18 February 2020

IBA unveils model statute to help citizens sue governments for climate change paralysis

The International Bar Association (IBA) has unveiled a model statute to help citizens in fight to halt climate change

Brussels, Belgium: students call for urgent measures to combat climate change during a demonstration.

Guidelines designed to help judges, policy makers and legislatures as well as citizens tackle climate change

The International Bar Association (IBA) has unveiled a model statute to help citizens launch legal challenges against their governments for failing to take action over climate change.

The Model Statute for Proceedings Challenging Government Failure to Act on Climate Change is being officially launched in London today by the IBA’s Climate Change Justice and Human Rights Task Force.

It provides judges, policy makers and legislatures with a ready-made legal framework to make it easier for citizens to take climate change-related action against their governments in the courts, a process the taskforce says is currently fraught with difficulty.

The statute provides ‘detailed rationales, precedents and 23 specific articles for reforms which will enable citizens to ask for judicial review of the sufficiency of their government’s climate measures and, where these are lacking, to assess whether more government measures are warranted under domestic laws’, according to the taskforce.

It is also hoped the statute will help citizens and environmental groups in their efforts to bring their governments to account.

The working group was co-chaired by David Estrin, a leading Canadian lawyer and academic and former partner at Gowling WLG, and Roger Martella, former general counsel of the United States Protection Agency.

“The law has a huge part to play in successfully addressing global climate change, but it is not always easy for citizens and communities to access their courts and assess government action, or the lack thereof,” said Martella.

“Simply put, this model statute levels the playing field. It provides much-needed process and access for government litigation to be heard, without prejudging the outcome of those cases under domestic laws."

According to the working group, governments have deployed various tactics to prevent cases reaching court, including that climate change is a policy issue and therefore not subject to legal challenges while litigation costs can have a chilling effect unless steps are taken to mitigate their impact.

Articles in the statue include Article 4, which provides for citizens to find an open courthouse door (‘standing’) to ask a judge to protect them from climate harm and  Article 16, which provides guidance on how to tackle common government defences.

In December Dutch firms NautaDutilh and Höcker helped secure a historic Supreme Court climate change ruling in the Urgenda case, in which court ordered the government to accelerate the country's emissions-reduction timetable

The model statute's publication follows a lengthy investigation by the IBA into the legal challenges posed by climate change.

In 2014 its Task Force on Climate Change Justice and Human Rights published the report, Achieving Justice and Human Rights in an Era of Climate Disruption. 

Meanwhile, a survey by Allen & Overy of company directors published in December found that climate change risk was moving up company boardroom agendas across the world.

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