Sue for the Climate: Will a Dutch Court Kickstart a Wave of Action?
In 2009, The Guardian published a cartoon depicting a tormented old man with a haggard-looking girl sitting on his lap, who asks him: “Grandpa, what did you do in the war against climate change?” One dad can reply, “Well, honey, I was the first to sue my government for it.” That might just qualify Roger Cox for coolest dad on the planet.
In 2011, the Dutch attorney and author of Revolution Justified published on why and how to sue the Dutch government for failing to combat climate change; a year later, the nonprofit Urgenda and 886 citizens said sure, let’s do that. The rest is for the history books—and June 24, 2015 will appear there in bold type.
If, on that day, the Dutch judge sides with the plaintiffs, it will set a global precedent. The ground upon which the case stands is international human rights law—and there’s plenty of fertile soil left for other flowers to blossom. A seed has already been planted in Belgium as well, where no less than 10,000 people (including this author) have just launched a court case against their government(s). I spoke with Roger Cox and Nic Balthazar, the driving forces behind the Dutch and Belgian climate court cases, respectively. What set them on such uncharted paths?
After reading An Inconvenient Truth in 2006, Roger started the Planetary Prosperity Foundation, which funded free screenings of Al Gore’s film for a full month in 20 different cities. But his actual job is going to court to seek justice. “I’ve been talking about it with my wife ever since 2006. By 2008 she was telling me I should put my thoughts on paper.” So that’s what Roger started to do in 2010—not coincidentally, just after the Copenhagen fiasco.
When asked if all his actions are strictly rational, he admits that both anger and love should take some credit. “Given the current state of the media, how the hell can we expect the majority of the population to understand that this is not about needing some sunscreen, but risks the very survival of our country and even humanity as a whole?”
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As a father, the love comes naturally. But being parents puts Roger and Nic in a position that requires a certain amount of schizophrenia. As Nic Balthazar told me, “We’ve decided to stop talking about climate change in our household—we don’t want to take away our children’s right to a carefree youth.” That’s difficult when you’re the most famous climate activist in your country. His 2008 short film The Big Ask, in which 6,000 people staged a spectacular climate action on the Flemish coast, helped to give global warming a far more prominent place in the Belgian public debate. In 2012, Nic organized the massive Sing for the Climate, documenting a chorus of 380,000 people across the country; that film made it all the way to the final plenary session at the UN climate conference in Doha, reminding negotiators of the deep well of support for a strong climate deal.
A year ago, Nic gathered a team of 11 celebrities under the banner of a new nonprofit called “The climate case,” which opened a new legal frontline in Belgium. “I would have liked to call us CAT: Climate Action Taskforce, after the nine lives that both the climate movement and cats have. But the name doesn’t matter, the point is that some friends and I put enough weight behind this to get headlines.” On the evening of the launch, they were not one or two talk shows—they were on all the talk shows. Government ministers scrambled to do damage control on live TV—almost begging to keep this debate out of the courts and throwing the hot potato back to civilians that “had to do their part.” That backfired. Most people are fed up of doing their part while watching their government try to pull a fast one—for example, by buying huge amounts of hot air (in the form of carbon credits) from India. “I know how the media works,” says Nic. “If the IPCC releases another report, it’s dull figures and some environmental journalist has to explain what the IPCC is again. But if you have a courtroom drama with celebrities suing the state—man, that’s like lighting a fire under all journalists’ asses.”
In Belgium, this drama is almost guaranteed to unfold in the courts—not least because of the nature of our country. The Belgian case, submitted on April 27th, was submitted not to one but to four governments. “Nobody is going to believe you but yes, in Belgium we have four governments in charge of climate change matters to varying degrees: one federal, three regional.” They have squabbled for over five years now about who should do how much—leading to total inaction on a target that was already far below what is needed.
Of course, it’s hard to find any country in the world with climate legislation in place that is in line with what the science requires. Somehow, governments have so far managed to get away with that. But the days of empty promises are over. In March, an international team of high-level judges, lawyers, and professors agreed on the Oslo Principles, which give legal backing to anyone suing the state for failing to implement robust climate change policies: “While all people…share the moral duty to avert climate change, the primary legal responsibility rests with States and enterprises. All principles, laws, policies and practices…that may affect…the global climate must be based on scientific evidence.” That’s some very bad news—for nearly all governments and companies.
The Oslo principles don’t stay vague and woolly, either. Included in their long list of must-have policies, for example, are a crackdown on new coal plants, efficiency measures, and the “elimination of broad fossil-fuel subsidies, including tax exemptions for…air transportation.”
And the document adds: “To avoid sanctions, a State must show excessive hardship or extraordinary circumstances beyond the State’s control.” Well, good luck with that, if you’re the defense lawyer for a rich country. As it currently stands, perhaps Greece could make a reasonable case for excessive hardship. (That very same lawyer could also argue that Greece is no longer a state, but a colony governed by Brussels—but that’s another matter.) The bottom line: a very high profile legal team has just declared that governments need to act in accordance with climate science—or face sanctions. And a judge in The Netherlands is about to decide on the legal merits.
Needless to say, Roger Cox welcomed the Oslo Principles, and his team was quick to incorporate them into their arguments. The Dutch judge now has to decide whether the Netherlands is obliged to reduce emissions by 25% to 40% by 2020, as the IPCC says that all developed countries should do. How they achieve those reductions is not part of the case. “Of course I have my views on how to reduce emissions: doing it through nuclear energy or carbon capture is not the same as doing it with renewable energy,” Roger told me. “But those are political decisions and the court shouldn’t intervene in them. All it needs to do is hold the government accountable for its legal duties to protect citizens, based on various international human rights agreements that it ratified,” notably including the European Convention on Human Rights. (The Belgian case makes similar arguments.)
Asked what the implications for other countries could be, Roger says that his team is already in touch with colleagues in Australia, Brazil, Austria, England, Ireland, and Norway. All of them are closely watching the Dutch court.
Not that everything depends on the outcome on June 24. Appeals are likely, and a final ruling at the highest Dutch appeals court could take another five years. But Nic Balthazar says the Belgian case has already had a direct impact on the government: “We’re hearing from people inside the administration that they’re freaking out. Suddenly, they’ve realized that for every single decision they take today, a judge is going to ask questions in the near future. So when the Minister tells me on TV that they are doing enough already, I can reply: we’ll see what the judge says. So much for their smokescreens.”
During our conversation, Nic quoted Naomi Klein on the reality that we can no longer afford to be a pessimist. “The challenge is to get away from the guilty feelings that so often arise when you talk about climate change—and move the conversation to acting together and having fun while doing it. Climate activism should involve dancing and singing and a lot of fun, and if we’re going to court, it’s also gonna be with some ABBA music in the background.”
Nic’s next big project—aside from the climate case—is a follow-up of the hugely successful Sing for the Climate campaign, but this time on a global scale. In Belgium, no less than 380,000 people participated in a kind of huge, decentralized karaoke for climate action; the Prime Minister was forced to concede to Nic, in front of TV cameras, that his government would increase their level of ambition. That pledge may now come with judicial oversight, and Nic hopes to take the strategy global. “If the Ice Bucket challenge can go viral, what should stop us from having 200 million people singing for the climate and confront policymakers with that before they go to Paris? Let them make bold promises, and if they don’t do what the science tells them to do, sue them.”