA et al. (2015, has become a landmark case on the subject of climate stability rights. The petitioners in Juliana are 21 young persons, the nonprofit Earth Guardians, and all “future generations” as represented by former NASA scientist and climate activist James Hansen. In the suit, the plaintiffs claim that the U.S. government is depriving them of life, liberty and property by sanctioning fossil fuel emissions and thus allowing for climate change to accelerate.
Juliana worked its way through the court system and received media coverage from high profile news outlets like the New Yorker, who wrote that the “right to a stable climate is the constitutional question of the twenty-first century.” The lawsuit received notable media attention again in 2016 when Judge Aiken of the U.S. district court of Oregon refused to dismiss it, stating that a clean environment is a fundamental right.
In 2020, five years after the lawsuit began, the case was dismissed by the Ninth Circuit Court of Appeals in a close 2-1 decision. Writing for the majority, Judge Hurwitz argued that the remedies that the suit would necessitate—wide-reaching policy changes—went beyond the court’s jurisdiction.
What is interesting about the Juliana case, is that the court did not dispute the plaintiffs’ claims of harm, nor that the government was responsible for them. However, they also did not see the case as a matter of “rights,” and thus were not emboldened to rule in favor of the plaintiffs. If they had seen the case as a matter of human rights, then policy changes (which are always outside the jurisdiction of the court) would have been no obstacle. An example of the court choosing to protect human rights despite not being able to control policy implementation can be found in Brown vs. Board of Education, where the court ordered schools to integrate without concerning themselves with the policy specifics on the ground. This comparison, between Brown vs Board of Education and Juliana was made by Judge Staton in her famous dissent of the court’s opinion, where she states with some sarcasm, "my colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.”
Turning back to climate change litigation, a similar approach to Brown vs. Board of Education was taken in 2019 Urgenda case in the Netherlands. Here, similar to the Ninth Circuit Court of Appeals in Julianna, the Dutch Supreme Court did not want to overstep its authority and infringe upon the powers of the other branches of government. However, the Dutch Supreme Court found that it could still order emissions reductions (a human rights issue) so long as the other branches of governments could determine the means of making those reductions (a policy-making issue).
Extending Rights to Nature
Our current legal system has proved insufficient in assuring the right to climate stability. The Rights of Nature movement can provide an alternative to our current legal system and reshape the way we think about the environment and our right to climate stability.
The Rights of Nature framework is a school of thought that conceives of animals, plants, and ecosystems as living beings with rights of their own to exist, rather than as property. The Rights of Nature framework emphasizes that humans are a part of these systems and that our health is dependent upon Nature’s. One of the principles of the Rights of Nature framework is that nature should be allowed direct legal representation in court and other legal processes.
The Rights of Nature movement challenges key assumptions that our current legal frameworks make, including that only human needs and desires should be taken into account when making decisions. Instead, the Rights of Nature movement considers the right of all living beings to exist. As Earth Jurisprudence scholar Thomas Berry states: “human rights do not cancel out the rights of other modes of being to exist in their natural state.”
The Rights of Nature movement emphasizes the importance of ecosystems, or the interconnected survival of all species in concert. This understanding of ecosystems shows that the choice between immediate human needs and climate stability is a false one, as meeting any immediate human need that threatens the climate will make it impossible to meet human needs in the future. Therefore, the choice between profit and health is no choice at all.
Applying a Rights of Nature Framework to Climate Advocacy
A Rights of Nature framework fits naturally within the climate justice movement. One of the only differences between the two is that while the Climate Justice movement has thus far advocated for climate stability on the basis that it is a human right, the Rights of Nature movement advocates for the right of all living beings and their environment by proxy.
This theory of rights as being for all living entities provides many benefits. It forces us to reconcile the rights of our environment with our immediate desires. It also asks us to consume with care so that Earth’s ecosystems can thrive and are still available for future generations. Finally, through enforceable rights-based standards, it ensures that humans live within Nature’s limits not just for our own benefit, but for the benefit of all life. The application of the Rights of Nature framework, which justifies long-lasting environmental and human stability over profit, can help Climate Justice leaders in their work and advocacy by integrating a new voice into the debate: that of Nature itself.
Aerial view of the Amazon Rainforest from Wikimedia Commons licensed under CC BY-SA 2.0
Successes and Setbacks within the Colombia Youth Climate Lawsuits
Around the same time that the Juliana case was introduced, another youth lawsuit was being filed in Colombia. This lawsuit, which drew comparisons to Juliana, was filed by 25 young people with the support of Dejusticia, a Colombia-based research and advocacy organization. In the lawsuit, the plaintiffs claim that both the deforestation of the Amazon and the impacts of climate change impede on their rights to a healthy environment, life, health, food and water. In Colombia, deforestation of the Amazon is the main source of carbon emissions, generating approximately 180 million tons of carbon per year.
The Supreme Court of Justice agreed with the youth. The court granted the youths’ petition and ordered the government to halt deforestation and adjust existing land management plans with an eye toward climate change mitigation and adaptation. Furthermore, the court also recognized the Colombian Amazon forest as a legal entity which the government has a duty to protect, conserve, maintain, and restore. This was a win for climate activists and proof that Rights of Nature can win in major courts and are supportive of other climate justice movements.
However, it is important to note that even with the positive ruling, government action in response to the youths’ demands has been slow to materialize. In 2019, Dejustica reported in a press release that the 25 youth plaintiffs would return to the court to seek a declaration that the government and other defendants have failed to fulfill the four orders the Supreme Court of Justice mandated. As of 2019, Dejustica claims that “the government’s proposed development plan has no commitment to reduce forest loss. On the contrary, the plan’s deforestation goals would allow approximately 800,000 hectares of forests to be cut down in the next four years.”
No More Loose and Incentive-based Commitments: Rights of Nature in Practice
As the youth lawsuits demonstrate, current climate change solutions are failing. Commitments to greenhouse gas emissions reductions are insufficient.
Other popular solutions such as REDD and geoengineering have major flaws and are incompatible with the Rights of Nature. REDD, led by the United Nations and others, seeks to reduce emissions from deforestation and forest degradation in developing countries by allowing rich countries to continue to pollute if they pay developing countries to preserve their forests. Keeping existing forests around will not be enough to stop climate change if emissions by wealthy countries are not stopped, as well. Nor will geoengineering solutions that pull carbon out of the atmosphere make it safe to keep emitting, because the technology needed to pull carbon out of the atmosphere is not yet proven and may never be feasible at the scale required to slow climate change.
The technology needed to create renewable energy from a variety of sources does exist, however. Though it will take time to transition our energy grid, we are ready to drastically slash emissions. If a Rights of Nature framework were implemented in climate change decision-making, “false solutions” such as REDD and geoengineering would be disregarded, as Rights of Nature requires us to address climate change at its source.
What does Nature’s right to a stable climate look like in practice? Consider the follow tenets:
1. There is no “right to pollute” carbon, including by developed countries who can afford carbon credits. All countries must make necessary reductions to their emissions, with developed nations providing significant financial support to help developing countries do so.
2. Countries are legally bound to rapid de-carbonization to achieve net-zero then net-negative emissions in the near future, limiting near-term temperature increases to well below 1.5 degrees Celsius above pre-industrial levels and then fully stabilizing the climate system.
3. Ecosystems have a “seat at the table,” both internationally during climate change negotiations as well as within domestic legal processes. Nature may become an official party to climate change agreements if it wishes to do so.
4. The global community commits to economic systems change by challenging overarching models of production and consumption, fully de-carbonizing in the near-future, achieving zero conversion of natural forests and supporting community forest management, living well within all planetary boundaries, and empowering Indigenous communities to serve as stewards of all ancestral lands.
5. The Rights of Nature is recognized globally and is legally enforceable as a fundamental right. Nature’s right to a stable climate in particular is recognized and put into practice through enforceable climate change action plans.
Earth Law Center Advocates for Rights to a Stable Climate
Given the need for change in our decision making about the environment and the potential of a partnership between climate justice and Rights of Nature, ELC is launching a new “Right to a Stable Climate” initiative. The initiative will build on the work done by the climate justice movement through youth lawsuits to prioritize the human right to a stable climate by fighting for the right to a stable climate for all living entities. To accomplish this goal, ELC will partner with organizations and communities internationally to transform our law.
This initiative focuses particularly on assisting island nations and their communities, who are disproportionately affected by climate change and are some of the strongest proponents of climate action. Island nations represent just 5.3% of Earth’s land area yet are home to 19% of bird species and 17% of flowering plants. They are highly vulnerable to threats posed by climate change, including sea level rise, salinization of freshwater sources, and damage to coral reefs from ocean warming and acidification. Establishing the Nature’s right to a stable climate for island nations (or any other countries) can help permanently protects nature in the face of climate change and provides a platform for conservation partnerships.
Stay tuned for the next blog in this series to delve into this initiative further.