The 'Right' to a Change-Free Climate

Steven F. Hayward25 Jun, 2024 6 Min Read
What to do? Sue!

Lawfare isn’t just a technique to attack Donald Trump. It’s becoming a key tactic of the climate cult that can’t get its complete wish list enacted through the democratic branches of government. And it’s not just happening in the U.S. Several weeks ago the European Court of Human Rights (ECHR), in what is being called a “landmark” ruling, found that the government of Switzerland had failed in its duty to take effective action against climate change. The court derived this finding from the premise that protection from climate change is a “fundamental human right.” The case had been ongoing for eight years.

According to a news release, “Today’s ruling is unprecedented. This is the first time that the ECHR has condemned a state for failing to take action against climate change, linking the protection of human rights to compliance with environmental obligations. . .  Siofra O’Leary, president of the ECHR, said that Switzerland had not implemented sufficient national policies to tackle climate change, as required by the Paris Climate Agreement.” [Emphasis added.]

Right away we see a clumsy sleight of hand unworthy of an amateur magician. The famous Paris Climate Agreement requires nothing—it has no binding provisions except those individual nations choose to bind themselves to purely as an internal matter, which are not enforceable, and are also unilaterally reversible. If you want to understand what’s going on here, simply consider that the first attempt at a traditional, binding and enforceable international treaty on climate change, 1998’s Kyoto Protocol, was over 1,000 pages long, while the Paris Climate Agreement of 2015 was just over 30 pages.

Didn't happen.

Meanwhile, over in the United States, a pair of lawsuits against the federal government (Juliana vs. United States and Genesis B. vs. Environmental Protection Agency) brought by “Our Children’s Trust,” an advocacy group representing aspiring Greta Thunbergs throughout the land, were finally dismissed after nine years of courtroom proceedings. The suits claimed that young people have a constitutional right to a stable climate.

The Swiss lawsuit had been brought by an elderly group, on the grounds that the elderly are especially vulnerable to the effects of climate change. One might almost describe these separate legal efforts as an unlikely coalition of the AARP and Disney’s Mouseketeers. But any claim will do apparently. And in South Korea, a lawsuit is pending before its constitutional court, brought by a group of plaintiffs described as “babies, children, and adults,” and similar cases have been filed in Canada, Australia, India and Brazil.

One of the dismissed American lawsuits actually claims: “Declaring the United States national energy system to be unconstitutional would resolve the controversy between the parties, thereby redressing a substantial cause of Youth Plaintiffs’ constitutional injuries.” [Emphasis added.] The requested remedy was that the judiciary assume full command and control of U.S. energy policy, with a mandate to close down fossil fuel energy sources as rapidly as possible.

Over 200 environmental organizations endorsed these lawsuits, with several filing amicus briefs in support. Significantly, both the Obama and Biden administrations, fully committed to the so-called consensus climate policy agenda, moved to have these cases dismissed on traditional standing grounds, but the presiding district court judge ruled against the government, despite being instructed several times by the Ninth Circuit Court of Appeals to dismiss the case. Yet the trial court judge kept the lawsuit alive, allowing the plaintiffs to refile their suit with modifications sufficient to evade the appellate court’s dictates, and incredibly calling for a settlement conference between the plaintiffs and the federal government.

As everyone who follows the American judiciary knows, the Ninth Circuit is the most progressive of our appellate courts, and legendary for being friendly to novel legal theories. And just as legendary for being overruled by our Supreme Court for these novelties—more so than any other appellate circuit. It says something about the weakness of the case when the Ninth Circuit Court repeatedly tells you your case lacks merit.

Trying to put business out of business.

The end of these American lawsuits actually came as a relief to smarter environmentalists and climate activists (both of them, I am tempted to say), because if these suits had proceeded, it is likely our Supreme Court would have taken them up, and, uncontested by the Biden Justice Department, ruled that a fundamental right to a stable climate does not exist, and is a policy matter solely for the legislative and executive branch to develop remedies at their discretion.

One important difference between American law and European law in this domain is that when American courts on rare occasions take jurisdiction over a particular case or controversy issue, they really mean it. There have been a few instances, usually in our troubled and ambiguous realm of civil rights law, where federal courts have taken over the active management of entire school districts, or the employment practices of private corporations, or in one case a major highway project. These legislative exercises of judicial power have always sat uneasily in American law, and have usually been curtailed or reversed in the fullness of time. If an American court ever does rule that there is an unenumerated “fundamental human right” to a stable climate, it will assume serious plenary power in complete violation of the separation of powers.

In the Swiss litigation out of the European Court of Human Rights, the proposed remedy or compliance is—what exactly? Don’t expect the European Court of Human Rights to hold members of the Swiss government in contempt of court if they fail to snap their fingers and somehow end climate change, or issue injunctions or fines of any kind.  The vagueness or indeterminacy of the exact reach and authority of the European Convention on Human Rights, and the rulings of the European Court of Human Rights, are purposefully indirect and subtle. The ECHR lacks direct jurisdiction over member states.

If you consult the disparate discussions of the legal authority and reach of the human rights conventions and court rulings in, for example, the The Oxford Handbook of Comparative Constitutional Law, you come away with the impression that the ambiguity of this question is intentional. The entry on “Sovereignty” in the Oxford Handbook, for example, says that “these arguments are formulated at a metalinguistic level,” adding that “We can doubt if they are as meaningful from the legal point of view and whether they constitute a real challenge for the theory of the international sovereignty of the state.”

Nearly every European nation pays lip service, and sometimes puts down in legal text somewhere, to abide by the findings of the Court of Human Rights—even sometimes stating that the various human rights conventions and rulings of bodies like the ECHR take precedence over national constitutions or positive law statutes—maybe. The language is always convoluted and full of foggy clauses reserving the full powers of national sovereignty— language that effectively means “unless we don’t want to.”

Tom Paine would be proud.

By degrees it becomes apparent that the object is to get the courts of individual nations to adopt or internalize the doctrines of the Human Rights Court in domestic law. Often these international courts succeed in intimidating national courts or legislatures to do their bidding and incorporate the judgments into their national law, thereby sidestepping a formal breach of sovereignty. In the case of Swiss climate lawsuit, Switzerland’s parliament forcefully rejected the ECHR ruling, asserting its full sovereignty over the issue and noting that international courts had no business trying to dictate national policy on anything.

It is not necessary to contest either climate science or climate policy to grasp the insidious nature of this kind of litigation. A number of environmentalists both here in Europe and in the U.S. were candid in admitting that these lawsuits were more about public relations than real legal remedies. And in that respect they are having the desired effect. An online poll in Switzerland asked if respondents thought it was a good thing for courts to get involved with climate policy, with 59 percent answering Yes, and 39 percent No.

Back in the U.S., there are a number of state-level climate-related lawsuits that remain in process, more modest in scope, usually involving seeking liability judgments against energy companies. These are simple shakedown and harassment lawsuits, but keep your eye on them. The climate bar has visions of a tobacco-like settlement that will line their pockets, raise energy prices for consumers, and do very little for the climate.

Steven F. Hayward is a resident scholar at the Institute of Governmental Studies at UC Berkeley, and lecturer at Berkeley Law. His most recent book is "M. Stanton Evans: Conservative Wit, Apostle of Freedom." He writes daily at Powerlineblog.com.

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3 comments on “The 'Right' to a Change-Free Climate”

  1. Lawfare can be effective. We have seen the tobacco industry brought to its knees by lawfare strategies. The same strategies will work when applied to the oil industry and fossil fuel industries. Eventually extracting oil will be be tasked to governments.

  2. First of all this must play out in court, and if after the question of standing and jurisdictions are resolved and a final judgment rendered, a solution is simple. Government must simply say plaintiffs have no standing and whatever court it is lacks the jurisdiction, the government nonetheless declares that they have done everything they can and they have fully complied with the illegitimate finding of the court.

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