Neither too early nor too late: Goldilocks litigation in the climate space

Introduction

As environmental lawyers, we often ask ourselves how we can litigate more effectively. But without a higher law – and when we leave the EU we will be without one – what can be achieved through litigation alone is modest. Power lies, and rightly lies, in the electorate, and the law, if it surges too far ahead, risks its own legitimacy. But there is room for some optimism – the last decade has seen significant youth-led protest movements, from the Youth Climate Strikes to the Extinction Rebellion protests. What we, at Good Law Project, ¹ are interested in is how the law can be used to foster, drive, articulate and amplify those demands for political change. Law is, we believe, while not the complete answer, still a unique tool for helping to deliver social, economic and environmental change for the wider community.

Litigation as a tool for political change

Government has at last started to respond to the political demand created by these movements, and the Paris Agreement, ² by amending in 2019 the Climate Change Act to set a more ambitious carbon reduction target of net zero by 2050. ³ But, just as government cannot legislate to secure that the moon is made of cream cheese, meeting that target is not simply a matter of flicking a switch. It demands that we examine all policymaking at the international, national and local levels through the lens of climate change.

However, the day-to-day reality is that government continues to press ahead with funding and enabling carbon-emitting energy infrastructure. Recently, Reuters reported that the UK’s export credit agency was committing $800 million to a $20 billion Liquid Natural Gas Project in Mozambique – despite the fact that the agency promises to ‘support the transition to a low-carbon economy and contribute to sustainable development’. ⁴ Meanwhile, at the date of writing, government refuses to commit even to reviewing whether to change the overarching Energy National Policy Statement (EN-1) that presumes in favour of polluting infrastructure ⁵ and which was drawn up long before the net zero target was set. Of these two decisions, Good Law Project is, at the time of writing, challenging the latter and considering whether to challenge the former. Looked at in their own terms, neither challenge will move the political dial – but both represent opportunities to increase the political costs attached to breaking the promise made to the younger generation that the net zero law represents.

Litigation that pushes issues up the agenda

A profound challenge facing journalists in this sphere is how to write about issues that are decades off and whose consequences for life as we presently understand it are unfathomable. We are of the view that, if we select the right cases, they themselves can be used to tell stories about climate change that are relatable to wider society, and as such we continuously try to rethink the narrative of our litigation so it can be used to amplify demands for action. Finding these stories can often involve sequencing unfamiliar to traditional lawyering, which involves a passive ministering to the legal needs of presenting clients. A step beyond that – now common among cause lawyers – is proactively identifying an issue and then finding clients whose circumstances engage it. In one piece of contemplated air pollution litigation, we move beyond even that. We aim to tell the story that emerges in the specific arena concerned, in a relatable way, by giving that story human form and framing it as a narrative of victim and wrongdoer. To that end, we have embarked on formulating a private law action in negligence for causing harm. The principal difficulty which arises in a private law sphere is around causation – whether air pollution can be shown to cause harm – and we mean to address this by starting not with a presenting client, or even with the issue, but with the medical condition that is most obviously caused – or exacerbated – by air pollution. In this case, it will not be the clients or even lawyers that lead the way but rather medical professionals. In other words, some of the cases and the issues we are dealing with require us to rethink the normal litigation approaches that might be taken in order for us to meet our objectives.

Litigation to amplify demands for action

Finally, we at Good Law Project believe that litigation is most effective – both in its own terms and in terms of its ability to drive political demand – when it is acutely sensitive to its temporal and political context. Covid-19 has delivered widespread demands – reflected in poll after poll – to build back better, that is, to recreate a better world than the one we left behind when the pandemic hit. We work hard to find litigation to channel and amplify these demands and deliver actual change that will benefit the wider community at large. Social media makes it easier to hear these demands, which we then seek to formulate in legal terms. So, for example, we note that it did not take long for reports and studies to arise suggesting that incidences and effects of Covid-19 were exacerbated in areas with high air pollution and for journalists to report this news. In our view, the precautionary principle provides a legal lens through which we can litigate to give voice to these demands and to keep the thinking behind how to build back better in all its forms high on the political agenda. As such, the Good Law Project has recently brought litigation against the government based on this emerging evidence and based on this legal principle. ⁶

Conclusion

We believe that for climate change litigation to have a real impact, it must be sensitive to what is happening in the world around it. If that litigation falls too far behind public opinion it becomes unnecessary; but, on the other hand, if it gets too far ahead it becomes illegitimate and, in our view, if this happens it will fail. Between these two poles, we think, there is work for the law to do. That work, we see, is primarily done in the political domain and is of amplifying what is helpful and punishing that which is unhelpful.