Perspectives on climate change litigation

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Perspectives on

climate change

litigation

Lieke Geene. 12309397 28-05-2021 Crelis Rammelt

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This research aims to understand the perspectives and motives of actors who play a role within the process of climate change litigation. This research zooms in on three cases. These are; Urgenda vs. Dutch state, Milieudefensie vs. Royal Dutch Shell, and Youth for Climate vs. 33 European countries. These three cases are discussed with the participants and the perspectives and motives of the participants on climate change litigation, in general, are discussed. The research aims to explore the legal opportunity structures of these types of cases. The research has been conducted with the usage of in-depth qualitative interviews. These interviews have been analyzed using coding. The actors who were not able to participate in an interview are represented with the usage of press releases.

The paradigm of environmental justice is used. This is a frame that uses discourses about injustice as an effective mobilizing tool. This paradigm is used because it is a large part of the environmental discourse. The results have pointed that the grounds of human rights are showing the severity of the current climate situation. The human-rights grounds in these cases have also shown the anthropocentric perspective. These cases are very human-centered. The study has also indicated that climate change litigation will continue to grow. The inequalities that climate change causes are also a large part of this study and all the participants agree upon the matter of wanting more climate action. Even, with the horrendous situation that climate change creates, these cases generate inspiration and hope.

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Introduction

The effects of climate change are globally visible. There are more spikes in rainfall, glaciers are melting, temperatures are rising, and biodiversity is declining (Jentsch, 2008). NGOs have been advocating for more climate action by governments, industries, and companies. Many countries did sign the Paris Agreement (COP21) in 2015 but still are barely adjusting to stay within the threshold of rising 1,5 degrees Celsius globally. The Paris Agreement is an accord between many countries to battle against global warming (Klimaatconferentie Parijs 2015 (COP21), z.d.). The transition to a green way of living has proved to be hard. The outcomes of the Paris Agreement were celebrated. However, the critique on the Paris Agreement is the thought that the agreements are not strict enough to mitigate climate change. In the Paris Agreement the sectors of aviation or navigation are seen as very polluting

(Klimaatconferentie Parijs 2015 (COP21), z.d.).

The Netherlands also set national goals to reduce greenhouse gas (GHG) emissions. There is a Dutch climate law that states how much the Netherlands need to reduce their GHG emissions. In 2020, the goals of the Netherlands were to reduce their GHG emissions by 25% in

comparison to the emissions of 1990. In 2030, the reduction of GHG emissions need to be 49% (Ministerie van Infrastructuur en Waterstaat, 2020). Planbureau voor de Leefomgeving (PBL) has analyzed that postponing the goals for reduction of emissions for 2020 and 2030 will lead to more climate risks (Planbureau voor de Leefomgeving, 2013). The goals for reductions will be postponed and will not be compensated. The goal of 2050 will remain. The expectations of 2030 are a reduction of 43% to 48% in comparison to 1990, while the goal is a reduction of 49%. The goals of 2020 are also not met. In 2020 there was a reduction of 15% whilst the goal was 25% (NOS, 2019).

Urgenda, a Dutch environmental organization, has filed a lawsuit against the Dutch state since the climate action to achieve the goal is not sufficient. The case took a long time but the verdict by the highest Dutch judge ruled in favor of Urgenda. The judge ruled that human rights are violated when climate action is lacking. This one of the most known climate change litigation cases (Mommers, 2021). Another well-known cases are Youth for climate justice which filed a complaint against 33 countries for taking insufficient climate action before the European Court of Human Rights (ECtHR) (Christiaens, 2021). This is the first case brought for the ECtHR. This case is still in the procedure. Another well-known case is Dutch

environmental action group Milieudefensie against Dutch Royal Shell. Milieudefensie filed a lawsuit against Shell on the matter of contributing to climate change whilst knowing the hazardous effects and are not sufficiently combating climate change (Milieudefensie, 2020). These three cases will be researched in this study. The study will focus on the perspectives and motives of various actors who have played a role in one of these cases. These cases have in common that they are built upon the grounds of the European treaty of human rights.

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Figure 1: Natural Justice. The Economist, 2017

This thesis focusses on a set of different actors within the process of climate change litigation. These are; Ms. Minnesma of Urgenda, Mr. Vermeulen of Nautadutilh, Mr. Chahim of the European Union, and Mr. de Rijk of Milieudefensie. The three climate change litigation cases they play a role in will be examined in particular. Moreover, the perspectives and motives of these participants on climate change litigation in general will be central in this study. The perspectives and opinions of these actors are analyzed using in-depth interviews. These participants will generate insights in the factors that influence their perspective on climate change litigation.The defendants of the three cases are researched by using press releases on their websites. The cases all have used the grounds of human rights. The European treaty of human rights is the groundwork of climate change litigation. The lens of environmental justice (EJ) will be used. EJ considers a link between unequal exposure to environmental hazards and ethnic or class differences within a community (Mohai, Pellow & Roberts, 2009). There is a debate if EJ is achievable in a capitalist economic system. Capitalistic processes put extra pressure on the climate, which increases environmental problems and inequalities (Bell, 2015). The analyzation of the perspectives of the actors will be sorted in categories. These categories are; future of climate change litigation, climate impact & responsibility, and time & urgency.

The main question:

What are the perspectives and motives of the participants on climate change litigation?

This main question will be researched with the following sub-questions:

What is the future, according to the participants, of climate change litigation?

What is the relation between climate change litigation and inequality, division, and climate impact?

What is the relation between climate change litigation and time?

This thesis aims to understand the perspectives and motives of the parties involved in the litigation process. The theory of environmental justice will be used as a lens in this research. The scientific relevance is based on the research direction of the research by Vanhala & Setzer (2019). The fields that need exploration are; how does litigation interacts, influences, and is shaped by policy process and how legal opportunity structures are shaped by key actors, such as NGOs and governments (Vanhala, 2013). This thesis aims to contribute to

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these questions by researching the perspective on climate change litigation. The societal relevance of this thesis is the contribution of knowledge of how this tool is used most

effectively which will help NGOs to understand the process and the goals of climate litigation cases.

The outline of the thesis is; firstly, theoretical framework, secondly methodology, thirdly results, fourthly discussion, and lastly the conclusion. In the theoretical framework the concepts environmental justice and climate change litigation will be discussed. The

methodology will zoom in on the details of how this research is conducted. The results will show the outcomes of the conducted research. The discussion will focus on the implications and suggestions for future studies. The conclusion section will summarize and reflect on the research.

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Theoretical framework

This section will discuss the underlying concepts, theories, and drivers of climate change litigation. This section will generate more background information to support the study. Firstly, the concept and movement of environmental justice will be discussed. Secondly, climate change litigation and environmental law will be discussed.

Environmental justice

Concept explained

Environmental justice as a concept, term, movement, and theory has many possible

definitions. Firstly, the usage of justice within this concept needs to be defined. The concept of justice within the political society is defined in terms of distribution of goods (Schlosberg, 2009). The theory of justice commonly used is made by John Rawls (2020). He described justice as a society of free citizens holding equal basic rights and cooperation within an egalitarian economic system. ‘Justice’ in the concept of environmental justice is related to the cultural and racial barriers to individuals and communities (Pulido, 1996). The concept justice in ‘environmental justice’ is used as an argument for distribution, recognition, participation, and capabilities within the movement (Schlosberg, 2009). Secondly, the movement of environmental justice needs to be explained. Environmental justice is a concept and a movement. The movement of environmental justice looks for the evidence where their understanding of justice is used into practice. Therefore, the movement of environmental justice adds to the justice discourse due to their wide range of definitions. As was stated before, environmental justice does not only focus on the individual but also communities (Pulido, 1996). Environmental justice movements explore, represent and demand justice, such as fair distribution, recognition, capabilities, and functioning for individuals and communities (Schlosberg, 2009). These movement are mostly defined as plural, inclusive, and broad. Climate injustice is focused on the cost and benefits distribution between parties (Comim, 2008). It also has a focus on understanding how climate change impacts poverty and human development. The distribution between which countries are responsible for emissions and countries who suffer from hazardous effects of climate change is uneven. The cost and benefit asymmetries are adding to the inequality which already exists in the societal and economic aspects of this world. The impact of climate change on human development does not seem positive (IPCC, 2007). The predictions are that the long-term effects of climate change will increase risks for humans. The most important climate injustice is the loss of freedoms. The impact of Co2 emissions on individuals living today and on all the individuals who are living in the future is very large and they are going to live with less freedom (Comim, 2008). Climate change is a global problem and especially has implications for developing countries who are more prone for natural disasters.

Climate change litigation

Concept explained

The concept climate change litigation covers a variety of cases. There is also a variety in wanted outcomes. Therefore, the cases are designed in different manners. Some cases go beyond individual litigants bringing the case and seek progress in climate policies. Other goals for outcomes of these cases are; to drive behavioral shifts by key actors, to create awareness, and encourage public debate (Setzer & Byrnes, 2020). Therefore, climate change

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litigation cases have strategies about who, where, when the case will be filed. This type of litigation has the term ‘strategic litigation (Ramsden & Gledhill, 2019). Another type of climate change litigation is also the cases that include civil or administrative procedures for private interests. Therefore, not all climate change litigation seeks social change or wants to impact society. This thesis focuses only on climate change litigation in which the litigants are NGOs and the goal of the case is to impact society.

Recent developments

Climate change-related loss and damage to nature are increasingly coming to the attention of courts (Setzer & Vanhala, 2019). The strategy of NGOs and other interested parties has shifted from only campaigns and boycotts to the legal department. Recently, courts have a more visible role in the debates about climate change mitigation and adaption (Christoff, 2016). Urgenda successfully compelled the Dutch state to undertake more sufficient action to address climate change. After this high-profile case there has been a spike in published journal documents (Bergkamp & Hanekamp, 2015).

The debate about climate change litigation also considers the question if it is either advancing or delaying the effective action on climate change (Setzer & Byrnes, 2020). There has been a set of developments in arguments by the litigants. Firstly, human rights arguments are used as support in an increasing number of cases. The Urgenda case is one of the successful cases in which on the grounds of human rights the Dutch government was compelled to reduce their emissions. Unsuccessful cases on these grounds might lead to indirect impact on future litigation (Setzer & Byrnes, 2020). Secondly, various strategies are used against major fossil fuel companies. The strategies against these companies are; nuisance and fraud claims,

disclosure-related claims, and claims against deceptive ‘greenwashing’ marketing campaigns. Environmental law

Environmental justice is seen as an important development of environmental law

(Rechtschaffen, Gauna & O’Neill, 2009). Environmental justice is interdisciplinary because it integrates many different levels of environmental problems. Environmental justice has a focus on distributional and participatory justice implications and has also confronted these themes, which raised the broader social justice considerations (Cole & Foster, 2000). Environmental justice has influenced environmental law on a set of different forms. The first and most important form of environmental justice are grassroot actions (Kaswan, 2017). Grassroot actions are citizen groups who use legal and political initiatives for environmental challenges. A second form of influence from environmental justice on environmental law is the outcome that several environmental justice principles have been integrated in environmental law.

Climate change litigation happens on different grounds. Firstly, claims on industries,

governments, and companies on the grounds of the no-harm principle. The no-harm principle means that states must ensure that their activities do not cause significant environmental damage. The no-harm principle is seen as the cornerstone of international environmental law (Mayer, 2016). Secondly, climate change litigation cases can also be claimed on the principle of the polluter pays (Mommers, 2021). In 1972; the Organization for Economic Cooperation and Development (OECD) announced the polluter pays principle, which stated that the polluter should bear all the expenses of pollution control measurements decided by the public authorities (Gaines, 1991). Lastly, human right grounds. The ground of human rights is used when hazardous climate change could take away the human rights of citizens. Hazardous climate change could endanger the human rights of the section of freedom and peace. The three cases of this study are based upon the human-rights grounds.

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Conceptual framework

The concepts of environmental justice and climate change litigation are closely linked. The movement, perspective, and literature influence of environmental justice influences the theory and practice of climate change litigation. Climate change litigation influences environmental law. The practice of climate change litigation cases generates new knowledge and

developments for environmental law. Environmental law influences the way of how climate change litigation can be used in different situations.

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Methodology

Research strategy

This thesis investigates the question of; what are the perspectives and motives of the

participants on climate change litigation? This main question is answered with the help of

several sub-questions. These are;

What is the future, according to the participants, of climate change litigation?

What is the relation between climate change litigation and inequality, division, and climate impact?

What is the relation between climate change litigation and time?

The main and sub-questions are answered with qualitative research tools. Qualitative research explained & applied to this study

Qualitative research implies that within this study the emphasis lies on words rather than quantification in the collection and analysis of the data (Bryman, 2012). Qualitative research has three features. Firstly, this thesis is qualitative due to the inductive view of the

relationship between theory and research. Secondly, the emphasis within this thesis relies on the interpretation of the participants of the research area. This has generated an understanding of the social world by the participants. This epistemological position is typical for a

qualitative research (Bryman, 2012). Lastly, the ontological position within this study is described as constructionist. A constructionist position implies that social properties are outcomes of interactions between individuals (Bryman, 2012).

The application of qualitative research on this study is conducted with in-depth interviews in which the participants were able to show their interpretation of the subject. This indicated which aspects of the subject are more or less important for each participant.

Time & resources used

The stated time for this study is three months. These months are used to generate an interview guide, which will differ per discipline, contact the interviewees, and to analyze the results. Resources needed are mainly; laptop, internet, scientific data, zoom (to conduct the interviews), and grey data.

Philosophical underpinnings of the researcher

This research is of qualitative nature, which implies that the researcher has a

phenomenological position. The researcher is aware of her own vision on the world.

Therefore, the ontological and epistemological position of the researcher will be as minimum as possible. The position of the researcher in this study is constructivistic because it is a qualitative study which uses interviews. Constructivist position refers to the study which values the participants social and historical interpretation.

Environmental justice paradigm

Environmental justice can be used as a paradigm to look at the world. A paradigm is a

universally recognizable scientific achievement that, for a time, provides model problems and solutions to a community (Kuhn, 1976). The environmental justice paradigm is a frame that uses discourses about injustice as an effective mobilizing tool (Taylor, 2000). Environmental justice has become a large part of the environmental discourse. When using a social

constructive perspective on environmental problems it means that they are socially

constructed claims defined through collective processes (Taylor, 2000). In other words, the environmental problems we face are seen from the perspective that humans have constructed

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these problems and that environmental problems are not static. The constructionist

perspective used in this paradigm is concerned with how people assign meaning to their social world (Hannigan, 1995).

Data collection

This thesis has used semi-structured interviews. Semi-structured interviews are a common method to collect data (Taylor, 2005). In the context of this thesis it is key to see what the drivers of NGOs are to use climate change litigation as a strategy for climate justice and to mitigate climate change. Semi-structured interviews are used when the researcher wants to obtain the perceptions and opinions of the interviewee, which is the case in this study. It generates guidance about the topics covered by each participant but it is still flexible (Holloway & Wheeler, 2010). An interview guide consists of five phases (Kallio, Pietila, Johnson & Kangasniemie, 2016).

1. Identifying the essentials for using a semi-structured interview 2. Gaining and using previous knowledge

3. Formulating a preliminary semi-structured interview guide 4. Testing the interview guide

5. Presenting the complete interview guide

These five phases will be discussed in this section. In each section, the method and structure of the phase and the application of these techniques will be discussed.

The first phase is used to determine if the previous knowledge about some areas of the subject is correct (Turner, 2010). Semi-structured interviews are proven to be an appropriate method when the researcher wants to gain people’s perceptions and opinions (Barriball & While, 1994). A semi-structured interview also shows what is meaningful for the participant (Cridland et al., 2015).

In this research it is appropriate to use the method of semi-structured interviews because the opinions of the participants. The emphasis these participants have put on certain topics or questions is necessary to find out what the underlying drivers are for a climate litigation case.

In the second phase it is crucial to gain an adequate understanding of the subject. Previous knowledge will generate a fixed framework for the interview (Barriball & While, 1994). In this phase the most common way of gaining knowledge about the subject is to do a literature review with a focus on the goal of the study (Kraus et al., 2009).

Literature review is used in this study about climate litigation. A study was conducted on the process of climate change litigation, about the litigation cases by NGOs, about the outcomes of these cases, and about the movement of environmental justice.

The third phase is constructing an initial semi-structured interview guide. The initial interview guide is just a tool for collecting data. It is built upon the previous knowledge and is structured in a coherent and structural manner. The interview guide consists of question which direct the answers of the interviewee to the research topic (Krauss et al., 2009). There is still room for dialogue and changing of the order of the questions due to the flexible structure of the interview guide. The guide consists of two levels of questions. The first layer are the main themes and the second layer are the follow-up questions. In the main themes the interviewee is encouraged to talk about experiences and perceptions. These questions will be asked to all participants to gain different answers about the main topics (Asted-Kurki & Heikkinen, 1994). This is the main content of the research. The follow-up questions are used for different goals.

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These questions are used to maintain the flow of the interview (Whiting, 2008), to make the main themes easier to understand for the participant (Turner, 2010), and to direct the

conversation to the study subject (Baumbusch, 2010). Follow-up question can be spontaneous or pre-designed.

In the study that this thesis has conducted an initial framework for the interview consists of a set of questions about the main theme; climate change litigation. The main questions considered the process of litigation in the context of future of climate change litigation, urgency and time in this matter, and climate impact and responsibility in this matter. The up questions were partly pre-designed and partly spontaneous. The follow-up questions pushed the participants to stay on these topics, and asked for clarification when that is necessary.

The fourth phase is testing the initial interview guide. This phase is just for testing if the questions are relevant and if the coverage confirmed. By testing the interview guide changes can be made and the quality of the data collection can be improved (Chenail, 2011). Testing of the initial interview guide is called internal testing. Internal testing is conducted with other researchers on the team to check for a bias (Chenail, 2011). Internal testing also provides information about the ambiguity of the interview questions and if there are inappropriate questions.

This thesis used testing of the initial interview guide to gain the best quality of data collection. The form of testing that is used is internal testing. Internal testing is reachable because the supervisor will test the interview guide. Internal testing is the best option for this research because the research has a bias. The bias is built in the research due to the fact that not all actors within the climate change litigation cases are represented. This generated insights from the perspective of the plaintiffs and not from the defendant. Moreover, internal testing shown if the possible ambiguities and inappropriate questions. After the testing the feedback will be incorporated for a better interview guide.

The last phase is presenting the semi-structured interview guide. This guide is

structural, clear, and based on the previous phases. The reflection on the previous phases has created a process and the process is used to generate a semi-structured interview guide.

The semi-structured interview guide for the interviews with NGOs, European Union, and lawyer’s office that worked on the Urgenda case against the Dutch State consists of the two layers of questions. It generated an overview of the topics of the research and has pre-designed follow-up questions but also leaves room for spontaneous follow-up questions. In the following section the interview guide will be presented.

Data analysis

The interviews have created a large and rich data collection. However, the richness of the data makes it complex to analysis. Therefore, the researcher will guard against failing to carry out a true analysis. Qualitative data analysis has not reached a high degree of codification of analytic procedures, which quantitative data did reach. However, a high degree is not desirable according to many writers (Bryman & Burgess, 1994). Qualitative data analysis does provide broad guidelines (Kelly, 1994). This section will discuss the usage of grounded theory and coding within this study.

Analytic induction and grounded theory are the two most common frameworks to guide the analysis of data (Hycner, 1985). These two strategies of qualitative data analysis are often described as iterative, which means that there is a repetitive interplay between data collection

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and analysis (Bryman, 2012). This implies that data analysis starts when some of the data is collected and the implications of the data analysis will shape the next data collection process. Therefore, these strategies can be viewed as data analysis strategies and data collection

strategies. This thesis will use grounded theory. Grounded theory is not a straightforward method and has changed over time (Bryman, 2012).

When all the interviews are conducted these will be transferred into transcripts. These transcripts will be coded. Coding within the concept of grounded theory is open. Therefore, the researcher will give labels to the components that seem to be significant to the researcher. This study has not focused on social words but has only looked for the potential theoretical significance within these transcripts. Coding of this qualitative data is a form of analysis in which there is a state of potential revision and fluidity (Bryman, 2012). The transcripts are seen as potential indicators of concepts and these indicators will be compared.

The coding process of this thesis consists of two phases. Firstly, open coding is that the irrelevant information is deleted from the transcripts and the relevant information is labeled into concepts which later will be categorized into groups. These labels will be given meaning to understand the interpretation of the concepts. Secondly, axial coding is conducted. In this second process the labels will be categorized into groups. The labels will be compared to each other and will fall into groups. The codes or labels are linked to contexts, consequences, patterns, or causes. In this process, some of the categories will be saturated and some of these groups will become core categories. This thesis focusses on three core categories, which will also shape the results section and help structure the conclusions.

Limitations

In this section, the limitations of the research will be discussed. Firstly, the initial idea for this thesis will be discussed. Secondly, the process to the conducted research will be discussed. Lastly, the limitations of the conducted research will be discussed.

The initial idea for this thesis was to research the perspectives of NGOs on the potentials of climate change litigation. A set of NGOs would have been interviewed to generate a set of data from this type of actor. The research would be limited to the perspective of only the environmental NGOs, which are the litigants. The research proposal focused on the NGOs that have a litigation case that linked to the environment. The defendant within these cases differed. The cases vary in content, from cases about pollution and emissions, to cases about climate policies. The urgency of climate action is one of the main reasons the researchers has started this study. The initial studies also focused on climate change litigation as a strategy of NGOs to force companies, industries, and governments to act upon the climate crisis. The research proposal was mainly focused on NGOs that have litigated a case which was linked to the climate. This type of actor changed due to the fact that environmental NGOs have a busy schedule and therefore it would be very difficult to get four interviews with different NGOs. The focus on the research question did change to actors who are involved in the process of climate change litigation.

The process to the current research has shifted a great deal. The actors have changed, the research question have changed, and the aim of the research also changed. The initial idea shifted from searching for an effect that climate change litigation has created to looking for the perspective of certain actors within this type of litigation. The research did stay the same in methods. The initial idea was to conduct semi-structured interviews and this was

conducted. However, the interviewees did change. Many different NGOs that have litigated or supported a climate change litigation case have been contacted but not many reacted. This is

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the reason that the focus shifted away from just looking at the perspectives of NGOs and started looking at the other actors. However, within a climate change litigation case not all have been interviewed. This research conducted interviews with Marjan Minnesma of Urgenda, with Mohammed Chahim of the European Union, with Peer de Rijk of

Milieudefensie, and with Freerk Vermeulen of Nautadutilh. This is a wide range of actors within the process of climate change litigation. To start with Urgenda and Milieudefensie. These are both environmental organization who have started a climate change litigation. The defendants did differ. Urgenda filed a lawsuit against the Dutch State for a not participating enough according to the Paris Agreement. Milieudefensie has filed a lawsuit against Royal Dutch Shell due to the emissions they produce. Secondly, sir Chahim is the party which receives climate change litigation from the NGOs. Lastly, sir Vermeulen who was the lawyer in the case of Urgenda against the Dutch State. These three parties all play a large role in the process of climate change litigation.

Data collection methods and procedures influence quality and trustworthiness of the data (Kitto et al., 2008). The limitations to this research are that not all actors are interviewed. None of the defendants were interviewed which can generate a one-sided perspective on the perspectives, process, and insights of climate change litigation. Moreover, all of the

interviewees had a role that aimed to create more climate action. This shared goal can indicate a certain perspective of the development of climate change litigation.

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Results

The conducted interviews have generated an overview of perspectives and motives by a variety of actors within the process of climate change litigation. All the actors have different roles. There have been similarities between the perspectives of the interviewees as well as differences. The similarities between the two NGOs, which are also the litigants, have been more visible. Within this thesis, there are three climate change litigation cases discussed. These are the case between Milieudefensie and Royal Dutch Shell regarding the co2

emissions of Shell and the responsibility they carry, the case between Urgenda and the Dutch state regarding the reduction of emissions and the Paris Accord, and the case of Youth for Climate against 33 European countries for too little climate action. All of these climate change litigation cases are discussed, the general idea of climate change litigation is discussed, and the perspectives on this type of case are discussed. The interviews have generated three main topics. The topics are the future of climate change litigation, climate impact & responsibility, and time & urgency. These three main topics will be elaborated on with the results of the interviewees and using press releases of Shell and the Dutch state. This section will discuss the following. Firstly, the topic of perspective on the future of climate change litigation will be discussed. Secondly, the topic of climate impact and responsibility will be discussed. Lastly, the topic of time and urgency will be discussed.

Future of climate change litigation

Climate change litigation has developed greatly due to the verdict of the highest Dutch judicial authority during the Urgenda case. In this case, the highest judge of the Netherlands has adjudicated that the Dutch state was harming the human rights of the Dutch citizens by not take adequate measures against hazardous climate change. The interview with Marjan Minnesma of Urgenda has shown a few core points. Firstly, the case of Urgenda was built upon the duty of the Dutch state to protect its citizens. The protection of the Dutch state should also be maintained with climate change. She indicated that this was a new

development within climate change litigation. “The new thing here was that we said that the state has a duty of care to protect its citizens and therefore needs to act according to its own minimum norms, in this case 25% less emissions of greenhouse gasses in 2020. We

demanded from the judge to make this 25% a minimum obligation for the government to reach.” (M. Minnesma, personal communication, April 22, 2021). This quote shows that Mrs. Minnesma has set the first of many future cases against governments all over the world. Secondly, the climate change litigation case had one big advantage. The judge could order the Dutch state to undertake sufficient action and meet their own climate goals. However, these cases take a lot of time and time is a crucial element with climate change. This case has been used as an example for many other countries to litigate their governments. Lastly, Mrs. Minnesma shared her insights on the environmental movement. She told in her interview that the environmental movement is becoming a broad and diversified movement that can pressure the government.

The Dutch state has also been researched by using press releases on their website. The Dutch state has declared that they went into the highest court due to the freedom of policy-making of the cabinet. When they lost it had according to the Dutch state “it will have consequences for the future cabinet and climate policies” (Rijksoverheid, 2018). Another development after the Urgenda case was the extra measurements that the Dutch government took due to the

adjudication to reduce emissions.

Mr. Freerk Vermeulen of Nautadutilh, a big law firm in Amsterdam, has also shared his insights upon the Urgenda case. Sir Vermeulen was the lawyer in the cassation appeal of Urgenda. In the Netherlands, there are three types of court. The last and highest court is the

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cassation appeal in which the application and interpretation of the laws and judicial grounds are discussed. Vermeulen shared his insights about the judicial grounds of human rights. The cassation appeal had the outcome that the Dutch government violated human rights. As Vermeulen said “Still, it was very new and exciting if something would happen with the human rights grounds. These grounds do not only apply nationally but for all the states of the European Council. Therefore, the importance of this case grew due to the possible impacts on other countries” (F. Vermeulen, personal communication, May 10, 2021). Vermeulen showed with this statement that if the judge would approve of the human rights grounds it would have many implications for other European countries due to the shared European treaty of human rights. This did have effects on other countries. France and Ireland also have litigated their governments and won. Vermeulen asked the question “would those judges have been comfortable if the verdict of Urgenda was different?” (F. Vermeulen, personal

communication, May 10, 2021). Another development, according to sir Vermeulen, that has implications for the future of climate change litigation is that the high council of the

Netherlands seems careful with these types of verdicts.

Milieudefensie, a Dutch environmental NGO, has also shared their insights about climate change litigation in general and in particular about their case against Royal Dutch Shell (RDS). The case between Milieudefensie and RDS has recently received a verdict. Milieudefensie won, but RDS will undoubtedly make un appeal in this case. De Rijk has shared his insights upon the possible future of climate change litigation if the judge adjudicates that RDS needs to make a policy change and reduce emissions. Just like the Urgenda case, de Rijk thinks that if the case is won by Milieudefensie many other

organizations would start similar cases. He also states “Many companies are not waiting for a trial against them and will change a lot faster” (P. de Rijk, Personal communication, April 26, 2021). De Rijk thinks that if this verdict works out to the advantage of Milieudefensie it would have “gigantic consequences” not for only RDS but also other companies. A second insight that de Rijk has shown refers to the usage of the human rights grounds. He thinks that the human rights grounds can also be applied to the situation with RDS. Therefore, he says that RDS cannot knowingly put people in danger. The last insight de Rijk has generated is that the future of climate change litigation lies in better regulation and laws.

The perspective of RDS has been researched by using press releases on their website. RDS states “In our Statement of Defence, we respond to these points and explain that in order to reach the goals of the Paris Climate Agreement (which applies to states, not private actors), governments must set targets and proper energy transition policy as they deem appropriate for their countries (which will drive change in consumer and industry behavior) as opposed to private parties seeking to use court proceedings to extend the law beyond its prescribed limits” (Royal Dutch Shell, 2020). RDS states here that the government should have set regulations and rules which indicates that they do not think they carry responsibility because they do business within the regulations of the Dutch state.

The last participant is Mr. Mohammed Chahim of the European Union. The European Union has received a case of Youth for Climate against 33 European countries for not taking

adequate measures against climate change. Chahim also said that the future of climate change litigation lies in climate law. He thinks that when a strict climate law is applicable for all European countries, it is still possible to file a lawsuit, but it would be easier for a judge to rule upon this matter. According to Chahim, a climate law for all European countries is the future of climate change litigation.

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Climate impact and responsibility

The climate impact is distributed unevenly across the globe. Countries that experience more hazardous effects of climate change are not per definition the ones who have created it. This topic contains the opinions and perspectives of the researched parties about the distribution of climate change effects and who should take responsibility.

Mrs. Marjan Minnesma holds the government responsible for insufficient climate action. She states “we have to stop using fossil fuels sooner than the stock runs out and thus far

governments do not seem willing to do that” (M. Minnesma, personal communication, April 22, 2021). This quote indicates that she thinks that the Dutch government is responsible. She also generated insights about the distribution of climate change effects. She stated “it is so harsh that climate change hits the hardest on the places that have not induced climate change the hardest” (M. Minnesma, personal communication, April 22, 2021). She elaborated upon the fact that the impact of climate change has an uneven distribution in a geographical manner, intergenerational manner, and wealth manner.

Vermeulen shared insights on the distribution between countries. He stated that the

distribution of responsibility between the Netherlands and other countries needs to be similar due to the costs of becoming more sustainable. The Dutch state does think that they take responsibility and think that they have an ambitious climate plan. However, Planbureau voor de leefomgeving (PBL) created a report in which they state that the Dutch government will not be able to meet their goal of a 25% reduction in 2020. Therefore, the Dutch state took more measurements to achieve the goal. This shows that they do take responsibility and try to meet their goals. However, they did take extra measurements after the Urgenda case.

De Rijk has shared his insights on the matter of who should take responsibility. He said that “we have let the question at the court and hope that they will take responsibility and see an opportunity to act” (P. de Rijk, personal communication, April 26, 2021). This shows that a certain amount of responsibility to act upon the problem of emissions of Shell lies with the judge. He also stated that Shell is main responsible due to the high amount of emissions. He thinks that Shell should feel connected to the European treaty of human rights and therefore take responsibility. His insights on the matter of climate impact are more or less similar to Urgenda. He also indicated that inequality due to the hazardous effects of climate change is situated geographically, and influenced by wealth, gender, and race.

Shell stated that they take responsibility because of their ambitions. They have outlined their ambitions on their website in which they show several sustainable developments within the company, which are in line with the Paris Agreement. However, there are no hard guidelines or goals in these documents. In the documents on their website, they do not refer to the inequalities or distributions of the effects of climate change.

Chahim of the European Union stated “the Dutch government should not only promise change but should also generate policies to maintain their promises” (M. Chahim, personal communication, April 29, 2021). This shows that he indicated that the government should take responsibility and instead of saying what they will also, act upon that. The European Union is now making a climate law that will create strict guidelines for countries to become more sustainable in many sectors. This will show the distribution of responsibility each country will carry. He stated that this climate law will generate more clarity and will make sure that the goals of the Paris Agreement will be met. He also elaborated on the matter of climate impact. He stated “there are literally islands disappearing and the harsh thing is that they have contributed the least to climate change” (M. Chahim, personal communication,

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April 29, 2021). With this quote, he showed the uneven distribution of who has to deal with the consequences of climate change and who has caused it.

Time & Urgency

Minnesma of Urgenda emphasized the fact that the effects of climate change are already visible. She stated “it is not something that is going to happen. It is already there” (M. Minnesma, personal communication, April 22, 2021). She also stated that the Dutch government does recognize climate change as a problem and does need to act quickly. De Rijk mostly agrees with Urgenda. He also emphasized that fast action is still lacking and he hopes that the Milieudefensie case against shell will come to an end sooner than the case of Urgenda. These two actors show that speed is one of the main goals of climate change litigation.

The Dutch state does have several messages about wanting to speed up the process of

becoming more sustainable and even wanting to reach the goal of zero emissions faster. Shell stated on their website “The world does not have any time to lose in this transition to a cleaner energy system” (Royal Dutch Shell, 2020).This quote shows that they do recognize the urgency and time aspects within this case. However, they did not say anything about cooperating with this transition.

Vermeulen of Nautadultilh also stated that one of the main goals of climate change litigation cases is speed. He also said that the statement of the highest court in which they said that human rights were violated created a strong outcome. This outcome is very powerful and also shows the urgency of the situation.

Chahim of the European Union does agree with the other actors on the manner of urgency. He stated “there is a lot of urgencies otherwise it would not have been called a climate crisis” (M. Chahim, personal communication, April 29, 2021).

The different actors have shown their perspectives on the three main subjects of this thesis. These three subjects are closely linked to the sub-questions, which will help answer the main question. The results showed similarities between the NGOs and the lawyer's agency. Shell and the Dutch state also have a lot in common. The results have pointed out that the

perspective of all actors on this subject is very human-centered. The reflections, conclusions and details of the results will be discussed in the next chapters.

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Discussion

This thesis has researched the perspectives, motives, and ideas of the participants. The participants all had a role within the process of climate change litigation. The research has been conducted using the qualitative research method of in-depth interviews. The length of each interview had been 30 minutes, except for the expert interview with Vermeulen of Nautadutilh. That one had the length of 20 minutes. All of the interviews had a focus on the perspectives on climate change litigation, except for the expert interview. In this interview, the main goal was to obtain knowledge about the judicial process and the implications for law. Therefore, the focus on the perspective of Vermeulen was not the goal. This implies that not all the interviews had the same goals and there is a difference in questions and outcomes of the interview with Vermeulen in comparison to the other interviews. The interviews are conducted openly. This means that the questions are open-ended and leave room for the participants to share their insights. The conducted research is repeatable because the interview guides are available and the participants are reachable. The conclusions of this research are reliable because the questions are open-ended and thus, the researcher did not push the participants in answering a certain way. The qualitative research of in-depth interviews is one of the most used methods and is seen as a reliable method. However, there is always the chance that a participant has not answered the questions or has misunderstood the question. Moreover, each person has a different version of the truth and therefore the goal was not to uncover the truth. This study aimed to understand the perspectives and motives of the participants.

Researcher’s expectations & connection to theoretical framework

The results of the conducted research have shown several interesting outcomes. The results are categorized into three main themes. These themes are; future of climate change litigation, climate impact & responsibility, and urgency & time. The discussion of the results will also be categorized in these themes and will compare the results to the expectations of the researcher and compare to the theoretical framework.

Firstly, the future of climate change litigation according to the European Union and Milieudefensie lies at a well-constructed climate law. This meets the expectations of the researcher. The climate change litigation cases have used the grounds of human rights for example because now a strict environmental law is not implemented. The researcher expects that when a well-constructed law for parties, such as the government or companies, is

implemented the number of cases will reduce. Another expectation of the researcher has also been confirmed by the European Union. Chahim also thinks that a climate law will reduce the time climate change litigation cases take. The researcher also expected that, since the Urgenda case has started similar cases abroad, that the case of Milieudefensie will also be repeated. Just recently, Milieudefensie has won the case against Shell in Dutch Court. There is not yet information on if Shell will appeal and test the verdict at the highest court. Still, the judge has spoken that an oil company violates human rights and is forced to reduce their emissions. The researcher did not expect the outcome in which the Dutch state feels that the Urgenda case did have consequences for their freedom of policy-making. The results of this first theme are closely linked to the concept of climate change litigation in the theoretical framework. The goals of this type of litigation and the theory about the spike in cases proved to be true. The theoretical framework focuses on the Urgenda case which had a positive effect on the number of similar cases abroad. The results point out that if the case by Milieudefensie against Shell is won that the actors think that similar cases will emerge.

Secondly, the theme of climate impact and responsibility will be discussed. The researcher expected that the two NGOs and the lawyer's agency think similarly about the distribution of

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hazardous effects of climate change. This expectation has been confirmed by these three actors. It was expected by the researcher that Urgenda would see the Dutch government as the main responsible actor. The results have pointed out that the actors of Urgenda, Nautadutilh, and the European Union all think that governments should take more responsibility and implement more climate action. It was also expected that Milieudefensie would hold

companies, such as Shell, responsible. In the cases of Urgenda and Milieudefensie, they try to mobilize the actors that are key in the fight against climate change, which is why these actors are the main responsible ones in their opinion.

The theoretical framework has elaborated on the concept of environmental justice.

Environmental justice has a large focus on inequality. The section on climate impact in this second theme is also focused on the uneven distribution of hazardous effects of climate change. Therefore, this second theme links closely to the theory of environmental justice. Lastly, the third theme is called urgency and time. Two sets of conclusions were expected in this section and one was unexpected. The first expected result was that climate change litigation cases have as main goal speed. In the battle against hazardous climate change, the key is fast action to mitigate or prevent. The second expected result was the spike in climate change litigation due to despair. In day-to-day life, it is visible that the climate is changing and not for the better. The news shows many horrendous images of the effects of climate change and therefore the researcher does understand the feeling of despair. The unexpected result was that the rights and freedoms of citizens are violated. The researcher did understand that the situation is severe but this shows how much. One of the first rights as a human is the right to a healthy future. However, now this is endangered and that is a strong realization. This last theme of time and urgency is closely linked to the second of environmental justice and environmental law. It is linked to those two concepts due to intergenerational

responsibility. This means the responsibility people now hold to take care of the planet and give it in a healthy state to the next generations.

Limitations

This research has shown the perspectives of two NGOs, a lawyer who helped in the case of an NGO, and someone from the human-rights section of the European Union. This can generate a one-sided perspective. The other parties, Dutch state, and Shell are also represented but in a smaller amount. The time limit of this research was short. If the research was conducted over a longer period there would have been more data which creates more reliability.

Implications

This research implies that the severity of the situation has become very clear. Human rights are violated. This research has also shown a very human-centered perspective. All of these climate change litigation cases are won on the matter of human rights. The right of living of humans is endangered, while nature and animals already suffered from climate change. It is very interesting to see that these cases are solely won on the matter of human rights and not on nature rights. This shows an anthropocentric perspective.

Follow-up research

Suggestions for follow-up research are looking at how climate change litigation would be seen from a nature-centered perspective instead of a human-centered perspective. If

biodiversity loss would be central in these cases would the outcomes be different and what kinds of implications would that have. Another suggestion would be to look at nature rights. There are many interesting literature on nature rights in which nature (Arrow, 1996), just like humans, should have rights and cannot be violated. Follow-up research needs to be conducted on this subject and the implementation of nature rights needs to be researched. The last

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suggestion would be to research all the actors that have played a role in the two researched cases of this study.

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Conclusion

This study researched the perspectives and motives of actors within the climate change litigation process. The actors have generated several results in which it became clear that the human-centered perspective is significant. These cases are built on human-rights claims and fit perfectly in the Anthropocene. The study aimed to explore how legal structures are shaped by key actors, such as the participants in this study. Therefore, the research question was; what are the perspectives and motives of the participants on climate change litigation? This question is answered using sub-questions that zoom in on the future of climate change litigation, the connection between climate change litigation with inequality and climate impact, and the connection between climate change litigation with time and urgency. The role of climate change litigation, according to the participants, differs in detail. However, the main consent about the role is that climate change litigation shows that the current state of the climate is terrible.

The implications of hazardous effects of climate change ripple into society and now are affecting people as well. The effects on nature have been visible for a while now due to the high loss of biodiversity. Now, the effects ripple to humans. The climate change litigation cases are rising, inequality is rising, time and urgency are becoming more and more key in this matter. The results section on climate impact has shown that the inequality is rising. The results have also shown that, according to the participants, there are two parties who can be held responsible. These parties are governments who have the ability to create a systematic change and large companies who are responsible for a large share in emissions. To better understand the implications of these results, future studies could research all the actors that have a role in these cases.

The three researched climate change litigation cases were built upon human rights. The violation of human rights does show the severity of the situation that we are in. This study has illustrated the human-centered perspective on these cases but it has also raised the question of how important a nature-centered perspective can be.

Many climate change litigations around the world are won and this generates inspiration and hope. Therefore, the prediction is that climate change litigation cases will obtain a large role in the environmental and judicial field.

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Appendix

Interview guides

Questions for all the participants:

1. Are there other people who would be interested to conduct this interview with me? 2. Shall I send my thesis when it is finished?

3. Can I quote you and mention your name?

Expert interview guide for Mr. Vermeulen of Nautadutilh:

1. Can you tell me what your job contained within the case of Urgenda against the Dutch State?

2. Can you share your perspective on the Urgenda case? 3. How did the process of the Urgenda case conclude?

4. How do you feel and think about the outcome of the Urgenda case? 5. Does Nautadutilh handle more climate change litigation cases? 6. What is necessary to start a climate change litigation case? 7. What is the procedure during court?

8. On which grounds is the Urgenda case litigated?

9. What is the goal of these climate change litigation cases, according to you? 10. Do these climate change litigation cases have implications for the practice of law? 11. Do you think that these cases want to send a signal?

12. There has been a lot of critique on the Urgenda case, what do you think of that? 13. What are the opportunities and potentials of these climate change litigation cases for

the practice of law?

Interview guide for Mr. Chahim of the European Union:

1. Can you tell me what your job contains in the European Union?

2. Can you tell me your perspective on the climate change litigation case of Youth for Climate?

3. How is the case handled?

4. How is the situation of the case now?

5. Do you also handle other climate change litigation cases? 6. What is the goal of climate change litigation according to you?

7. Are there other goals then just achieving the claims in the case of Youth for climate? 8. Do you think that the recent augmentation of climate change litigation mirrors a

certain kind of critique on the current economy?

9. Do you think that the recent augmentation of climate change litigation mirrors a certain kind of critique on the current state of politics, policy, and government? 10. Do you think these climate change litigation cases will generate a systematic change

within society?

11. Why do you think there has been an augmentation in the amount of climate change litigation cases?

12. Why is there now an augmentation?

13. What are the chances and opportunities of these cases? Interview guide for Ms. Minnesma of Urgenda:

1. How is the current state of Urgenda during the covid-crisis?

2. Why has Urgenda chosen to do a climate change litigation case instead of another type of action?

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3. What is your motive to litigate the Dutch state?

4. What are the advantages of a climate change litigation case? 5. What are the disadvantages of a climate change litigation case?

6. When will other types of climate action, such as boycotts and campaigns, be used? 7. What is the goal of climate change litigation?

8. Are there next to achieving the claims of the case other goals? 9. Was it also a goal to send a signal of the urgenda case?

10. Do you think that the recent augmentation of climate change litigation mirrors a certain kind of critique on the current economy?

within society?

15. Do you think that a systematic change can be achieved by climate change litigation? 16. Does the augmentation of climate change litigation have a relationship with the

growing amount of inequality?

17. What are the chances and opportunities of these cases? Interview guide for Mr. de Rijk of Milieudefensie:

1. How is the current state of Milieudefensie during the covid-crisis?

2. Why has Milieudefensie chosen to do a climate change litigation case instead of another type of action?

3. What is your motive to litigate Royal Dutch Shell?

4. What are the advantages of a climate change litigation case? 5. What are the disadvantages of a climate change litigation case?

6. When will other types of climate action, such as boycotts and campaigns, be used? 7. What is the goal of climate change litigation?

8. Are there next to achieving the claims of the case other goals? 9. Was it also a goal to send a signal of the Shell case?

10. Are there other types of action that are used by Milieudefensie for climate action? 11. How are these types of action used in the most effective manner?

12. What is the goal of climate change litigation?

13. Do you think that the recent augmentation of climate change litigation mirrors a certain kind of critique on the current economy?

within society?

18. Do you think that a systematic change can be achieved by climate change litigation? 19. Does the augmentation of climate change litigation have a relationship with the

growing amount of inequality?

Perspectives on climate change litigation

Perspectives on

climate change

litigation

Table of contents

Introduction

Theoretical framework

Environmental justice

Climate change litigation

Conceptual framework

Methodology

Research strategy

Data collection

Data analysis

Limitations

Results

Future of climate change litigation

Climate impact and responsibility

Time & Urgency

Discussion

Conclusion

Reference list

Appendix

Interview guides