First published at RS21.org
Barrister David Renton considers recent victories for the climate movement in the courts – but argues that legal challenges and ‘green laws’ alone cannot guarantee the massive change we need.
Last week, the Good Law Project (GLP) succeeded in obtaining a ruling from the High Court that the government’s Net Zero Strategy lacked sufficient detail and should be rewritten. The Net Zero Strategy is the government’s current plan to ‘decarbonise all sectors’ to ‘end the UK’s domestic contribution to man-made climate change’. The news of GLP’s victory was widely shared, with nearly 10,000 people liking a tweet from GLP’s Director Jolyon Maugham, “We won: Government’s Net Zero Strategy is unlawful.”
How much, though, did GLP’s victory actually win? The government was given 8 months to redraft its Net Zero Strategy. The strategy document already set out measures by which (supposedly) 95% of that target was to be met; it was sketchy, however, about how a final 5% of cuts were to take place. The new document must provide more detail about that final 5%. That is all.
In the same case, the court was given an opportunity to consider developments in other countries’ climate law, notably in Holland (the ‘Urgenda’ case discussed below), where the Supreme Court has held that access to nature is part of our common right to life. That approach, the judge held, could not be followed in Britain, since it would go beyond the ‘permissible incremental development’ of the law.
The Net Zero case was typical of a whole period in the development of environmental law. Three years ago, Lawyers for Extinction Rebellion made a Declaration of Rebellion arguing for the ‘critical part the law must play in restoring the health of the planet’. This summer, lawyers have been taking action by protesting outside the Inns of Court. Many lawyers have been involved in defending environmental protesters charged under public order laws. More people are trying to use the law to safeguard nature than ever before.
Activist lawyers reason that if there is still any chance that the world is going to keep to our supposed target of reducing global warming to 1.5° or 2°C above pre-industrial levels, we will need to bring about a total change in the way businesses and society are organised. There are no mechanisms capable of achieving that transformation other than a social revolution or more piecemeal change through the law. The problem is that the law resists our demands. Our existing environmental laws are unfit for purpose: they are structured on the assumption that the most important task is to increase the profits of the polluters. They allow the public some very weak influence over government; they allow us no control over the worst-polluting businesses.
Judicial review
The one instrument of the law which is most accessible to green campaigners is the right to sue the government in judicial review (JR). This is a means by which campaigns can challenge the decisions of government – meaning local government, ministers, planning bodies, etc.
Yet, judicial review is a weak counter-mechanism to limit the aggressive executive that we see under right-wing populist leaderships. Access to judicial review is limited: it is one of the costliest forms of litigation, being only available in the High Court. To fundraise for a potential judicial review, campaigns need to raise tens of thousands of pounds – enough to prepare their case, pay for lawyers to argue it and (a much greater expense) funds to cover the cost of the government’s lawyers should the judicial review fail. And, whilst government is susceptible to judicial review, the worst polluters – private businesses – cannot be challenged there.
The government legislated last year to ration public access to judicial review. The judges have acquiesced in that process, scrutinising judicial reviews as never before, and rejecting them in far larger numbers. A small part of the attack has been an attempt by judges to limit the number of cases which can be brought by the Good Law Project as a limited company, whose aims have been so widely drawn (two High Court judges held) ‘that just about any conceivable public law error by any public authority falls within its remit’.
In the Net Zero case, when the judge spoke of the permissible development of the law, the politics were intended to be on full view. Yes, a narrow, limited, challenge to the drafting of the Net Zero Strategy was permitted. But what no-one was allowed to challenge was the essential dishonesty of Net Zero itself. To say that Britain has been cutting emissions on a timescale fast enough to reach that target, we have excluded some of the country’s worst emitting businesses altogether, including aviation, and shipping – although it is agreed that they will be counted in future (but only from 2032).
In its plans, the government has deferred the point of rapid carbon reduction to the years 2033-7. It insists, for example, that by 2035 every home and business in Britain must run on electricity from low carbon sources. One very obvious problem with the plans is that the government is continuing to greenlight new high-carbon powerplants, such as the new Drax plant which is being built in Yorkshire with its owners claiming it will be the largest gas power station in Europe. No-one believes that Drax will agree to simply switch off its new plant in ten years’ time without compensation. Ministers’ decision to authorise the plant was challenged in the High Court, but the government won.
The government is making plans which nobody – ministers, civil servants or judges – believes will actually be met. Insisting that such plans are drafted in future may feel like a ‘victory’. The generations yet to come who are forced to live with diminished access to food and healthcare because of irreversible climate change are unlikely to see this in the same way.
Regulation
Almost all our present environmental laws take the form of regulation: standards drawn up by government to ensure that buildings such as workplaces or homes provide insulation, or rules requiring shops to charge customers for carrier bags, etc.
The problem with regulation is that it sets a very weak series of rules on top of market relationships in which the interests of companies dominate. Over the market, the government negotiates with the same companies who cause our carbon emissions. Because of our capitalist political culture, in which the rights of business are seen as paramount, the government sets the penalties low, making them ineffective.
The best example of environmental regulation in Britain today is the energy price cap to prevent suppliers of gas and electricity from overcharging. By October, that cap will be at its highest ever level. The reason it is so high is that Britain imports gas, and energy producers demand a price consistent with world market prices. The government could insist that business importing gas to Britain must charge consumers significantly less than market rates. It has not done so. No-one pretends that a government led by Liz Truss or Rishi Sunak (or for that matter Keir Starmer) would risk this direct conflict with big business.
Regulation never alters the balance of power sufficiently in favour of the consumer. To do that under capitalism you would have to nationalise industries, or compel them to trade at unfavourable rates. And these are steps which, for more than 40 years, have seemed impossible.
Is climate change just a ‘nuisance’?
In response to the pollution of the industrial revolution, the law responded by terming the damage to air quality or water supplies ‘nuisance’. Yet ‘nuisance’ is inadequate in the face of the challenges we face as summers lengthen, and storms and floods become common. A claim in nuisance can only be brought by someone who owns property. It envisages, for example, an industrial district in which there are two factories, one of which releases acid into the air and another business whose products are damaged by it. The owner of capital can sue for their financial loss; no damages are available to the worker or the tenant, not even if their bodies are damaged by that pollution.
The limits of nuisance are well illustrated by a case brought in the German courts by Peruvian farmer and mountain guide Saúl Luciano Lliuya against the power behemoth RWE. Lliuya is a homeowner, whose property is at risk from flooding from a rapidly growing glacial lake above his home. Green news sources have reported Lliuya’s victories, which have included successfully persuading the court to visit his site and inspect the likely damage.
What is always said, but rarely spelled out, in the reporting of his case, is how difficult it would be to turn this litigation into a general model. Lliuya is arguing that RWE should pay 0.47% of the adaptation costs associated with the glacial retreat, a share corresponding to the company’s estimated contribution to global warming. The practical reality is that the level of compensation offered to Lliuya himself is likely to be very modest if RWE only have to pay 0.47% of the value of his house. Basing the figure on average house prices in Peru, RWE could be liable for as little as $850.
To keep that claim for around $850 alive, Lliuya’s backers have had to fight his case through two different levels of the German court system. Six years after it was issued, it has not even yet had a first factual determination. If Lliuya loses, someone will have to pay court fees running into millions of Euros. His lawyers have very deliberately targeted a business trading in the political and legal jurisdiction most amenable to this sort of challenge. Even if he does win, nobody believes that the Russian courts, for example, would permit a similar challenge against emissions caused by Gazprom.
None of these points are made to deprecate the significance of what Lliuya is doing, or the bravery of his advocates who are fighting his case and trying to create whole new areas of law. But you cannot base a model of legal change on people repeatedly suing big companies in claims which will not benefit them meaningfully. Even if his claim were to succeed, it would take decades to turn this into a system of mass class actions that could benefit the large majority of homeowners, let alone the large majority of people affected by climate change. And with the world likely to cross the 1.5 degree threshold as soon as a mere 4-5 years’ time, we do not have the decades available to wager the future of the world on the slow incremental wisdom of the courts.
Alternatives
Insofar as we rely on law to regulate capitalism, we need laws capable of protecting us in our near future where transport infrastructure will corrode under the impact of rising heat, and energy shortages will proliferate. But this transformation of the law is exactly what judges will not allow.
We might say, for example, that just as today every act of government or of an employer can be scrutinised for its impact in terms of discrimination on grounds of race, sex, disability, etc, so in future should the government and employers be held accountable for their use of scarce natural resources and in particular for the emissions of greenhouse gases, with meaningful fines for those whose stewardship of nature is negligent, and a mechanism to take away their possession of those resources from the worst offenders. What the legal left needs to demand is, in other words, the right to expropriate capital.
The Dutch Supreme Court has begun, tentatively, to recognise the rights of nature, as part of the human right to live and to live a full private life in our homes. One of the reasons that case (“Urgenda”) won was that the Dutch government was proposing climate action which was extraordinarily lax even set against the limited action of other nations. Holland was actually planning to lessen its demands for greenhouse gas emissions: from an initial target of 30% between 2007 and 2020 to 20%. In response, the Dutch Supreme Court held that the state’s positive obligations pursuant to Article 2 ECHR to protect the lives of citizens within its jurisdiction, and pursuant to Article 8 ECHR to protect their right to their home life and private life, necessarily create a duty to protect against dangerous climate change. The Judges held: “the State is obliged towards the residents of the Netherlands … to take adequate measures to reduce greenhouse gas emissions from Dutch territory.” It was the Urgenda decision which was before the British court last week, and which they refused to follow in our own Net Zero case.
More significantly, a number of countries have introduced laws which give the rights of nature a constitutional importance, including India and Ecuador. In New Zealand, the Whanganui River Claims Settlement makes the Whanganui River a legal person, having the right to sue.
If there are going to be the right kind of environmental laws in future, ones capable of meeting the scale of the crisis, they will need to be simpler than our present laws whose complexity creates countless opportunities for businesses to evade their obligations.
Also, laws must empower ordinary citizens rather than ministers or judges. Just as, at present, trade unions have some (albeit not nearly enough) power to enforce workplace health and safety standards, so the only green laws worthy of that name would be ones which provide means for members of the public to force change without the cost or delay of litigation.
We need to be the ones who stop climate catastrophe. Our governments and laws will not permit us to play that role.
The permitted alternative is that marginal development of the law which would mean, in practice, the courts recognising the reality of change only at the moment when our cities are already burning, and when the fires are coming in through our doors.
David Renton is a barrister. His latest book Against the Law: Why Justice Requires Fewer Laws and a Smaller State, was published by Repeater in July 2022.
