Nysten was inspired by the controversial case brought against the Dutch government by the Urgenda Foundation, a climate action group, together with nearly 900 citizens. According to Urgenda, the Dutch government was acting unlawfully by not sufficiently implementing climate policy. The case went all the way to the Dutch Supreme Court, which ruled in favour of Urgenda. In December 2019, the Supreme Court ruled that by the end of 2020, the Dutch government had to reduce emission of greenhouse gases by 25 percent compared to 1990.
“This was by no means the first or most interesting climate case, but it was the first to have such widespread media attention,” says Nysten, who has been researching laws around energy and the climate with the German Umweltenergierecht foundation since 2019. “Colleagues would constantly ask me questions about the case, because I am well versed in Dutch law.” To be expected, as she did study law at Maastricht University fifteen years ago. “All those questions made me want to know everything about climate cases. I thought, this is a topic for a PhD.” And so she turned thought into action. Last Tuesday, she was back in Maastricht as an external PhD candidate to defend her doctoral thesis.
Lecture the government
Her primary research question: what can we expect from such cases? While proponents view them as an ideal means to force politicians and companies to take action, opponents feel that it is not in the judges’ remit to lecture the government. After all, it is up to politicians to set policy. “There are many strong opinions, in academia, too, but I wanted to look at it from a neutral perspective. Courts have the power to interpret laws. How far can they take that power, where is the line?” In order to find out, Nysten explored the literature and examined cases from around the world.
Her first conclusion was that there is definitely room for interpretation. “For example, a civil law that states you cannot cause harm to others. Would that be considered the case if you don’t do anything to prevent climate change and there are serious consequences as a result? Broadly formatted laws are often not clear on that issue.”
Refuse to pay
In other words, climate law suits are justified. But has anybody actually succeeded in changing anything yet? “There is no simple answer to that question. After all, that differs per country and per case.” So Nysten divided cases into four categories, each with their own opportunities and shortcomings.
First, the cases brought against states, through an international court or tribunal. In those cases, the autonomy of nations may be a limiting factor, says Nysten. “For example, in 2022, the United Nations Commission on Human Rights ruled that Australia – which produces a lot of greenhouse gas emissions – had failed to protect the inhabitants of the islands in the Torres Strait against the consequences of rising sea levels. The judgement was received with much enthusiasm but ultimately changed very little. Australia acknowledged it has a duty to protect the islanders, but refused to pay any compensation. And that’s legal, because the UN commission has no means to force a country to pay.” International institutions always have to find a balance. “They want to make a point, but not be so firm that a state refuses to abide by the ruling.”
Separation of powers
The other three categories are at a national level: cases against judicial powers, executive powers or private companies. In all three cases, the degree of success depends on the prevailing view on the separation of powers in a country, says Nysten. “That can vary widely, and public opinion also plays a huge role. There are examples in Pakistan and India where we might feel the judges went too far, but many citizens aren’t worried, as confidence in the judges there is generally high, and confidence in politicians very low. Almost the opposite can be seen in the United States nowadays: people there are less likely to trust the Supreme Court and it is more easily accused of making – and thus no longer simply interpreting – the laws.”
There are even considerable differences between the Netherlands and Germany, for example when it comes to cases on legislation. “In Germany, there is a constitutional court that tests the laws and it is normal that citizens submit cases there. The Netherlands doesn’t have anything like that. That’s why the Urgenda case was so different to cases in Germany.”
Shell
Although Nysten does see more potential in cases against the government than against private companies, such as the recent case of Milieudefensie v Shell. “It is something of a deviation. You can’t trust in it entirely. Politicians might think, ‘Hang on, we’re the ones who tell companies what they can and can’t do’ and change the law.” Nevertheless, companies can start to bear it in mind. “These cases can take years and they do come with financial risk. There may come a time when a company might prefer not to get burned by the consequences.”
In other words, law suits are not a “magic bullet” for combatting climate change, concludes Nysten. “They’re just one part of a larger puzzle. In the end, it’s about working together. That applies to politicians, policy makers, and companies, but also to ordinary citizens.”