This article is taken from the May 2021 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

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One of the few legal concepts I remember from my student days half a century ago is remoteness of damage. To take a simple example, if you run Germany’s largest electricity generator you might expect people to accuse you of contributing to global warming by pumping out greenhouse gases. But you wouldn’t expect to be sued by a Peruvian farmer whose home town in the Andes is at risk of being flooded by melting mountain glaciers. 

And yet that’s exactly what is happening. In response, the electricity producer, RWE, argues that there is no chain of causation: other factors contribute to climate change and the Peruvian Andes are simply too remote. But what appears at first glance to be an outlandish claim is being taken seriously by judges in Germany, where Saúl Luciano Lliuya, the farmer, launched his legal action with the support of environmental campaigners. When circumstances permit, judges — accompanied by lawyers and expert witnesses — hope to visit the Andes and take evidence.

In Switzerland, a group of women in their mid-70s and older have launched a claim against the government. The KlimaSeniorinnen, as they are called, argue that women in their demographic group are particularly vulnerable to climate-induced heatwaves resulting from Switzerland’s failure to reduce carbon dioxide emissions.

Their claim was dismissed by the Swiss courts. Last November, though, they complained to the European Court of Human Rights, which has asked the Swiss government for a written response by mid-July. Only a small proportion of cases get this far.

If you think these lawsuits sound a bit far-fetched, look at what happened in the Netherlands

Like national courts around the world, human rights judges are taking climate change claims very seriously. The first was lodged at Strasbourg last September by six Portuguese children and young adults. They argue that 33 European countries, including the UK, have failed to reduce their greenhouse gas emissions in accordance with international agreements. The claimants’ British lawyers persuaded the court to fast-track the case and preliminary objections by the European states have already been thrown out.

These cases could be heard together at some future date, perhaps by the court’s grand chamber if human rights judges are thinking of developing the law. But claimants face a number of hurdles. For one thing, the European convention — which was drafted more than 70 years ago — makes no mention of climate change. 

However, the claimants are hoping to rely on article 2 of the convention, which protects the right to life, together with article 8 which — subject to exceptions — requires respect for family life. They hope the court will find that these rights impose positive obligations on states — for example, to limit global warming in line with agreed targets.

Judge Eicke, the British member of the Strasbourg court, told me of another difficulty facing climate campaigners: human rights law has always focused on claims by individual victims. “The breach has to be one which threatens them individually, specifically, and creates a serious and imminent risk for them,” he said in an interview for the BBC’s Law in Action.

If you think these lawsuits sound a bit far-fetched, look at what happened in the Netherlands, where a climate-change campaign group called Urgenda persuaded the Supreme Court in 2019 that the country’s greenhouse gas emissions had to be reduced by 25 per cent between 1990 and 2020. The Dutch government had been arguing for 20 per cent. The lower courts decided that the government had broken tort law — as the German electricity producer RWE is accused of doing. The appeal courts found breaches of human rights law.

Shouldn’t decisions such as this be left to national parliaments?

But those are not the only options open to campaigning lawyers. A London-based charity called ClientEarth recently targeted two utility companies in Poland that had sponsored a planned new coal-fired electricity generating plant. The campaigners were able to sue the utilities because they’d bought shares in them. They won their case on the basis that shareholders had not given informed consent to a project that was never likely to be profitable. Share prices rose as a result.

In Australia, campaigners are relying on planning law. A group of Australian teenagers are seeking an injunction to stop the federal environment minister approving an extension to the Vickery mine in New South Wales, from which the coals would then be carried to Newcastle, by train, for export. Acting through their litigation representative, an 86-year-old nun, they claim the minister is under a common law duty to consider the mine’s social impacts. Unsurprisingly, that’s disputed.

All this represents an emerging body of legal study. Indeed, there’s already a centre for climate change law at Columbia Law School in New York. But should the judges be quite so activist? Shouldn’t decisions such as this be left to national parliaments and international agreements?

That’s not how the courts see it. Common law judges are used to developing the law to meet the needs of society. The human rights court takes a similar approach. If countries commit themselves to tackling climate change — as they will again six months from now when COP26 meets in Glasgow — the courts will ensure that governments and energy companies keep their promises. Remoteness of damage will be no excuse.