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Vanuatu vs the developed world: taking climate change inaction to court

December 05, 2018


Partners Sally McKechnie

Climate change (inc Zero Carbon Bill and Emissions Trading Scheme)

Vanuatu’s Foreign Minister, Ralph Regenvanu, announced last week that the island nation’s government is considering legal action against the world’s most polluting (and powerful) corporations and countries. 

For countries like Vanuatu, there is a great injustice in climate change, whereby the states which contribute least to the problem often bear the greatest negative effects from it.

With this proposed litigation, Vanuatu is seeking to shift the costs of climate change from small island nations like itself onto the major fossil fuel companies and developed countries.

While it might seem ambitious, Vanuatu’s proposed legal action follows a growing global trend. Around the world, the courts are being turned to with increasing frequency to combat political action - or inaction - on climate change. 

In 2015, a Dutch environmental group successfully sued the newly elected Dutch Government for reducing the previous Government’s emissions mitigation targets. The Hague District Court found the reduction in emissions targets violated the Dutch constitutional code, which recognised the Government’s duty of care owed to its citizens.

We saw something similar in New Zealand last year, when the High Court demonstrated a willingness to review policy decisions made on climate change issues. 

A law student challenged two decisions made by Paula Bennett, the then Minister for Climate Change Issues, and the Court found that the Minister had improperly exercised her discretion by failing to review the 2050 emission reductions targets, after the release of the new Intergovernmental Panel on Climate Change report. 

Importantly, the High Court considered that reductions targets set under the Paris Agreement were within the scope of court review, noting that the growing international trend demonstrated “it may be appropriate for domestic courts to play a role in government decision making about climate change policy.”

Currently, there is pending litigation in the United States, where a group of young plaintiffs is suing the United States government for harm they say is being caused as a result of inaction on greenhouse gas regulation. 

The plaintiffs are relying upon explicit and implicit constitutional rights and the public trust doctrine, which considers ownership of common natural resources to be vested in the state as trustee of a public trust for the benefit of the people. The argument is waiting to be heard by the Oregon District Court, after the US Supreme Court rejected the Trump administration’s request for it to intervene and dismiss the case. 

What Vanuatu is seeking to do is a development of this global litigation trend, and they appear to be considering three potential avenues of action.
The first two are claims against the corporations which contribute to the majority of greenhouse gas emissions, and against countries who have so far failed to concertedly pursue efforts to limit the global average temperature increase to 1.5 degrees Celsius, as agreed in the Paris Agreement.
The third avenue is claims against developed countries for inadequate contributions to the Green Climate Fund - a fund established under the UNFCCC framework with the object of providing support to developing countries to reduce their greenhouse gas emissions and to adapt to the impacts of climate change.

These claims differ from those brought in previous cases and raise a host of issues associated with international law claims. Foremost among them is the likely difficulty in establishing cause and effect of trans-boundary air pollution to a legal standard. 

There are also question marks about the enforceability of the Paris Agreement. While the agreement itself is legally binding on the signing parties, the Nationally Determined Contributions (NDCs) - the tool used to implement the goal of limiting global temperature rise to 1.5 degrees Celsius - are not enforceable.

The scope and enforceability of the Paris Agreement’s Article 9 obligations on developed countries, to provide financial resources to assist developing country Parties with respect to both mitigation and adaptation, is also uncertain.

While there may be technical challenges facing any claims brought by Vanuatu, they would still herald the newest chapter in the use of the Courts to respond to the challenges of climate change and address frustration from continued inaction.

If our Courts further expand their “role in government decision making about climate change policy”, this development could be of increasing interest here.

This article was first published on Stuff on 4 December 2018.