Katie Kouchakji Policy - 16/September/2019

The transition jigsaw – Part 3: Citizens, civil society and the courts

Citizen activism is working to force change that is beneficial for all

The transition from a fossil fuel-based economy to one powered by renewable energy fast enough to stop runaway climate change can only be achieved by action from everybody in society. In the final part of our series, we examine how civil society is pushing governments and businesses to change through direct climate action and court cases


Citizen engagement: People around the world are increasingly feeling the effects of climate change in the form of extreme weather events. Deadly heatwaves and flooding, in conjunction with clear scientific evidence for the need to ditch greenhouse gas emitting fossil fuels, are pushing individuals to take to the streets, pull their investments out of coal, oil and gas, and even go to court to demand climate action
Creating jobs: Policy makers should focus more on the benefits of moving to a low carbon economy, in particular the creation of new jobs, to push legislative and societal change to slash carbon emissions
Key quote: “In some cases, especially with very large projects, protests might not yet have managed to stop fossil fuel projects for good, but they are slowing them down, convincing investors that it is better to put their money to better use — possibly in renewable energy projects instead — and making it less and less politically viable for governments to cosy up to powerful fossil fuel lobbies.”


Discussions on transforming the global economy to one that is less carbon-intensive are not a recent phenomenon. The UN Framework Convention on Climate Change, the first international treaty which recognised the need to decarbonise, was agreed in 1992. Since then, years of foot-dragging by policy makers and industry have pushed people on to the streets and into the courts in an effort to force change. These methods finally appear to be having an effect.

From the suffragettes demanding votes for women, to the US civil rights movement and demands for nuclear disarmament, activism has long played a role in showing policy makers and businesses how citizens are feeling. Ahead of a summit of world leaders at the UN headquarters in New York in 2014, the People’s Climate March saw hundreds of thousands of people take to the streets in cities around the world to call on politicians to forge a climate agreement. A similar event took place ahead of the Paris climate talks in 2015. The marches were credited with showing overwhelming public support for what became the Paris climate agreement.

More recently, the UK Parliament’s declaration of a climate emergency swiftly followed by legislation agreeing a goal to reduce its emissions to net zero by 2050 came after protests led by the civil disobedience movement Extinction Rebellion in April 2019. France, Ireland and Canada have all followed suit, while cities around the world have been responding to citizens’ concerns with similar declarations. But turning these declarations into policies that will ensure fossil fuels are replaced by renewable energies is not necessarily a given. Civil society has “a real role for mobilising public opinion – I just hope we can do it in a way that can drive effective policies,” says Nat Keohane, senior vice-president at the Environmental Defense Fund, in Washington DC.

Keohane and Hoda Baraka, Cairo-based global communications director for NGO 350.org, agree the public is waking up fast to the fact climate change is real. A survey from July 2018 by ABC News, Stanford University and non-for-profit organisation Resources for the Future, show that eight in ten Americans want the federal government to try to achieve the greenhouse gas emission cuts called for in the Paris agreement, which has been rejected by US President Donald Trump. Keohane says last year’s Intergovernmental Panel on Climate Change report on limiting the average global temperature increase to 1.5°C led to a “sea change” in awareness about climate change in the US.

“Climate change is a reality — the fight now is to not make it worse,” says Baraka. “What unites all of us in this moment is the scale of the urgency.” But she makes it clear this does not mean that everybody is about to take to the streets. Climate action for some will be joining or initiating a fossil fuel divestment campaign at their university, church or pension fund or creating a community renewable energy projects rather than protesting and risking arrest. For some it will be resorting to the law.



Legal route

Court cases to force climate action have increased in recent years. The most well known case in the US is being brought by Our Children’s Trust, in which a group of young people are suing the federal government for failing to limit climate change and using coal, oil, and gas while knowing full well the hazards caused by fossil fuels. In the EU, the NGO Urgenda won a landmark decision against the Dutch government to force it to do more to cut greenhouse gas emissions beyond EU-level targets. In 2018, the Dutch Court of Appeal upheld the 2015 district court ruling. The government promptly appealed to the country’s Supreme Court, which heard arguments in May 2019 and is expected to issue a final ruling by the end of the year.

The lengthy process is a setback, but the impact of such litigation is a lesson for others, says Sam Bright from ClientEarth, a non-profit environmental law organisation, adding that the Urgenda case is in effect leading to a phase-out of coal in the Netherlands. “It is targeting new coal plants to show that they are already stranded assets,” he says.

“We have definitely had an increase in the rate of litigation in our database, both in the US and internationally,” says Jessica Wentz, an affiliate at Columbia Law School’s Sabin Center for Climate Change Law. In particular since 2017, suits by cities, including Los Angeles and New York, against fossil fuel companies have risen, she explains. “These are lawsuits brought under state law, under things like nuisance.” Other common law angles like negligence and harmful consequences of irresponsible action are also being used, she adds. Wentz views these cases as “citizen-driven”.

The slow pace of legal action, however, makes it hard to determine its effectiveness in driving the transition. “It is not possible to fully gauge the impacts of these lawsuits at this time because they are still underway,” says Wentz. “It does seem as though the litigation has helped to spark more dialogue about responsibility and accountability for greenhouse gas emissions and climate change mitigation, which I believe is essential for developing the regulatory frameworks needed to address climate change.”

Bright flags further challenges: citizens may find it hard to identify the legal options available to force climate action and costs are prohibitive for ordinary citizens. “Often, you cannot do much on your own, but you can as part of a larger group of people,” he says. Further, he adds, to fight in court, you need to prove you have legal standing, that you are personally harmed by the action. This point was crucial in a suit Tempus Energy, a technology company, brought against the European Commission over the executive’s approval of legislation in the UK and Poland for “capacity mechanisms” to keep fossil fuel plant online that are being pushed out of the market by cheaper renewables capacity.

“Most of the big [capacity markets], like in the UK and Poland, are designed to build new, big fossil fuel plants and keep the existing ones going as, without the money from these mechanisms, they would have to shut down,” explains Bright. The EU General Court last year upheld the argument that the Commission approved the British capacity mechanism without properly assessing claims that its design would harm Tempus and other clean energy providers. The legal mechanism was subsequently suspended. A similar case is being pursued against the Polish government.


Three pressure points

Bright says there are three places to look at the law to challenge and force change: at the legislative, implementation and enforcement stages. The first, in particular, is where citizens can really put pressure on governments to take action, he says.

The Paris climate agreement helps frame the issue for judges, says Wentz, particularly its goal to stabilise the global average temperature increase at 2°C above pre-industrial levels. The deal helps concretise thinking around what governments can really reasonably do to draw down emissions, she says. Ultimately, says Bright, governments need to adopt climate change laws to force emissions reductions, a general law to push “seemingly radical but urgently needed action” and laws for specific sectors.

Some governments, led by the UK and Mexico, have already passed such laws. Denmark, in response to citizen calls, including a petition signed by 60,000 people ahead of June 2019’s general election, has pledged to pass a new climate law under its new government. The law is expected to formalise the social democratic government’s pre-election pledge to reduce emissions by 2030 to 70% below 1990 levels; the current aim under the former Liberal-Conservative government is a much less ambitious 40%. Back in 2014, the country passed a Climate Change Act aimed at implementing a framework to drive the low-carbon transition.

Environmental Rule of Law: First Global Report, released by UN Environment in January 2019, found that 176 countries had environmental framework laws as of 2017. The report also found that, rather than pass new legislation, enforcing those already in place would be more impactful — even with the gaps in these laws. “The benefits of environmental rule of law extend far beyond the environmental sector,” the report states. “While the most direct effects are in protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights.”


Human rights

Wentz says many of the common law climate cases are grounded in human rights laws. “Climate change is impacting most on those who have contributed the least to the problem,” says 350.org’s Baraka. Its effects are both costing lives and livelihoods, she adds.

Some have cited the gilet jaune movement in France as an example of the most vulnerable banding together to fight back; the protests led to the repeal of unpopular planned tax rises on fuel. While its roots are in economic injustice, the protests highlight some of the challenges in the climate change response debate. There is a danger the energy transition could be slowed down or even grind to a halt in certain countries if those concerned about losing their jobs through the fossil fuel phase out, or a rising cost of living, decide to go to court.

Another example is the “black march” in Spain in 2012, says Bright, where coal miners protested over dramatic cuts to coal subsidies. The funds were to be shifted partly to programmes to transfer the same workers to the green energy sector. Ultimately, the miners went back to work after two months on strike and by the end of 2018, only around 2000 jobs remained in the sector, compared to 8000 six years before, and more closures were on the way.

“Opposition from the fossil industry is slowing the transition everywhere,” says Bright, citing lobbying and closed-door meetings. “It is a huge obstacle to the transition.” Anthony Hobley, co-chairman of the advisory board at think tank Carbon Tracker Initiative, agrees. “We can’t underestimate the resistance we’ll face when people feel they’re being left out and left behind,” he says.

Doug Vine, senior energy fellow at C2ES in Arlington, Virginia, would like to see governments doing “a better job of migrating people to cleaner technologies” although he says it will not be easy. “It involves a lot of human capital, people going into that area and caring about it. It is hard when you have a lot of societal interests embedded [in fossil fuels]. It is politically very challenging to overcome.”



Winning over investors

Baraka admits taking on the fossil fuel industry is a big challenge. “You are going up against an industry which is possibly the richest in the world,” she says, insisting the divestment campaign is about politically bankrupting the industry rather than financially bankrupting companies.

Her colleague Claudio Magliulo says the fact Mohammed Barkindo, secretary general of oil cartel OPEC, recently described climate activists as “the greatest threat” to the sector shows the transition to clean energy is being successful. “In some cases, especially with very large projects, protests might not yet have managed to stop fossil fuel projects for good, but they are slowing them down, convincing investors that it is better to put their money to better use — possibly in renewable energy projects instead — and making it less and less politically viable for governments to cosy up to powerful fossil fuel lobbies,” he adds.

Baraka also advocates for politicians to shout louder about the renewable energy sector’s potential to create more jobs than the fossil fuel sector to bring onboard citizens. A US government report from early 2017 found that 1.9 million people were directly employed in the power generation and fuels technology sector in 2016, of which 1.1 million were in fossil fuel. Forty-three per cent of the power generation workforce were employed in the solar sector, however, and it found that jobs in the fuels sector — namely coal, oil and gas — were falling.

“If you really want to solve this, you can’t come from a starting point of fossil fuels are evil — everyone uses fossil fuels every day,” says Wendy Miles, a London-based partner at Debevoise & Plimpton. Instead, she advocates counselling people from all walks of life: “What’s happening now, what’s possible in the future and what pathways are feasible to get there.” She insists: “You cannot just turn off all fossil fuels tomorrow, there needs to be a transition … everyone needs to be a part of the solution.”

“The energy transition is in train, [but] it’s going to take decades,” Miles adds.


TEXT Katie Kouchakji


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