A tool to enable citizens around the world to seek climate change justice is being launched today by the International Bar Association (IBA).
Based on advice from leading experts, its groundbreaking Model Statute for Proceedings Challenging Government Failure to Act on Climate Change provides detailed rationales, precedents and 23 specific articles for reforms to support judicial reviews of the sufficiency of a government’s climate measures and, where these are lacking, to assess whether further measures are warranted under domestic laws. It contains measures that can be adopted by judges, rules of court or legislation, for proceedings directed against governments as opposed to private entities.
David Estrin LSM, Co-Chair of the IBA Model Statute Expert Working Group, commented: ‘This Model Statute is intended to lower the procedural legal hurdles many citizens face when trying to access the courts. Building on recent successes and judicial reasoning, it highlights the role of litigation in setting requirements for governments to protect the public. The adoption of some or all of the Model Statute by judges, rules of court, policy-makers or legislatures will help ensure a critical and timely reduction in greenhouse gas emissions.’
The Model Statute was produced by an expert working group which recognised that despite some influential litigation successes, there remain many legal hurdles for citizens attempting to hold governments accountable for climate inaction. In some cases, governments have argued that the climate crisis is a policy issue and therefore cannot be ruled on by the courts. In others, courts have denied citizens standing to bring the case, leading to its dismissal before the merits were argued; and litigation costs, including court fees and disbursements, can deter citizens from even trying to access courts. The articles of the Model Statute, where adopted by courts or legislatures, would allow these hurdles to be lowered or eliminated.
For example, article 4 provides for citizens to find an open courthouse door ("standing") to ask for protection from climate harm, by adopting "open standing" or "public interest standing", as well as intergenerational standing, approaches that have worked well in government litigation in different countries.
On potential government defences, article 16 provides that it is not a defence for the government to show it has only allowed or emitted a small quantity or volume, or share, of greenhouse gases, or permitted only a minor degree of harm,’ as these defences are inconsistent with the treaty commitments each state has made to rein in emissions within their own borders. Nor is it a defence to assert that government regulation of climate change is non-justiciable as a political, policy, executive or legislative function: this defence was rejected for instance in the 2019 Netherlands Supreme Court Urgenda decision, on the basis that while policy issues are for government, the courts have their own part to play in deciding whether governments are within the limits of the law in not infringing the constitutional or human rights of their citizens.
By article 23, the court is, unless there are exceptional circumstances, to order costs against an unsuccessful Government defendant, but shall not order the unsuccessful plaintiff or applicant to pay government costs of any successful Government defendant, and shall consider whether the unsuccessful plaintiff should be awarded costs against the government defendant for upholding or advancing an important public interest or legal issue.
Whilst the articles are aimed at being adopted by legislatures and the courts, the introductory commentary is directed at those without any legal training or background to assist in a better understanding of the opportunities for citizen litigation challenging government climate action and inaction.
Roger Martella, co-chair of the expert working group, commented: "The law has a huge part to play in successfully addressing global climate change, but it is not always easy for citizens and communities to access their courts and assess government action, or the lack thereof. Simply put, this Model Statute levels the playing field. It provides much-needed process and access for government litigation to be heard, without prejudging the outcome of those cases under domestic laws."