Courts now at front line in battles over climate change

As governments make commitments on emissions – or fail to do so – questions of follow-through increasingly lands in court. Vienna's airport is a case in point.

Heinz-Peter Bader/Reuters/File
Planes at Vienna International Airport in Schwechat, Austria March 16, 2017. A planned new runway is being contested in court over its impact on Austria's plans to curb greenhouse emissions.

In what some experts call a “landmark ruling,” Austria’s Federal Administrative Court took an unusual step last month: It became one of the first in the world to block a new infrastructure project on the basis of climate change. 

The judges interpreted regional and national laws, and Austria’s commitments within the European Union and the UN Paris Agreement, to mean that the “public interest” in limiting the impact of climate change outweighs shorter term economic growth from adding a proposed third runway to Vienna’s airport.

“[C]limate change is already taking place in Austria, and will have far reaching impacts on humans, animals, plants and the environment,” the court wrote in its decision, as translated by Global 2000, citing impacts on agriculture, tourism, weather, biodiversity, and human health from airport expansion.

The decision comes amid a wave of court cases over government environmental obligations, collectively signalling that the legal system may play a rising role as arbiter of climate action, and raising the stakes in a debate over what role for courts is appropriate, when it comes to greenhouse-gas emissions.

To some degree, the stepped-up legal action surrounding climate change is simply the natural result of governments making more legal commitments to mitigate the effects of global warming, legal experts say.

“Governments have said lots of things about what they’re going to do, and how they’re going to do it,” says Justin Gundlach, at Columbia University’s Sabin Center for Climate Change Law, in New York. “And if they don’t – or people think they haven’t, even if they had – the role of the court is to provide everyone the answer.”

Cases extend to Global South

Examples include the Urgenda case, where Dutch citizens argued that the government is insufficiently protecting them from climate change (it’s now being appealed); a South African ruling blocking construction of a coal-fired power plant; and a Norwegian lawsuit launched by Greenpeace and Nature & Youth over new government licenses for offshore oil and gas drilling in the Arctic. In the US, a federal judge has allowed a case to move forward in which children are arguing that government actions, by causing climate change, are an unconstitutional violation of their rights to life, liberty, and property.

Mr. Gundlach notes that the South African case is significant (along with rulings in India and Colombia) in extending climate litigation beyond high-income countries to the Global South, which is home to about 85 percent of the human population and 30 of the world’s 36 “biodiversity hotspots.”

In the face of powerful fossil-fuel industries, these cases enable citizen and environmental groups to push politicians to make their commitments more than symbolic. And sometimes, as in Vienna, they are taking governments and the public by surprise.

“The case shows that the commitments that policymakers make to protect climate, to fight climate change, can make a difference on the ground,” says Verena Madner, professor of public and environmental law at the Vienna University of Economics and Business. She hopes politicians will realize that they can’t “have it all,” signing laws and treaties and then avoiding the follow-through.

“I hope that it’s also a wake-up call for the government and parliament to take action, and to really do climate policy – rather than the courts – in the long run,” Ms. Madner adds.

Johannes Wahlmüller, climate campaigner at Global 2000, a nongovernmental organization in Vienna, agrees. The Austrian judges “said it cannot be that politicians sign those treaties, have the commitments, have the targets, and then we do an approach that’s totally against it.”

Could lawsuits backfire?

The distribution of power between legislators and judges is a delicate balance, and one argument against the court strategy, says Gundlach, is that “you’re avoiding the democratic aspects of the process.”

Some Austrians have accused the judges of acting as policymakers. (One counter-argument is that mainstream politicians and media have overwhelmingly favored the third runway, skewing public debates around the issue.)

In the long run, the power of courts will be circumscribed by politics. Judges’ ability to block infrastructure projects will depend on a country’s legal framework and climate commitments, as set by public officials.

In Norway, too, some are concerned that “a legal elite is going to decide about environmental policies,” says Truls Gulowsen, head of Greenpeace Norway, who helped launch the lawsuit there. [Editor's note: This sentence has been updated to correct the spelling of Mr. Gulowsen's name.]

He disagrees with that view, noting that the judges are considering laws made by elected politicians, “and normally the Norwegian population trusts the courts in ruling between right and wrong.”

He also says climate litigation can inspire more people to participate in environmental action than in the past, as legal professionals or as donors for legal expenses, which can be significant.

Magdalena Heuwieser, of System Change Not Climate Change in Vienna, says court cases are valuable in raising awareness of the need for climate policies.

“Finally, there is a discussion going on around the topic: Can climate mitigation, or the need of reducing our emissions, lead to decisions which are actually limiting economic growth in dirty sectors?” she says.

But she also thinks public discussion and pressure on politicians are crucial tactics.

Aviation and climate

Though nonmilitary air travel accounted for only 5 percent or less of human-related "forcing" of climate change, as of 2005, that looks set to rise as more people become financially able to take plane trips (today only 7 percent of people fly). Aviation is now the fastest-growing economic sector in emissions – with a tripling expected by 2050.

And with electric planes not expected anytime soon, technological advances don’t hold the same pollution-cutting potential that they do for ground-based transport.

Another problem, some policy experts say, is a lack of environmental regulation around aviation. (Emissions from international flights were excluded from both the Paris Agreement and the Kyoto Protocol.

Most countries exempt international aviation emissions (flights that come from or go to another nation) from their national greenhouse-gas inventories. (Global 2000 estimates that, if the Austrian government included air travel in its accounting system, it would add 9 percent to the country’s annual carbon emissions.) [Editor's note: This paragraph and two others above have been corrected, to include a distinction between international and domestic aviation in global agreements, to clarify the reference to aviation's estimated 5 percent role in human-caused climate change, and to remove an inaccurate reference to the industry being in effect self-regulating.]  

The industry also has a competitive advantage over other modes of transport through government subsidies for airport expansion and exemptions on airport property tax, fuel tax and sales tax on tickets. These benefits make flying artificially cheaper compared to driving or taking trains, for example.

Calls for 'behavioral change'

In last year’s first International Civil Aviation Organization (ICAO) climate agreement, which is opt-in until 2027, the industry pledged only to offset rather than reduce its emissions – mainly through controversial carbon offset projects in the Global South (which costs less than reducing emissions in richer countries).

Critics say the agreement represents “greenwashing” more than substantive progress on emissions.

“It in no way is consistent with the headline goals of the UN Framework Convention on Climate Change,” says Leo Murray, campaigner with British activist group

For Roland Jöbstl, Policy Officer for Climate and Energy at the European Environmental Bureau in Brussels, air travel as we know it cannot continue if countries intend to meet the Paris targets.

“We’re going to have to have a behavioral change” when it comes to travel, he says.

Though the Vienna decision is being appealed, that process is likely to take about a year or longer. For now, the decision is keeping one case of expansion from getting off the ground.

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