By Anxhela (Angela) Mile [*]
Climate change is undeniably one of the most challenging and pressing issues of our time. The Intergovernmental Panel on Climate Change (“IPCC”) emphasized that there are approximately ten years to limit global warming to 1.5°C. Without drastic mitigation and emissions reduction, the world is on track to 4°C warming by 2100, which would prove to be disastrous. In light of federal inaction on mitigating climate change, litigation is being utilized more frequently to propel governments to act, mitigate, and adapt to climate change.
This blog post looks at only two of those cases, one in the United States, Juliana v. United States (“Juliana”) or the “trial of the century,” and one in the Netherlands, Urgenda Foundation v. The State of the Netherlands (“Urgenda”), a successful climate change case. While being filed in two different countries, with varying political systems and ideologies, the cases present comparable arguments and raise similar challenges.
Juliana v. United States is a lawsuit filed by youth plaintiffs who are represented by the non-profit organization Our Children’s Trust, on behalf of future generations through their guardian, climate scientist James Hansen, and members of Earth Guardians, against the United States and the Executive Branch. The lawsuit was filed in the U.S. District for the District Court of Oregon. The case is gaining popularity as it represents a new area of atmospheric trust litigation based on the public trust doctrine. The Juliana case has sweeping implications despite how the case will move forward as a trial would “be the first time the government’s affirmative fossil fuel policy would meet climate science in court.” This would still be considered a “win” as it will demonstrate how the fossil fuel industry has set out on a disinformation campaign in regards to climate change.
Urgenda v. The State of the Netherlands is a suit filed by the Urgenda Foundation and nine hundred Dutch citizens which aimed to reduce greenhouse gases (“GHGs”) by twenty-five percent by 2020. The Urgenda decision is said to be a revolutionary decision as it is the “first time any court around the world ordered its own government to strengthen its response to the climate change crisis by expanding the duty of care under Dutch Law through international and constitutional obligations.” Procedurally, the District Court of the Hague decided that the Netherlands reduce GHGs by at least 25% below the level of 1990 by the end of 2020. The District Court ruled that the government breached its duty of care under the Dutch Civil Code. Afterwards, the Court of Appeal of The Hague affirmed the lower court’s decision but used a different legal reasoning under international obligations.
The significance of Juliana and Urgenda is well founded. The cases represent a growing trend of using litigation to reduce greenhouse gas emissions. Both cases have been filed by citizen plaintiffs against the federal government, and rely on the public trust doctrine to compel the government to reduce GHGs to fulfill the duty of protecting citizens from the dangers of climate change. In particular, one scholar says that “Urgenda provides a framework for U.S. courts to adjudicate rights-based climate cases brought against the government without violating separation of powers principles.”
Furthermore, both Juliana and Urgenda represent “an intergenerational equity challenge” raising the atmospheric trust theory, which holds that governments have failed to protect the litigants’ rights to a healthy future by not ensuring a climate which is capable of sustaining life, and that the government breached their duty to protect their citizens. In Urgenda, the duty of care argument is raised from Articles 2 and 8 of the European Convention on Human Rights (“ECHR”). In Juliana, the duty of care is raised from the U.S. Constitution, within the Due Process and Equal Protection Clauses.
As Pope Francis has stated in On Care for Our Common Home, “the scientific issue of climate change is fundamentally a humanitarian issue in which our one home, with the perfect conditions for sustaining human life, is at jeopardy.” Those who will also bear the worst burden of climate change are also those who have contributed the least to climate change. Additionally, climate change is a complex issue because the actions of the present generation are exacerbating the harm that will be felt by future generations, i.e., the perfect moral storm.
The new mechanism of regulating greenhouse gas emissions through litigation is playing an important role since action at the international and federal level is lacking. “Climate change does not easily fit into a scientific, political, or legal box. If that is the case, how it operates in a separation of powers setting is by no means clear.” While the Dutch court ruled favorably for climate activists in Urgenda, it is still difficult to say how the court will move forward in Juliana. Yet both Juliana and Urgenda contain important parallels which demonstrates that the legal framework may be an effective way of mitigating climate change.
[*] Anxhela (Angela) Mile is a third-year law student at the Elisabeth Haub School of Law at Pace University, studying environmental and international law. Prior to law school, Anxhela attended Boston College and studied environmental geoscience and international studies. She is a Research and Writing editor on Pace Environmental Law Review and has served as a law clerk at the Department of Justice and as a legal intern at the United Nations.
 INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (“IPCC”), Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C approved by governments (Oct. 2018), https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/.
 Raymond Clémençon, The Two Sides of the Paris Climate Agreement: Dismal Failure or Historic Breakthrough, 25 J ENVT’L & DEV. 3, 24 (2016), http://journals.sagepub.com/doi/abs10.1177/1070496516631362.
 Juliana v. United States, 217 F.Supp.3d 1224, 1239 (D. Or. 2016) Our Children’s Trust, Juliana v. United States: Youth Climate Lawsuit, (last accessed on July 15, 2019), https://www.ourchildrenstrust.org/juliana-v-us.
 Eleanor Stein and Alex Geert Castermans, Urgenda v. The State of the Netherlands: The “Reflex Effect” – Climate Change, Human Rights, and the Expanding Definitions of the Duty of Care, 13 MCGILL J. SUST. DEV. L. 305, 324 (2017), https://www.mcgill.ca/mjsdl/files/mjsdl/6_stein_web.pdf.
 Benoit Mayer, The State of the Netherlands v. Urgenda Foundation: Ruling of the Court of Appeal of The Hague (9 October 2018), (Nov. 2018) (citing Urgenda Foundation v. The Netherlands  HAZA C/09/00456689 (June 24, 2015); aff’d (Oct. 9, 2018) (District Court of The Hague, and The Hague Court of Appeal (on appeal)).
 ELAW DATABASE, supra note 7.
 Case Comment, State of the Netherlands v. Urgenda: Hague Court of Appeal Requires Dutch Gov’t to Meet Greenhouse Gas Emissions Reductions by 2020, 132 HARV. L. REV. 2090, 2097 (May 10, 2019) https://harvardlawreview.org/2019/05/state-of-the-netherlands-v-urgenda-foundation/.
 Elizabeth Fisher, Climate Change Litigation, Obsession, and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA, 35 DENV. L. & POL’Y 236, 260 (2013), https://onlinelibrary.wiley.com/doi/full/10.1111/lapo.12006.
 ELAW DATABASE, supra note 7, ¶ 43 of Urgenda; European Convention on Human Rights, Council of Europe, Art. 2; Article 8 (am. June 1, 2010), https://www.echr.coe.int/Documents/Convention_ENG.pdf.
 First Amended Complaint ¶¶ 279, 291.2, 294, 308; Juliana v. United States, 217 F. Supp. 3d 1224, 1239 (D. Or. 2016), appeal docketed, No. 18- 36082 (9th Cir. Dec. 27, 2018); See also Defendant’s Motion to Dismiss, No. 6:15-cv-01517-TC, at 10.
 ENCYLICAL LETTER: Laudato Si: On Care For Our Common Home (Pope Francis), http://w2.vatican.va/content/francesco/en/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si.html; See also DRAWDOWN: THE MOST COMPREHENSIVE PLAN EVER PROPOSED TO REVERSE GLOBAL WARMING 190 (Paul Hawken Eds. 2007).
 GUS SPETH, The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability 28 (Yale University Press eds., 2008) (Climate change has and will continue to influence the availability of freshwater, damage the health of ecosystems, cause sea level rise that will exacerbate coastal erosion, flooding and wetland loss, and may even increase human health suffering through increases in malnutrition, increased burden of diarrheal disease, and increase cardo-respiratory diseases).
 Fisher, supra note 14, at 247.