Climate cases and the trias politica: are the dykes breaking?

Citizens and environmental organisations increasingly remind the government of its responsibility in the fight against climate change. Owing to growing awareness of this issue, climate cases are being brought before the courts all over the world. The difficult but extremely important question arises to what extent judges can compel the government to take certain measures without undermining the principle of the separation of powers.

Citizen participation in policy-making

Over the last half century, the ways in which citizens can participate in policy-making have grown. The ‘first generation’ of citizen participation provides for the ‘classic’ remedies available to citizens and duties of information on the part of the government. From the 1990s onwards, citizens have also been able to make their voices heard prior to decision-making. This is referred to as interactive policy-making. Around the turn of the century, a third generation was added. Since then, it has become increasingly accepted that citizens take the initiative themselves. On the one hand, participation is then no longer necessarily the result of the possibilities offered by the public body itself. On the other hand, it remains a form of participation, since the decision-making power stays with the government. This range of options means that today we can speak of a ‘participation society’. Within these options, however, recourse has lately often been had to bodies other than the decision-making body, in particular the courts, which does not always lead to obvious consequences.

Public interest litigation seeking a legislative injunction

A phenomenon that has long existed in the US and is gaining prominence here is public interest litigation. In it, private actors seek to enforce, through the courts, the protection of all kinds of societal interests, ranging from consumer, human and workers' rights to a healthy environment and animal welfare. These may be administrative or civil law proceedings, directed against governments or companies. Characteristic of such proceedings is that they transcend the private interests of those involved, are forward-looking and are often initiated by or with the support of interest groups. A court case can in this way set in motion an engine of change within society. All over the world, climate cases are being set up by various organisations: from KlimaSeniorinnen, which represents more than 700 elderly Swiss women, to Our Children’s Trust, an organisation defending the interests of young Americans.

Belgium too has its own Klimaatzaak (Climate Case). In 2015 the non-profit association of the same name summoned the three Regions and the federal State before the civil courts. According to Klimaatzaak, these four Belgian governments are negligent and fail to comply with their international obligations regarding emission reductions. Instead of claiming classic damages – which would not help the fight against climate change anyway – a legislative injunctionis sought. Among other things, the court is asked to order the defendants to reduce the total volume of annual Belgian greenhouse gas emissions by 2020 by 40%, or at least 25%, compared to 1990. This of course raises fundamental questions. Can the Belgian court grant this, or does it then risk stepping too far beyond the limits of its own power?

The separation of powers under pressure?

The principle of the separation of powers is not explicitly laid down in the Belgian Constitution. Nevertheless, from the fact that the Constitution distinguishes three organs with their own functions (legislative, executive and judicial), it is accepted that the trias politicaapplies in Belgium too. The three categories of organs cooperate, check and limit each other, so that none of them ever dominates. There is, however, no absolute separation, so that their powers are not exclusive and it is sometimes even better to speak of “cooperation” than of “separation”. This does not alter the fact that, for example, the principle that the courts may not substitute themselves for the government, as confirmed by the Court of Cassation in its judgment of 4 March 2004, remains important: "Even though Article 159 of the coordinated Constitution grants the ordinary courts the power

to review administrative acts for their legality, the legal principle of

the separation of powers still does not allow them to substitute their view for that of the government in determining the policy choice." In casu it concerned an appellate body that had had to rule on the distribution plan for Brussels-Zaventem Airport issued by the federal government. In its decision, the Brussels Court of Appeal specified the zones within which the flight routes had to be evenly distributed. According to the Court of Cassation, this ran counter to the separation of powers, resulting in the judgment being quashed. Could this be a harbinger of the fate of the claim for a legislative injunction of the Klimaatzaak association, or are times changing?

The Dutch Climate Case

Belgium is certainly not the only country where legislative injunctions and the separation of powers come face to face. Since the Klimaatzaak association drew inspiration from its northern precedent, it is interesting to examine how the Dutch court responded to this issue. The Urgenda Foundation sought an almost identical legislative injunction against the Dutch government and was proven right by the District Court of The Hague on 24 June 2015. The Court held that “(…) granting one or more parts of the claim may also have political consequences and to that extent may interfere with political decision-making. But in a state governed by the rule of law that is inherent in the role of the court vis-à-vis public bodies. Likewise, the possibility – and in this case even the certainty – that the issue is also and above all the subject of political decision-making is no ground for limiting the court in its task and power to settle a legal dispute.” Nevertheless, the Court requires “great restraint or even abstinence […] when it comes to policy-based weighing of divergent interests concerning the organisation or ordering of society. The court must be aware that it merely plays a role in a legal dispute between two or more parties.”

Ultimately, the court ordered the Dutch government to reduce greenhouse gas emissions by 25% compared to 1990. Moreover, the Court held that the “claim discussed here does not seek a command or order to the State to take certain legislative or policy measures. If the claim is granted, the State retains the full freedom, which is pre-eminently its own, to determine the manner in which it complies with the order concerned.” In other words, it remains for the State to determine the manner in which that percentage will be achieved. In this way, the court sought to strike a balance between too strict a conception of the trias politicaand far-reaching judicial activism. The case is now pending on appeal and may afterwards still go to the Supreme Court (Hoge Raad) in cassation. It is generally accepted that the Dutch government was (too) little aware of the civil law setting and put forward too few elements in the file on the basis of which the court could decide. The government will most probably no longer display such laxity on appeal. To be continued!

Climate cases in the US

In the case initiated by Our Children’s Trust too, the question arose whether the court could order the US government to change its climate policy without undermining the separation of powers. In the US, the trias politica is considered to be interpreted more strictly than in Europe. The “political questions doctrine” is accordingly invoked regularly, on the basis of which judges may only deal with legal and not with political questions. On the other hand, the US is also the cradle of public interest litigation, where it has been used since the 1960s for all kinds of purposes, including climate cases. On 10 November 2016 the District Court of Oregon handed down a decision that resembles the Urgenda outcome on several points. First, the judge states that “However, the scope of the political question doctrine should not be overstated. As Alexis de Tocqueville observed, "[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” This did not, however, come as a bolt from the blue. The political question doctrinehas its roots in the famous Marbury v. Madison case (1803) and was specified in the Baker v. Carr case (1962), in which the US Supreme Court listed six criteria for a political question to exist. In the present case, it was held that these criteria were not met and the court could therefore rule on the case. This fits within a general trend, also followed by the US Supreme Court, of applying the doctrine less strictly. That does not alter the fact that the District Court of Oregon concluded that “this Court would no doubt be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy. The separation of powers might, for example, permit the Court to direct defendants to ameliorate plaintiffs’ injuries but limit its ability to specify precisely how to do so.”

The fight against air pollution

The British environmental organisation ClientEarth likewise sought a legislative injunction requiring the government to revise its air quality plans so as to bring nitrogen dioxide limit values into line with the EU Air Quality Directive as soon as possible. The argument of the first-instance judge against granting a legislative injunction was that such an order “would raise serious political and economic questions which are not for this court”. ClientEarth's claim was consequently rejected both at first instance and on appeal because of its political nature. The UK Supreme Court, however, took a different view and held that the government was in breach of the directive concerned. In that same case, the Supreme Court referred a question for a preliminary ruling to the Court of Justice, to which the Court clearly replied that national courts are the appropriate bodies to enforce the Air Quality Directive by “taking any necessary measure, such as an order.” The Court went even further by allowing the national court to assess the content of an air quality plan drawn up by the government in order to determine whether the proposed measures are sufficient to achieve the air quality objectives as soon as possible. The Supreme Court ultimately granted ClientEarth's claim and ordered the government to draw up new air quality plans after all. The Supreme Court did not specify the content of the measures to be taken, leaving the government free to give substance to the legislative injunction itself. Here too, then, the court danced around the separation of powers. The Supreme Court exercised judicial review over the executive without intruding too abruptly into its domain of political decision-making.

The outcome set a precedent for other air pollution cases in the European Union, including in the Netherlands and Germany. Last March it also became known that Greenpeace is taking both the Flemish and Walloon governments to court, while a case brought by several citizens and ClientEarth against the Brussels regional government has already been pending for some time.

Conclusion

The principle of the separation of powers need not in itself be an absolute obstacle to granting a legislative injunction in climate cases. A basic tenet of the rule of law is precisely the existence of mutual checks between the three powers of the State, without however intruding disproportionately into each other's domain. A court can thus fulfil its task of judicial review over the legislative and executive powers, provided it does not take the seat of the administration. Where a legislative injunction is granted, the State therefore in principle retains, in the words of the District Court of The Hague, “the full freedom, which is pre-eminently its own, to determine the manner in which it complies with the order concerned.” It of course remains to be seen how the Urgenda case develops further and how the claims for legislative injunctions in the Belgian Klimaatzaak and the Swiss KlimaSeniorinnen case will be answered.

Bibliography

Cole, J. P., “The Political Question Doctrine: Justiciability and the Separation of Powers”, Parlementair Onderzoeksrapport 2014, https://fas.org/sgp/crs/misc/R43834.pdf.

Enneking, L. en De Jong, E.,“Regulering van onzekere risico’s via public interest litigation?”, Nederlands Juristenblad2014, volume 2014, nummer 23, 1542 – 1551, www.researchgate.net/profile/Liesbeth_Enneking/publication/269928216_Regulering_van_onzekere_risico's_via_public_interest_litigation/links/549956240cf22a83139534f4/Regulering-van-onzekere-risicos-via-public-interest-litigation.pdf

Lancksweerdt, E., “Burgerparticipatie bij grote infrastructurele projecten: een mogelijkheid tot burgerschap, samenwerking en creativiteit” in Vande Lanotte, J.,Goossens, J. en Cannoot, P. (eds.), Rechtsbescherming in het publiekrecht: kan er nog gebouwd worden in Vlaanderen?, Mechelen, Wolters Kluwer, 2016, 123-157.

Lancksweerdt, E., Handboek burgerparticipatie, Brugge, Die Keure, 2009, 654 p.

Lust, S., Rechtsbescherming tegen de (administratieve) overheid. Een inleiding, Brugge, Die Keure, 2010, 161 p.

Ryall, A., “Enforcing EU Environmental Law against Member States: Air Pollution, National Courts and the Rule of Law”, Eur. J. Risk Reg.2015, 305-308.

Soete, A. en Schoukens, H., "Klimaatverandering in de rechtbank. De rechter als scherprechter bij een falend milieubeleid?" NjW2016, afl. 338, 186-203, https://biblio.ugent.be/publication/6966719/file/7261053.pdf.

Taddei, U., “ A right to clean air in EU law? Using litigation to progress from procedural to substantive environmental rights”, Environmental Law Review2016, 3-7.

Van Den Broeck, J., Albrechts, L., Segers, R., Strategische ruimtelijke projecten: maatschappelijk en ruimtelijk vernieuwend, Brussel, Politeia, 2010, 318 p.

Klimaatzaak summons, https://www.klimaatzaak.eu/documents/dagvaarding_nl.pdf.

Urgenda summons, http://www.urgenda.nl/documents/DagvaardingKlimaatzaak19-11-13.pdf.

Urgenda judgment, https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7145.

https://www.ourchildrenstrust.org/

https://klimaseniorinnen.ch

Decision of 10 November 2016 in Juliana v. United States of America, https://static1.squarespace.com/static/571d109b04426270152febe0/t/5824e85e6a49638292ddd1c9/1478813795912/Order+MTD.Aiken.pdf

Productie door de burger: democratischer dan volksvertegenwoordiging, http://hdl.handle.net/11245/1.360705.

Judgment in the Dutch air pollution case, https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2017:10171

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