Lukewarm Result from COP26 Paves Future for Environmental and Climate Litigation

By: Linda Yanti Sulistiawati, Senior Research Fellow, Asia-Pacific Centre for Environmental Law (APCEL), National University of Singapore and Assoc. Prof, Faculty of Law, Universitas Gadjah Mada.

The 2021 United Nations Climate Change Conference, or COP26, managed to “keep 1.5 degrees alive” while the world watches with bated breath to see if Glasgow will be able to reach more than just a lukewarm result.  Realistically, the hope of a swift 1.5 degrees temperature decline still seems presently out of reach, with Climate Action Tracker modelling that even with the updated nationally determined contributions (NDC) on reducing greenhouse gas emissions, the world is nevertheless on track for 2.4°C of warming by 2030 (climateactiontracker.org).

However, taking a step back from the collective inadequacy of global climate action, what happens if individual countries fail to achieve even their own NDC pledges? The NDC approach requires countries to set their own level of ambitions for climate change mitigation within a collaborative and legally binding process that fosters ambition towards the Paris Agreement goals (Bodansky 2016). The legally binding properties of the Paris Agreement is based on the consent of contracting states (Bodansky 2016)and the costs of nonparticipation, noncompliance, or withdrawal (e.g., loss of reputation, loss of status, etc.). Strong international norms with high violation costs such as the Paris Agreement, are thus sometimes also called ‘binding’ (Hoffmann 2011).  

There are a few points that are worth highlighting.

First, the State’s consent to the Paris Agreement creates opportunities for subnational actors to demand state accountability in climate mitigation and adaptation. Environmental litigation, and specifically climate change litigation, continues to grow in importance (Lin and Kysar 2020). UNEP’s “Global Climate Litigation Report: 2020 Status Review” (2020 Climate Litigation Report) noted that between March 2017 and 1 July 2020, the number of climate litigation cases near doubled with at least 1,550 climate cases filed in 8 countries. The Sabin Center for climate change law indicated that in October 2021 the numbers of climate litigation cases were 1,756 for US and 529 for non-US countries respectively.

Landmark cases such as Urgenda Foundation versus The State of The Netherlands in 2019, have enthused alleged violations of constitutional rights to life, health, and property, motivating cases such as in Germany’s Family Farmers and Greenpeace Germany versus German Government in 2021.  Another example is India’s National Green Tribunal in 2018, taking up a matter on its own motion (suo moto) after coming across a newspaper report on the felling of 200 trees on private property without the prior permission of the relevant authorities in Court on its own motion vs State of Himachal Pradesh. In Indonesia, from 2010-2019 there are 85 court cases related to climate change (Sulistiawati 2020). In the criminal courts, usually cases involving climate are forest fires cases (52,4%), done by individual or an individual representing a company (92%), and climate change is used in the Judges legal consideration (35,7%). In the civil courts,  90% resolved in the district court (judex factie), out of the 12 civil cases, 7 of them using climate change in their main claim as an argument. In the admin cases, out of the 12 cases analyzed, 6 of them using climate change as their main claim, but also, only 4 of them were accepted.

Second, with the lukewarm COP26 result, there is an increased possibility that the inadequacy of states commitments would be the main issue discussed in environmental and climate litigations. This entails that State parties to the Paris Agreement should prepare for the possibility to see the increase of environmental and specifically climate litigations increase nationally.  Environmental courts and tribunals would be better equipped to handle this phenomenon. Their mandate, independence, procedures, resources, and court support should be ready to handle the surge of environmental cases.

Third, what about states without special environmental courts or tribunals? Many environmental cases in countries without special environmental courts or tribunals, are assigned to general courts. The risk of this is when the general courts are not equipped to understand and process environmental cases. However, current trends show that countries are training their general court judges with environmental law issues to have them familiarized and capable of handle environmental cases. Indonesia has trained and certified their judges in environmental law since 2012 (Mulyono 2021). Even countries with existing environmental courts and tribunals are training their general court judges on environmental matters to better equip general courts in dealing with the environmental and climate intersections and implications in non-environmental cases. Thus, it is inevitable that general court judges must at some point grapple with environmental law and science. Furthermore, contemporary environmental issues such as climate justice, gender inequality, Covid-19 impacts, and private sector involvement are becoming increasingly commonplace in classic environmental law cases, highlighting the intersectional, multidisciplinary nature of environmental and climate issues.

In conclusion, citizens are now more informed than before in pursuing their fundamental rights.  This includes demanding that their countries fulfil obligations and commitments to steer them, and the world away from environmental and climate catastrophe. Courts of all levels and types, whether national or local, special environmental courts or tribunals or general courts, need to be prepared to facilitate for this process.  Whatever results achieved (or not achieved) in COP 26, testify to the political will of states to protect their citizens from climate crisis through immediately realizing bold climate action.

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