CLINTEL goes to court

From CLlNTEL

Guus Berkhout
Marcel Crok

Earlier this week, CLINTEL submitted a petition to the European Court of Human Rights to be allowed to participate in a climate law suit initiated by climate activists against 33 countries. The case is known as the DUARTE case.

We previously filed a similar request, which the court denied without providing any reason. Important new information has become available, however, so we have gone back with a new request.

CLINTEL believes that the European Court of Human Rights should make decisions based on the best available science and the best policy analysis. The record currently before the court is incorrect and misleading. We intend to submit scientific information to the court to correct the record. For instance, the court believes that the so-called “climate emergency” is a scientific concept, which it is not.

In short, our submission will help the court to prevent the same kinds of errors that the Dutch Supreme Court made in the Urgenda case, on which the DUARTE case relies.

Our request to court can be found here.

Urgenda v. The Netherlands
In 2014, on behalf of all Dutch citizens, a climate action group called Urgenda started a lawsuit against the Dutch government to force it to adopt stricter emission-reduction (mitigation) policy. This lawsuit finally came to an end in December 2019. The Supreme Court in The Hague ruled that the Dutch government must indeed comply with Urgenda’s demands. The state was ordered to cut greenhouse gas emissions by 25% by the end of 2020. According to the court, climate change threatens the right to life laid down in the European Convention on Human Rights (ECHR). The court order has resulted in the government taking many of the additional mitigation measures required by Urgenda. These measures have imposed substantial additional expenses on Dutch citizens and produced a negligible effect on the global climate.

DUARTE et al. v 33 countries
Inspired by the Urgenda judgment, another climate case (the Duarte case) has now found its way to the European Court of Human Rights. Six young Portuguese, aged eight to 21, have petitioned the European Court in Strasbourg to protect their human rights against the dangers of climate change. The Court has the authority to hear complaints about violations of the ECHR. This treaty grants European residents fundamental freedoms and human rights, such as freedom of speech and the prohibition of torture. It also grants the right to life invoked in the Urgenda climate case.

The Portuguese plaintiffs are now demanding that no fewer than 33 countries, including the 27 member states of the European Union, Norway, the United Kingdom, Switzerland, Russia, Turkey, and Ukraine, take all necessary steps to limit the global temperature increase to 1.5 °C. This would be necessary, they claim, to guarantee their right to life, which would require a safe climate. In particular, they complain about the heatwaves, drought, and forest fires in Portugal in recent years, and suggest that these phenomena are causally linked to the “inadequate climate policies” of the 33 states concerned.

An extensive article about this case was published by Lucas Bergkamp and Katinka Brouwer earlier this year on the CLINTEL website. Bergkamp and Brouwer also worked on a very detailed report (summary already online) about this case that will soon be published by the ECR Group in the European Parliament. An interview with Lucas Bergkamp is available here.

Prior CLINTEL to the European Court
Earlier this year CLINTEL filed a request for leave to intervene in this case. The request was rejected without any reason being provided. We later learned that eight environmental NGO’s and human rights organisations were allowed to intervene. These organisations are all sympathetic to the complainants in this case.

This week, following the publication of a very important paper by Ross McKitrick, indicating that IPCC’s attribution methodology is fundamentally flawed, CLINTEL sent a new request to be allowed to intervene. This time, the court will have to take into account the urgency and importance of our intervention, given the misleading case record and incorrect statements made by the court’s President and Vice-President about the perceived “climate emergency.” We hope to receive an answer soon.

Enormous consequences for the economy and democracy
In the DUARTE case, the climate activists have made four demands: (1) a further reduction in greenhouse gas emissions, (2) drastic restrictions on the export of fossil fuels, (3) drastic measures to compensate for emissions associated with the import of products and (4) measures to force internationally operating companies to limit the emissions of their entire production chain.

In all these areas, emissions must be reduced to zero within a short period of time to meet the “climate emergency”. On the basis of a favourable judgement from the ECtHR, the climate movement will be able to litigate further at national level against countries that do not try hard enough to achieve these goals. The countries complained against will have no choice but to comply with the Court’s ruling, as no appeal is possible.

So the earning capacity of the entire economic system is at stake, as the costs for companies and countries to meet the requirements will be sky-high. Such a ruling would bring the economy in many countries to its knees, with all the consequences that that entails.

In addition to the economic impact, which is difficult to overestimate, the implications for democracy and the rule of law are also enormous. By ruling in favour of the plaintiffs, climate policy will be permanently removed from the regular process of political decision-making, where elected representatives and administrators can weigh up the various interests against each other, assess policy and make the relevant corrections and adjustments as needed.

From CLINTEL’s perspective, the most troubling aspect of this prospect is that judicial climate policy making tends to be based on a misunderstanding of climate science and the effects of climate policy making. That is why we want to intervene in the DUARTE case and correct such misunderstandings.

Human rights as a pretext
The DUARTE case illustrates how climate activists have found an ally in partisan judges with whom they share an ideological affinity. Under the guise of human rights, climate policy is being reduced to an irreversible judicial dictate based on flawed pseudo-science, over which no democratic control is possible. Judicial authorities that dictate policy to democratically elected governments are not applying laws but, rather, making them themselves. The judges concerned do not even bother to hide their bias; they distort the science and enact ineffective policies.

CLINTEL goes to court
For CLINTEL enough is enough. If activists use our judicial system to make climate policy, that leaves us no other choice then to also use all possible judicial means to repair this unfortunate development in society.

Accordingly, CLINTEL will be actively looking for opportunities to initiate or participate in climate change litigation. As always, we will promote the best available science and policy analysis in such law suits. If you support our mission and strategy, please consider a donation or become Friend of Clintel.

Guus Berkhout
Marcel Crok
Founders CLINTEL