SUN Xueyan*

 

Abstract: In accordance with the canonical sources of the right of legal claim, the targets of judicial review, and the intensity of judicial review intervention policies, lawsuits that directly and indirectly activate the function of human rights protection amid climate risks can be divided into the following categories: climate change lawsuits based on international human rights law, climate change lawsuits based on the domestic constitution, and judicial review of administrative procedures. Due to the singularity of the legal status and force of international human rights law, its “direct applicability” and “explanatory applicability” limit its function in protecting human rights; Climate change lawsuits based on domestic constitutions have the identification of basic right of claim, the judgment of basic rights and function, and the scope of state obligations as the judgment process.Factors such as the difficulty in right typification caused by the integration of climate law and interests, the expansion of discretionary and administrative power in legislation under the context of risk prevention, and the functional boundary of the judicial system cause the dysfunction of the dichotomous review standard of positive rights and negative rights. Procedural rights represent an important dimension of climate-related human rights. With the standardization of administrative procedures on addressing climate risks, the courts are gradually reinforcing decision-making authorities’ obligation of due diligence through judicial review of risk decision-making procedures, thus indirectly guaranteeing the realization of tangible human rights.

 

Keywords: climate litigation · right to climate stability · right to climate health · evaluation of climate risks · assessment of environmental impact

 

 

In recent years, seeking judicial remedies and protection for human rights in the context of global climate risks has become a growing phenomenon worldwide. Scholars from home and abroad generally refer to such cases as “human-right based climate litigation.” Courts have become important bastions for human rights protection in the face of climate crisis, whether in common law countries such as the United States, the United Kingdom, and Canada, which respect judicial precedents; or in civil law countries such as Germany, the Netherlands, and France, which emphasize the authority of legislation; as well as in countries from Asia, Africa, and Latin America such as South Africa, Brazil, Nigeria, India, and Mexico, which are more proactive in international climate negotiations. In all of these courts, climate change litigation aimed at protecting human rights has emerged.¹ The courts have fully exerted the function of safeguarding human rights through the provisions of human rights clauses in international treaties, basic constitutional rights, and the derivation of “new rights” from constitutions. The courts not only provide necessary judicial remedies for micro-level rights disputes but also use human rights as a standard to judge national climate legislation and macro-level climate policies, aiming to promote legislative and administrative bodies to adopt more proactive climate legislation and policies.²

 

As the main battlefield for rights relief, the courts implement the arrangement of the macro-level rights system in a standardized manner and defend individual interests against the restriction and infringement of state power through micro-level judgments. In traditional subjective rights litigation, the goal is usually not to pursue objective order reform. However, climate change litigation uses “human rights judicial relief” as an institutional resource and means to encourage the state to fulfill its risk prevention obligations, forming an institutional system that actively responds to climate change in the objective order. The individual’s “right relief demands” are instead receding as the main goal of the judgments. Therefore, the plaintiffs and the adjudicators actually choose the judicial solution that is most effective for climate governance and has the highest likelihood of winning from various normative sources, litigation types, and rights foundations. Based on this point, although theoretically, various types of litigation may directly or indirectly have the effect of safeguarding human rights, different types of litigation have “unresolvable” characteristics in terms of the discretion space of the review object, review intensity, relief methods, and normative basis. For example, the power of constitutional interpretation, the interpretation of international human rights treaties, and the review of general administrative behaviors are entirely different. The limitations imposed by the separation of powers principle on constitutional cases differ significantly from their performance in ordinary litigation. The judicial functions in different types of litigation have different emphases. For example, objective litigation based on administrative procedural law focuses more on the supervision of climate decision-making procedures by judges. Although it includes the measurement of human rights values by judges, the judges are not expected to make policy substantive judgments with the same intensity as constitutional litigation. Therefore, the human rights protection function of climate change litigation needs to be classified and analyzed in the context of litigation typification. 

 

In the current theoretical perspectives, subjective rights litigation, based on international law and domestic rule of law human rights provisions, is considered a key type of litigation for safeguarding human rights and is endowed with relatively high institutional expectations. Scholars have cited the following reasons: First, the moral foundation that supports the concept of human rights is stable and universal, and to some extent, isolates political practices. Focusing judicial debate on what kind of climate change measures can safeguard basic rights based on individual case disputes helps to correct the narrow political perspective and complex interest games in democratic decision-making.³ Second, the importance of basic rights in the Supreme People’s Court gives them considerable instrumental value. That is, their defense, benefit, and procedural support functions generate the state’s prohibition or obligation.⁴ In fact, climate change is related to a broad range of “rights groups,” including not only negative rights such as the right to life but also various social and economic rights claims such as environmental rights, health rights, the right to water, and the right to climate stability. Using basic rights as the basis for litigation can provide sufficient moral and value judgments for judicial decisions,⁵ as well as adequate normative bases with great interpretive space and different contents and intensities. However, behind these advantages, climate change litigation supported by substantive human rights faces theoretical burdens and functional limitations, which means that various types of subjective rights litigation to address climate change have not yet achieved the theoretical optimistic expectations of human rights protection effectiveness in reality. This article first analyzes international human rights litigation and constitutional basic rights litigation in the field of climate change and points out that different types of cases based on substantive rights as the basis of litigation have not achieved ideal human rights protection effectiveness. It also analyzes the common legal obstacles behind them and proposes that future climate change litigation should focus on the judicial creation of procedural rights and actively exert the judicial supervision function on risk administrative decision-making procedures to indirectly achieve the goal of human rights protection amid climate risks.

 

 

 

After the Paris Agreement took effect, global climate change governance followed a combination of “bottom-up” and “top-down” approaches. Specifically, in terms of overall rules, transparency and action inventory rules were set “top-down,” but emissions reduction targets no longer have mandatory legal force and penalties under international law. Instead, each contracting party submits its “nationally determined contribution” (NDC) based on its own situation and regularly decides whether to update its target as the basic way to fulfill its obligations.⁶ The NDC of each country is recorded and updated by the secretariat through a public registry outside of the formal text of the Paris Agreement. The fulfillment of each country’s commitments does not constitute the basis for national responsibility or cross-border compensation. Therefore, although the Paris Agreement states in its preamble that “Parties should, when taking action to address climate change, respect, promote, and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development,”⁷ the agreement itself does not have mandatory human rights obligations and does not constitute a source of normative standards for the human rights obligations of contracting parties. 

 

Although international climate agreements do not make mandatory demands for states to uphold human rights obligations, international human rights law provides an opportunity for legal integration between the two areas of addressing climate change and protecting human rights. In 2008, the United Nations Human Rights Council proposed the first-ever study on the human rights impact of climate change in Resolution 7/23 and submitted it for consideration by the contracting parties of the United Nations Framework Convention on Climate Change (UNFCCC). This led to action by international organizations to promote legal mechanisms linking climate change and human rights.⁸ The international human rights law mainly supplements climate agreements from a human rights perspective through two pathways. First, specialized agencies of the United Nations on human rights issue advisory opinions and investigation reports to clarify the factual issues regarding the adverse effects of climate change on human rights and to indicate policy directions for countries to strengthen human rights protection. This “soft law” typically serves as auxiliary evidence in litigation but rarely serves as a formal basis or reasoning for judgments with substantive impact. Second, human rights provisions directly related to climate risks in various international human rights treaties can serve as a legal basis in climate change litigation. In practice, most climate change litigation claims for human rights protection focus on the obligation of countries to mitigate and adapt to climate change, including developing positive domestic legislation, policies, etc. International human rights treaties provide legal support to urge contracting parties to fulfill human rights obligations and supplement the deficiencies of climate agreements such as the Paris Agreement in terms of human rights protection mechanisms. The rights clauses related to climate change in mainstream international human rights treaties are shown in the following table.⁹

 

 

American scholar Anne-Marie Slaughter believes that the judicial interaction between international human rights law and domestic constitutions can mutually promote the development of domestic and international legal judgments. This interactive process is manifested in five types of empirical situations: the relationship between courts in EU member states and the EU Court of Justice, the interaction between the European Court of Human Rights and domestic courts, “judicial comity” in transnational litigation, constitutional cross-fertilization, and face-to-face meetings between judges worldwide.¹⁰ The institutional function of international human rights law is to monitor a government’s obligation to respect, protect, and fulfill the human rights of its citizens. Climate governance has transnational and intergenerational externalities, and when it comes to issues such as fair-share of emissions reduction responsibilities among countries, transnational climate risk behavior of corporations, and intergenerational fairness in the allocation of long-term emissions reduction responsibilities, international human rights law provides human rights standards that are conducive to overcoming judicial barriers caused by domestic political factors. 

 

 

Although the UN High Commissioner for Human Rights and various human rights treaty bodies are actively promoting the inclusion of climate change litigation in the protective framework of international human rights law, the fact is that domestic courts take precedence over international human rights judicial remedies and the Paris Agreement allows governments to flexibly arrange the implementation methods and schedules of their nationally determined contributions based on their respective capacities. As a result, climate change litigation that relies on the international human rights courts faces a higher risk of judicial rulings. Judges tend to handle climate cases that could overturn domestic precedent or even domestic legislation with caution. So, the vast majority of climate change cases that have been brought before international courts on human rights grounds have not been substantially heard,¹¹ and international human rights law has not been widely applied as a normative basis in climate change litigation.

 

In the limited cases where international human rights law has entered climate judicial rulings, international human rights conventions can serve as both a stand-alone basis for judicial rulings through “direct judicial application” and as a means of interpreting domestic laws when international conventions provide clearer or more helpful provisions than domestic laws, thereby strengthening and complementing the reasoning and value of domestic legal provisions through “interpretive application.” 

 

 

In doctrinal logic, the value property of human rights is objective. The effectiveness of the human rights guarantees of the global and regional conventions on human rights protection does not depend exclusively on the specificity of the normative content, but on the judicial resources such as jurisdiction power, litigation procedure, and effectiveness of the judgments. Legal sources such as the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights, while compatible in their normative content with the types of rights guaranteed by climate governance, do not provide for a direct individual complaint mechanism for the Convention independent of the domestic human rights institutions of state parties, limiting its compelling power as a genuine body of law. 

 

In comparison, regional human rights conventions such as the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the European Convention on Human Rights not only grant regional human rights institutions and courts mandatory jurisdiction over individual complaints, but also highlight the human rights historical traditions and development characteristics of the countries in the region. The rights specified in these conventions are more specific and clear, and have more judicially enforceable conditions. Domestic courts are also more familiar with and accepting of these conventions.¹² In particular, the provisions of the European Convention on Human Rights have become a common international human rights law norm invoked by plaintiffs in climate change litigation, with Article 2 (the right to life) and Article 8 (the right to private and family life)¹³ serving as the legal basis for imposing positive regulatory obligations on governments in the “Urgenda Foundation” case, and subsequent plaintiffs in such cases have attempted to invoke its articles in order to require governments to strengthen their climate goals. Under the “direct judicial application” model in international human rights law, the fundamental issue that judges must interpret is whether the human rights obligations under the convention can be extended to the positive obligation of risk prevention by the contracting state. Judges need to interpret the way in which contracting states fulfill their human rights obligations expansively and openly. For example, in the “Urgenda Foundation” case, the Dutch Supreme Court stated that the Dutch government has a positive obligation to safeguard the “right to life”, which requires the government to take measures to avoid “real and immediate risks to life” based on a reasonable expectation of risks. The court also pointed out that whether the “right to private and family life” corresponds to a positive obligation of the state does not depend on the nature of the right, but on whether the situation leading to an emergency and the duration of the risk are sufficient to exceed the acceptable limits of the right. If the risk to the right is foreseeable and the “diminution” of the right exceeds the acceptable limits of the human rights convention, the state must fulfill its positive obligations, such as disclosing risk information and strengthening risk control.¹⁴ Other cases that apply the “direct remedial model” have clearly established the positive procedural risk assessment obligations that states must assume under regional human rights conventions. For example, in the case of “Gbemre v. Shell Nigeria”, the court held that if an enterprise’s environmental behavior poses a risk of exacerbating climate change, the government must adopt a mandatory environmental impact assessment procedure to prudently respect the “dignity” and the “right to life” specified in the African Charter on Human and Peoples’ Rights.¹⁵

 

From the perspective of the actual effectiveness of human rights protection, although the “direct judicial application” mode of international human rights law has higher threshold conditions and success difficulties (plaintiffs in individual applications to the European Court of Human Rights still need to prove that they have exhausted domestic judicial remedies and provide judicial proof of “significant and urgent risks”), once successful, such cases have far-reaching effects beyond the preventive protection of private rights. They can achieve long-term, universal human rights protection mechanisms through systematic reform of domestic policies. Indeed, in the “Urgenda Foundation” case, the judgment pointed out that domestic policies to mitigate climate change must reduce total emissions by at least 25 percent based on the 1990 baseline by 2020 to avoid infringing on fundamental rights.¹⁶ In addition, the European Court of Human Rights has accumulated a considerable number of successful judicial precedents in the field of environmental pollution and has continuously explored legal forms of responsibility through individual cases. For example, in the Dubetska and Others v. Ukraine case, the judgment held that coal mining seriously affected the water and air quality of the plaintiff’s residential village, increased the health risks of residents, violated the right to life provision of the convention, and the defendant was not only required to disclose environmental information and restore environmental damage, but also held liable for monetary compensation for sustained mental harm and inconvenience to the plaintiffs.¹⁷ Some foreign scholars have pointed out that the European Court of Human Rights’ environmental precedents support plaintiffs who have suffered from long-term environmental risks, have sought domestic remedies for a long time to no avail, and have suffered measurable private rights losses to seek economic compensation from the government. Article 3 of the Convention on “the prohibition of degrading treatment,” Article 41 on “fair compensation,” and other provisions also have room for application by judges when interpreting the government’s positive responsibility for climate regulation. This leaves the possibility for legal relief for the rights of parties in cases where the domestic law of the country concerned does not provide for climate compensation responsibilities.¹⁸

 

 

In the “interpretive application” mode of international human rights law, the object of legal interpretation is not the provisions of human rights conventions, but refers to situations where there are multiple possible interpretations of domestic constitutions and ordinary laws due to their vagueness. In such cases, judges should adopt conclusions that are consistent with the purposes, principles, and standards of international human rights law when interpreting domestic law. It emphasizes that the court’s “respect for international law takes precedence over judicial compliance with political privileges,”¹⁹ In general, the “interpretive application” of international human rights law plays a role in “enhancing the value of domestic law,” in which judges use international human rights law as a supplementary resource to provide additional support for their opinions. International human rights law that can provide value supplementation not only includes formal conventions that have been ratified domestically, but also “soft law” such as human rights declarations, advisory opinions of human rights treaty bodies, and specialized reports of UN human rights institutions that do not have formal legal binding force. 

 

In the practice of climate change litigation, the court of first instance in the “Urgenda Foundation” case actually applied the “consistent interpretation” approach, i.e., interpreting the “unenumerated duties of care and diligence” of the Dutch Civil Code in accordance with the “risk prevention” principle of the right to life in the European Convention on Human Rights.²⁰ The court in the “Royal Dutch Shell” case argued for a duty of prudent prevention in relation to climate risk in accordance with the European Convention on Human Rights and the OECD Guidelines for Multinational Enterprises, etc.²¹ The greatest legal value of “interpretive application” in theory is to use the resources of the international human rights law system to strengthen the judge’s reasoning, especially when there may be multiple conclusions within the legal framework for legal discovery and interpretation. In such cases, judges tend to rely on the content and principles of international human rights conventions to provide value support for the final judgment.

 

 

In climate change litigation, the embedding of international human rights law into judicial rulings often depends on its interaction with domestic constitutions or domestic laws. With the exception of a few cases where international judicial institutions such as the European Court of Human Rights have made judgments solely based on international human rights provisions and their own precedent, most cases must consider human rights protection standards in domestic constitutions and laws. If judges prioritize the application of international human rights law or interpret domestic laws based on its principles, they must bear the corresponding burden of proof. Therefore, the substantive difference between domestic law and international human rights law as a basis for judicial rulings or reasons for rulings does not lie in the legal provisions or types of rights, but ultimately in the divergent standards of human rights protection at domestic and international levels.

 

Objectively speaking, in some cases, international human rights law, such as the European Convention on Human Rights, provides stronger protection for fundamental rights than domestic human rights standards. A typical example is the “Urgenda Foundation” case, in which the “right to life” was interpreted as a form of “right infringement” due to “significant and urgent” risks, which is difficult to be directly interpreted as an infringement of passive rights in domestic constitutional rulings unless there is a systemic lack of objective regulatory system and extremely serious supply shortages in a few cases. Therefore, in climate change litigation based on domestic law, if the goal of the litigation is to construct a risk prevention system, judges are usually more cautious in their judicial reasoning of fundamental rights in order to avoid excessive expansion of the normative function of domestic constitutional fundamental rights. The divergence of protection standards weakens the binding effect of international human rights law precedents on subsequent cases. If the “climate human rights” types provided for in international human rights conventions are usually covered by the fundamental rights of domestic constitutions, they do not belong to the “external legal resources” that fill domestic legal gaps. Judges must seriously compare the different standards in domestic law, international legal norms, and precedents, and consider whether domestic legislation has the legislative intent to maintain standards consistent with human rights conventions. Because interests such as life and safety are difficult to quantify and have specific constitutional benchmarks in risk prevention issues, the requests contained in the litigation objectives for objective order are different. Most judges can refuse to refer to precedents on the grounds of differences in factual issues. In the case of “Greenpeace Nordic Association and Nature and Youth v. Ministry of Petroleum and Energy,” the plaintiffs requested that the court interpret the state’s risk prevention obligation in accordance with the protection standards of the European Convention on Human Rights. However, the court rejected the interpretive approach and argumentation of precedents, stating that the long-term total control objectives and temperature control objectives involved in the Urgenda Foundation case constitute “significant issues that may cause comprehensive climate risks,” whereas the carbon emissions trading policies and rules involved in this case do not fall within that scope.²²

 

Therefore, it can be seen that if international human rights standards are to be introduced in climate change litigation in domestic courts, judges must first choose between the two interpretive methods of “grounding on domestic human rights standards” and “grounding on international human rights standards.” Generally speaking, it is easier to interpret international human rights standards as additional supporting arguments and tools for confirming values if grounded on domestic law. However, if grounded on international human rights law, it is relatively difficult to achieve “consistency interpretation” of domestic general laws and regulations, and it is extremely difficult to achieve a “consistency interpretation” of domestic constitutional norms, which may result in the nullification of constitutional content and impact on the constitutional structure by international human rights law. Therefore, the human rights protection function of both “direct judicial application” and “interpretive application” of international human rights law will become exceptionally fragile when facing potential conflicts of standards. 

 

 

Human activities of greenhouse gas emissions directly affect the ecological function of maintaining stable climate conditions in the atmospheric system, and thus threaten human survival, production, and living conditions. Global climate change means that the objective material basis of basic human rights such as dignity, freedom, and life is threatened, and the security interests that constitute the substantive content of fundamental rights are destroyed. From this perspective, the basic rights norms in the constitution undoubtedly form a direct and fundamental constraint on the state’s obligation to prevent climate risks, and they constitute the highest constitutional principle for all climate legislation. Generally speaking, a climate change judgment based on the domestic constitution includes three steps: First, identifying a single basic right that can be used as the basis for the disputed climate legislation (or legislation inaction) claim; second, judging the constitutional function of the basic right and its constraint on the public and private law fields; third, determining whether the disputed action constitutes a violation of the state’s obligation of “non-infringement” or “protection”, and judicial argumentation involves clarifying the content and effectiveness function of the basic right. The starting point of climate constitutional litigation is the identification of the basic claim right, which is also the focus of attention in relevant research both home and abroad. According to the different external forms of the constitutional norms on which the basic claim right is based, there are two basic argumentative approaches of litigation in practice: First, deriving the litigation right basis from the unlisted rights with “minimum guarantee” or other rights clauses of the constitution, which we call “judicial recognition of emerging rights” in this article; second, linking climate regulation with traditional constitutional rights,interpreting climate regulation measures as “restrictions on basic rights”, and determining the substantive rationality of climate regulation through the balancing of interests, which we call “judicial balancing of traditional rights”. The two approaches have different emphases in terms of argumentative thinking and judicial techniques. 

 

 

The basic idea of the judicial recognition of “emerging” rights is to view stable climate conditions as the objective basis for realizing substantive personality interests, emphasizing that greenhouse gas emissions “harm” the conditions for realizing citizens’ basic rights while changing the climate. These claims are usually incorporated into the conceptual framework of the “right to climate stability.” According to Chinese scholars, there have been eight constitutional litigation cases worldwide based on the “right to climate stability,” including the widely publicized “Juliana v. United States” case.²³ In this case, the plaintiffs argued that the federal government should continue to keep the concentration of carbon dioxide in the atmosphere below 350ppm until 2100, which could ensure that the plaintiffs and their descendants live in a climate-stable environment, protecting the lives and health of young people from the harm of climate change. The court cited the “public trust doctrine” in US common law and the “due process” clause of the 14th Amendment to the Constitution, stating that the normative value of the 14th Amendment is to uphold the “core of individual dignity and freedom of choice rooted in American history and tradition.” Although the judge pointed out that “deriving substantive rights from the 14th Amendment is an extremely exceptional judicial creation,” he also stated that “considering the inseparable relationship between climate and personal, property, and other freedoms, ‘the right to climate stability’ is a fundamental right rooted in the US Constitution.”²⁴

 

The judicial recognition of “emerging” rights is often a strategic choice of the plaintiffs and judges in a case. Courts in various countries generally lack precedent judgments that expand the traditional functions of rights such as “property rights” and “the right to life” to objective order construction claims. “Emerging” rights can cleverly avoid the limitations of the nature and function of rights. For judges, proving the legitimacy basis of “climate human rights” in open constitutional provisions carries fewer legitimacy risks than “changing” the inherent and passive attributes of traditional rights. In addition to the “right to climate stability,” climate judgments have also derived the unwritten “right to a healthy environment” from constitutional norms. For example, in the case of “Ashgar Lehari v. Federation of Pakistan,” the court held that the right to life clause in the Constitution of Pakistan includes the “right to a suitable environment for human health.” In the case of “Association for Protection of Democratic Rights v. The State of West Bengal and Others,” the court derived the “right to a healthy environment” from the clauses on the “right to life,” “freedom,” and the state’s obligation to protect the environment in the Indian Constitution. The court’s derivation of “emerging” rights means recognizing that “climate human rights” have independent significance and connotations different from traditional rights. This not only opens up new litigation channels for subsequent cases and imposes positive climate regulation obligations of varying degrees and content on the state, but also indirectly promotes the formation of the objective order system through the macro guidance of constitutional basic rights on legislation. 

 

However, the establishment of “emerging” rights requires compliance with various standards in terms of values, concepts, and policies, and follows normative reasoning steps in the law. Professor Lei Lei pointed out that the criteria for judging rights include at least the legitimacy of interests, the priority of protecting individual choices, the accommodability of the legal system, social costs, and political feasibility, among others. Otherwise, the so-called “rights” are only “claims to rights” that cannot be regulated.²⁵ From the practice of judgments, the establishment of “emerging” rights often remains at the level of value-based and importance of interest-based reasoning. However, once they are deeply analyzed within a complete framework of rights, judges may face the challenges of violating the overall constitutional structure of norms. 

 

First, deriving rights through interpreting the “unlisted rights” and expanding the boundaries of traditional rights may interfere with the internal coherence of the system of rights. German scholars such as Dürig believe that the general safeguard clauses and specific rights clauses of the constitution play the normative functions of “general liberty rights” and “individual liberty rights” respectively. Both serve the core values protected by the country’s constitution and complement each other to form a “flawless and closed system of rights protection.”²⁶ Therefore, the various “emerging” rights derived by judges in precedents are actually “parts that make up the whole,” and their nature and content are interrelated and their values are consistent. Taking the “Juliana v. United States” case as an example, the “implied” fundamental rights under the 14th Amendment of the US Constitution revolve around the “most intimate choices” in individual autonomy, such as parents’ right to make decisions about their children’s education, the rights of homosexuals, the right to abortion, and the right to decide to terminate life-sustaining medical treatment, and so on.²⁷ Interpreting the rights based on the clause requires an objective and purposeful explanation. The consensus view is that the purpose of deriving rights from the 14th Amendment is to protect the core domain of individual autonomy from falling under government control due to the Constitution’s incomplete listing of rights, which is completely opposite to the legal logic of the “right to climate stability,” which relies on social governance and requests government intervention for protection. Therefore, blindly expanding the types of rights based solely on the “importance” of the interests at stake can lead to the excessive diffusion of fundamental rights as a “value system,”²⁸ which damages the normative function of “general liberty rights”. 

 

Second, there is a problem of confusion between the intensity of rights protection and the standard of review. “General liberty rights” is not an unlimited accommodation and protection of “individual liberty rights.” Placing rights under different normative clauses of “listed” and “unlisted” often means classification based on different levels of protection intensity. If the protection intensity is not distinguished, “individual liberty rights” will lose its significance as the independent existence.²⁹ Taking the 14th Amendment of the US Constitution as an example, the court has established a relatively stable typified review standard through a series of judgments, including: a strict scrutiny standard that requires a “necessary connection” between administrative measures and legislative purposes, a moderate scrutiny standard that requires a “substantial connection” between administrative measures and legislative purposes, and a relaxed scrutiny standard that requires a “reasonable connection” between administrative measures and legislative purposes.³⁰ The standard of review is the external manifestation of the normative effectiveness of various basic rights, which is determined by the importance of the interests protected by basic rights. In the “Juliana v. United States” case, the court emphasized that the “right to climate stability” is a “fundamental and urgent interest,” and selected the higher policy-respecting “rationality review” as the standard of review. In the end, the court ruled that the government’s climate measures were “fundamentally unreasonable.” This series of arguments appear arbitrary because it lacks careful consideration of the connection between the nature of the right and the intensity of review, and also indirectly illustrates that the judicial approach to recognizing “emerging” climate rights is limited to the construction of rights types, and it is difficult to comprehensively and thoroughly explain the normative effectiveness and reasons for these new rights. 

 

 

Another type of climate litigation based on domestic constitutions interprets climate regulatory measures as “interference with and restriction of abstract freedom rights” and uses “principle balancing” to assess whether climate legislation meets the requirements of the “proportionality principle”, thereby returning to the judicial reasoning of basic rights defense. Such cases are represented by the “Neubauer, et al. v. Germany” case, as ruled by the German Constitutional Court. In this case, the plaintiffs argued that the emission reduction targets set out in Article 3 and Article 4 of the German Climate Protection Act for the period up to 2030 were too conservative and would threaten the right to life and property right of the younger generation. The German Constitutional Court astutely recognized that long-term emission reduction policies involve intergenerational conflicts of interests, and its ruling essentially constitutes a “balancing” of conflicting interests. The normative effectiveness of basic rights is not presented in the form of “rules” that are either “fully present” or “fully absent.” Judges must judge whether the interest allocation method of legislative provisions in the context of conflicting rights constitutes a “disproportionate restriction” prohibited by the constitution and apply basic rights as “principles.”³¹

 

In terms of specific argumentation, the court used the 2050 “carbon neutrality” target as the premise of the ruling, and the legally binding emissions reduction targets constituted a “preemptive effect” under the constitution. This means that the stagewise emissions reduction targets essentially determine the “abstract freedom of action” of present and future generations (including factors such as carbon emissions, employment opportunities, and industrial development patterns). The carbon emission rights limited by the total quantity are actually the “freedom rights” of people in different periods. After considering scientific evidence, the court found that the current legislative provisions for the total amount of emissions reduction before 2030 are too low, and therefore constitute an unconstitutional “disproportionate burden” on future generations by exacerbating their emissions reduction obligations. Although the judge advocated that the restriction of basic rights by regulatory measures should be “proportionate and reasonable,” in reality, this ruling was based on the long-term “carbon neutrality” target that had already exerted “constitutional preemptive effect.” As a result, it served to urge the legislative and administrative authorities to implement emissions reduction tasks and allocate “carbon budgets” for different periods in advance, which objectively helps to strengthen the prevention of climate risks and sustainably protect the lives and health of young people and future generations. 

 

The “Neubauer, et al. v. Germany” case attempted to link climate targets with the negative defense function of basic rights, addressing the confusion surrounding the function and review standards of basic rights. This approach to the ruling is beneficial for compelling governments to consider intergenerational equity and the development interests of future generations as important factors when formulating policies. Indeed, there are still questions regarding whether the “carbon neutrality” target, which serves a general public interest purpose, can be understood as a “restriction” on basic rights. Additionally, the premise of the ruling in the “Neubauer, et al. v. Germany” case was that Germany’s Climate Change Act had already established temperature control targets, which require that the total emissions reduction targets must be developed based on the 2℃ temperature control target of the Paris Agreement. Therefore, the issue that the judicial ruling addressed was not whether the government had a duty to take active preventive measures, but rather how the established emissions reduction costs could be fairly distributed among different generations. In countries that have not yet established “carbon neutrality” legislation, the applicability of this judicial model is limited. 

 

 

To summarize, climate change litigation based on both international human rights law and domestic constitutions essentially emphasizes the preventive protection of substantive human rights. The common difficulties faced by both lie in the construction of the basis of the right to claim and the judicial reasoning of the nature and function of rights. In traditional human rights litigation, the object and subject of basic rights are relatively singular, and a particular interest claim in reality can be precisely matched with a specific constitutional function of a basic right. The difficulty of judicial decision-making is relatively low, and the risk of disrupting the constitutional structure of the judiciary is also relatively low. However, this judicial model is difficult to sustain in climate change litigation. On the one hand, resolving climate issues through human rights provisions requires judges to clarify and supplement the vague concept of “climate legal interests,” while the basic goal of climate change litigation is to transform negative climate regulatory policies, and the claims behind the litigation involve complex and comprehensive legal interests. Therefore, most plaintiffs in climate constitutional litigation argue that “state inaction” violates a range of basic rights, including environmental rights, health rights, the right to life, and property rights, which directly leads to confusion in the correspondence between the nature and function of rights. On the other hand, the “two-part” paradigm of basic rights originated from the transformation of an administrative order from regulatory administration to service administration and benefits administration after the rise of the welfare state. However, when systemic social risks have greatly deconstructed traditional administrative paradigms, the content of the state’s risk prevention obligations becomes more complex. Basic rights often require the state to fulfill hierarchical, substantive, and procedural guarantees, making it even more difficult to judge the constitutionality of the state’s “minimum obligations.” It is challenging to provide a clear constitutional benchmark for dynamic and hierarchical risk prevention measures using the scrutiny framework of negative defense rights or positive benefit rights. 

 

 

In the above two judicial protection models for “climate human rights,” the vast majority of cases take personal interests as the most fundamental protection object and the starting point for promoting policies. This trend differs from the focus on legal interests protection in other kinds of ecological environment public interest litigation, where “environmental rights” is the sum of substantive and procedural rights with environmental elements as the object of the right, environmental interests as the subject of the right, and the enjoyment of a good environment as the main content according to environmental legal theory.³² Although scholars also acknowledge the competitive relationship between environmental rights and personality rights, the primary function of traditional environmental rights is to protect the ecological environment as an object. Some scholars have proposed that the mode of climate change litigation should be based on the resolution of environmental risks, and the litigation must focus on the damaged ecosystem and serve the sole purpose of remedying environmental public interests.³³ Therefore, there is still theoretical debate on whether environmental rights can be classified as human rights. 

 

In climate change litigation, the rigid “splitting” of the right object would cause the loss of extremely important content and value in climate governance. In scientific terms, the consequences of global climate change may be both quantifiable ecological environmental benefits “losses,” such as changes in marine fisheries resources, biodiversity, and river flow, as well as non-quantifiable systemic ecological “changes,” such as an increase in the frequency of extreme weather events. From the perspective of human rights protection, these quantifiable and non-quantifiable ecological functional changes ultimately translate into human health “risks” and “losses.”³⁴ Both legislators and judges inevitably consider personality interests as an important value and goal of climate governance in their decision-making process. 

 

The gradual integration of environmental public interests and human health interests in climate risk has been increasingly concerned by international human rights organizations. In July 2022, the United Nations General Assembly adopted Resolution A/76/L.75, which affirmed that the right to a clean, healthy and sustainable environment is a fundamental human right, and declared that the right to a clean, healthy and sustainable environment is essential for the enjoyment of all human rights.³⁵ In addition, environmental rights provisions in the constitutions of several countries also highlight “health” as an external standard for rights, such as the Bulgarian Constitution which provides that “everyone has the right to enjoy a healthy and good environment in compliance with established standards and criteria,” and the Finnish Constitution which states that “everyone has the right to a healthy living environment,” and so on. There are nearly 50 constitutional provisions that define the substantive content of environmental rights from the perspective of human health.³⁶ Therefore, the rights claimed by plaintiffs in climate change litigation mainly consist of the two core legal interests of “environment” and “health,” both of which are a combination of “negative rights” and “positive rights.” For example, if a right-holder requests the removal of obstacles or destructive behavior by private or state actors based on their freedom to control and enjoy the environment, they are actually exercising the negative defensive function of the right. Conversely, if a right-holder pursues a good environment and requests the state to regulate destructive behavior or take active measures to restore the quality of the ecological environment, they are actually exercising the positive benefit function of the right.³⁷ In terms of human rights protection, the core goal of climate litigation is to choose the “appropriate” rights from the existing human rights mechanisms and assert them, so as to enable individuals to push governments to adopt and implement stricter greenhouse gas regulations. It emphasizes the active aspect of rights. The complex legal interests undoubtedly make it difficult to confirm the substantive “climate human rights” in domestic judgments. Turning to the construction of procedural rights, individuals can be empowered to request the judicial organs to review the administrative decision-making procedures related to carbon emissions and climate risks, and promote administrative procedure reform through litigation when substantive “climate human rights” may be infringed. This can further concretize the substantive content of rights such as “environmental health” in individual cases. 

 

 

Traditionally, in legal theory, basic rights as substantive claims are only directed at the state’s “right to exclude infringement” or “right not to act.”³⁸ This has been the main area of constitutional judicialization since modern times. Constrained by this kind of thinking, judges face the risk of deviating from precedents when deriving remedies for “fulfilling positive obligations” from personality rights. Since modern times, the content and methods of state obligations have undergone two major adjustments in response to changes in social governance tasks: the rise of welfare states allowed basic rights to derive “benefit claims for material conditions,” while the expansion of risk society made such “benefit claims for material conditions” insufficient to sustain individuals’ ability to cope with risks. Therefore, state obligations have increasingly shifted towards providing “institutions” and “procedures,” creating comprehensive risk prevention systems and social conditions for society. In this process of transition, the realization of basic rights inevitably depends on legislators supplementing regulatory systems to bridge the huge gap between abstract basic rights and concrete social issues. Judicial remedies for basic rights mainly serve as a “last resort” function and cannot solve all issues of practical rights protection. However, judges often exhibit certain inertia in constitutional cases, relying too heavily on the theoretical paradigm of the claim right based on civil law, and simply judging whether the disputed claim is established based on the normative basis of the right, and one-sidedly understanding the state’s risk prevention obligation as a matter of the existence or non-existence of the claim right. This leads to common problems in classic cases such as the “Urgenda Foundation” case and the “Juliana v. United States” case: once the right is established, the judgment declares the state’s “inaction” or “insufficient action” unconstitutional; once the right is in doubt, judges use negative reasons such as “political issues” or “separation of powers” to avoid substantive review, and no longer consider whether there is a necessary correspondence between the subjective function of the right and the state’s specific institutional behavior. 

 

In fact, the extent to which climate litigation can achieve its human rights function largely depends on the specific forms in which states fulfill their obligations to prevent climate risks. The majority of climate litigation goals are not aimed at seeking remedies for “loss” or “harm”, but rather constructing regulatory measures based on the principle of risk prevention. The principle of risk prevention consists of a series  of versions ranging from the “weak” principle to the “strong” principle. The binding force of the “weak” principle of risk prevention is mainly reflected in establishing the scientific connection between the anticipated harm and preventive measures, providing a legal basis for preventive measures. The binding force of the “strong” principle of risk prevention includes controlling the safety margin of negative results, controlling the overall strength of prevention, and mandating the use of the best available technology. The decision-makers’ choice of which version of the risk prevention obligation to fulfill is based more on the “cost-benefit analysis” of public policy choices, rather than a value judgment to maximize the protection of human rights.³⁹ Therefore, although litigation plaintiffs claim that the government has an obligation to prevent negative human rights impacts by limiting greenhouse gas emissions and strengthening regulatory protections, relying solely on subjective rights cannot directly assert specific substantive preventive measures. Otherwise, the discretion of the state in responding to climate risks will be greatly reduced. 

 

At the present stage, substantive “climate human rights” lack clear normative effectiveness. The groups most affected by the adverse impacts generally lack the ability to participate and influence the climate decision-making process. Therefore, efforts should be focused on litigation paths based on procedural rights such as the right to environmental information, the right to participate in decision-making, and the right to judicial remedies. These efforts aim to supervise, regulate, and construct government climate decision-making administrative procedures, require the government to fully consider the possible adverse impacts of climate risks on citizens’ human rights in formulating climate policies, and meet the “threshold of proof” and fulfill obligations of “information disclosure” and “prudent decision-making” in risk regulation decision-making. This will allow the government’s monitoring, evaluation, and control of climate risks and human rights impacts to serve the substantive results of human rights protection. 

 

 

The historical process of the transformation of the state’s obligation is gradually shifting from a dangerous world view (modernity) to a risk world view (post-modernity) along with human society.⁴⁰ Due to the uncertainty and incomplete information of climate risks, as well as the divergence of scientific conclusions, no risk regulation measure can completely avoid negative human rights consequences. Even so, the knowledge and understanding of information that the citizens need to make decisions, which the government bases its decisions on, as well as their moderate participation as rights holders in the process of making decisions related to climate projects, plans, and policies, are all necessary prerequisites for them to take necessary measures to safeguard their human rights according to their own free will. If citizens are isolated from the climate decision-making process, there can be no talk of either “free choice” for private risk avoidance measures or “active advocacy” for minimum regulatory guarantees by the state. UN Secretary-General António Guterres has pointed out that effective public participation in decision-making is a human right that urgently needs to be protected and strengthened. The key to reshaping climate governance lies in the active participation of the public in climate decisions that affect their lives. The right to participation, as a fundamental human right, is a legal tool that has not been fully utilized in the climate field and can improve government decision-making.⁴¹

 

Although many international environmental agreements emphasize respecting the right to information, participation, and remedies for the public, the right to access environmental information and public participation has also been incorporated into some national constitutions and environmental laws.⁴² However, procedural human rights need to be concretized by law into a series of requirements, procedures, and standards of administrative procedures to have determinate normative efficacy. The exercise of the government’s administrative power increasingly affects the realization of human rights under climate risks, and therefore, the need to regulate it through due process is also increasingly necessary. However, currently, the relevant administrative procedural norms in climate legislation have not yet been fully developed. For example, the right to environmental information for citizens is the right of the “public”, including natural persons, legal persons, relevant organizations or groups, to access environmental information, participate in and supervise the environment. In response to climate change, the competent departments of the government should be responsible for disclosing national and local greenhouse gas emissions information and supervising and punishing illegal disclosure of greenhouse gas emissions information. California law regulates greenhouse gas emissions information disclosure through public oversight measures such as “public meetings” and requires prior consultation with the public and interested parties on policy adjustments involving carbon trading.⁴³ However, in most countries, relevant laws and regulations still have issues such as a narrow scope of obligation subject, unclear responsibilities of the supervisory government departments, and missing public oversight measures. 

 

In the absence of institutional norms at the legislative level for the complete procedural “climate human rights,” promoting the improvement of risk decision-making procedures through judicial rulings has become another route for climate litigation to safeguard human rights. In the development of climate change litigation, administrative procedural litigation, as a “weak” mode of judicial protection, has not received the same level of attention as subjective rights litigation. However, in fact, administrative procedural litigation, represented by environmental impact assessment litigation, is an important type of climate change litigation. Although the litigation targets are not directly aimed at the substantive content of legislation and policies, this type of case can still play a remedial and influential role promoting changes on the part of the parties involved and policies by examining procedural obligations:

 

First, the general framework provided by administrative law offers potential space for courts to interpret and establish relevant standards for climate administrative procedures. Modern legal systems typically emphasize procedural protection for substantive rights, such as the “due process clause” in the US Constitution. When there is a risk of infringement on individual substantive rights, individuals have the right to claim procedural safeguards for the protection of their right to be informed, participate, and obtain fair judicial remedies. This concept of protection for these rights is rooted in the US Constitution and administrative law, forming a series of legal rules and principles. Judges establish substantive rights and substantive legal rules progressively through case ruling. When the legal framework for addressing climate change is insufficient to support proactive climate judgments, the general administrative law may also serve as a basis for judicial decisions. In the case of “Center for Biological Diversity v. Federal Energy Management Agency”, the plaintiff argued that the US Federal Energy Management Program had used a large amount of funding to support oil and gas development projects, which had diverted funds that should have been used for climate adaptation projects and had adverse impacts on the environment and public health. However, the plaintiff did not claim that the defendant had infringed on their environmental rights or health rights. Instead, they invoked the due process clause and the Freedom of Information Act, requesting that the defendant disclose all funding information from fiscal years 2018 to 2021 to pressure the energy management agency to modify its public investment policies.⁴⁴

 

Second, several procedural systems in environmental law can also serve as legal bases to support climate litigation. Human rights provisions are usually applied in climate litigation through “principle-based” rather than “rule-based” judgments,⁴⁵ which means that judicial conclusions cannot be reached solely based on the “cause-effect” established by laws, and instead require balancing conflicting interests based on proportionality principles. When the plaintiff’s claim of substantive rights, such as “personal rights” or “property rights,” is not actually “harmed” or “lost,” the litigation strategy based on substantive human rights may be obscured by the legitimate rights of the opposing party (as in the common conflict between the plaintiff’s “personal rights” and the defendant’s “property rights”), becoming a real obstacle to the plaintiff’s victory. On the contrary, several procedural systems in environmental law, such as environmental impact assessments, go beyond individual damage relief and focus on strengthening the government’s decision-making by conducting prior analysis and assessment to prevent environmental interests from being marginalized during the decision-making process, which may lead to serious environmental damage. Therefore, the purpose of these systems is more consistent with climate risk prevention. Considering that environmental interests have the attribute of public interest, judicial practice has gradually relaxed the standards for the plaintiff’s qualifications in such administrative procedural litigation, for example, recognizing the standing of residents who bear environmental risks in risk cluster projects and the standing of those who are indirectly affected by the inaction of administrative authorities.⁴⁶ Although strengthening the 

environmental impact assessment process cannot guarantee that the substantive results of the decision meet the requirements of “climate justice,” courts in such cases can maintain a high degree of respect for the administrative agency’s substantive policy judgments, avoiding the “either prove or presume” dilemma. This obviously reduces the difficulty of substantive review in the case and to some extent, avoids the low success rate and closure rate faced by litigation based on substantive “climate human rights.”⁴⁷

 

 

Article 12 of the Paris Agreement stipulates that “parties shall cooperate in taking measures, as appropriate, to enhance climate change education, training, public awareness, public participation and public access to information, recognizing the importance of these steps with respect to enhancing actions under this Agreement.”⁴⁸ International environmental law documents such as the Aarhus Convention are also committed to protecting substantive environmental health rights through the improvement of procedural rights, and they establish information access, public participation in decision-making, and access to justice as the “three pillars” of procedural environmental human rights. Judicial review focuses on safeguarding public information access and participation in decision-making. This is not only a necessary system to counteract arbitrary administrative power but also a way to maintain the aspect of negative freedom of individuals by forming “information and exchange channels that run through the process of public policy formulation and implementation between administrative authorities and private individuals.”⁴⁹

 

In order to make administrative decision-making as responsive as possible to human rights protection needs under climate risks, domestic administrative law must improve and update the basic concepts and institutional design of regulating administrative procedures for climate risks. The emergence of the “third generation” administrative procedural paradigm provides an opportunity for this. The “third generation” administrative procedure is a new hybrid procedure that “responds to the continuous development of governance methods and new models.” Traditional environmental administrative procedures are mainly constructed according to the “command-control” governance model, which is highly closed and rigid. The “third generation” administrative procedure strengthens the public participation mechanism of the procedure, and incorporates more subjects into the decision-making process to carry out continuous negotiation, communication of information, knowledge, interests, and values, while strengthening the procedural process. It sets different procedural devices for risk assessment, risk management, and risk communication stages, matching the realistic needs of risk regulation in each stage.⁵⁰ The basis for initiating climate regulation is the assessment of the potential consequences of, system sensitivity and exposure to climate change and the adaptive capacity in response. Climate risks and systemic adaptive capacity may change over time, so ideally decision-makers should not only periodically update climate risk assessment reports but also conduct “one topic for one matter” risk assessments on administrative planning and key projects that have potentially significant climate impacts. In recent years, climate risk assessments have gradually become institutionalized, becoming an important basis for improving administrative procedures in response to climate risks, and they will also be a key focus of future judicial supervision. 

 

The first is the climate risk assessment and public participation systems in climate change legislation. Climate change-specific legislation typically includes regular climate risk assessment reports as the scientific basis for policy and makes public participation a mandatory process for compiling reports. For example, the UK’s Climate Change Act requires the Climate Change Committee to submit regular climate change risk assessment reports (divided into “progress reports” and “topic reports”), and regular communication with a “public participation group” composed of the government, businesses, academia, and citizens is part of their statutory duty during the report-making process.⁵¹ Although public communication is mainly conducted through informal procedures such as workshops, roundtable meetings, and soliciting opinions, granting the public the right to participate and suggest risk issues has indeed enhanced the transparency and information support of climate risk decision-making.

 

Second, climate risks should be incorporated into the environmental impact assessment system. The environmental impact assessment system embodies the “principle of prevention” in environmental law. Although there are differences in the environmental impact assessment systems of various countries, their fundamental institutional logic is to consider the potential environmental consequences of private and public environmental behaviors in decision-making in advance, in order to avoid the marginalization and serious harm of ecological environmental interests in decision-making. The environmental impact assessment system has great institutional potential in safeguarding citizens’ right to access climate decision-making information and strengthening the government’s obligation for “prudent decision-making.” This system also includes mechanisms for protecting the public’s participation rights, such as accepting public comments and responding to public opinions. Incorporating climate risks into environmental impact assessments is the most important way for judicial supervision of administrative procedures. As most countries’ legislation has not yet made carbon emissions mandatory for assessment, judges mainly decide whether the failure to fulfill climate impact assessment procedures will affect the effectiveness of administrative actions based on general principles of administrative law. 

 

The third is the health impact assessment of climate change. The IPCC Fifth Assessment Report pointed out that enhancing the ability to adapt to climate change is a necessary task for countries to respond to the health risks of climate change. Health risk assessments of climate change are mainly used to guide the government’s public health decision-making. These may be presented as an independent policy report or as a component of comprehensive climate adaptation administrative planning. Health risk assessments help to enhance the climate adaptation ability of vulnerable populations, assists citizens in recognizing and responding to climate health risks, and chooses disease prevention plans in advance. For example, the “Building Resilience Against Climate Effects” (BRACE) framework developed by the US Centers for Disease Control and Prevention focuses on identifying potential health risks and the population and regional distribution with the greatest correlation, assisting states in developing adaptive policies for health risks.⁵² The United States, Canada, United Kingdom, Australia, and other countries have all established different forms of health impact assessment procedures in their policies and plans for addressing climate change. However, these assessments mainly fall within the scope of government planning and public policy, and legislative regulations and legal oversight mechanisms still need to be improved. In practice, cases in which courts conduct judicial reviews of health impact assessments of climate change are not yet common. 

 

 

Recently, there has been relatively little specialized research on procedural climate judicial review by domestic scholars, while foreign research on its institutional functions is not optimistic. The main reason for this is this type of judicial model belongs to “objective illegality review,” and the space left for judicial discretion is limited, with its effectiveness being strongly constrained by specific provisions of administrative procedure law.⁵³ However, such judgments are mainly based on theoretical speculation. The actual effectiveness of the litigation system should be tested by key indicators such as the number of cases, success rates, and policy impact. Although the legislative process for administrative procedures related to climate decisions is still ongoing in various countries, the number of cases related to this issue has already exceeded 600.⁵⁴ Even before the Paris Agreement and the enactment of climate-specific legislation, courts in the United States, Australia, and other places have already ruled in favor of plaintiffs in a large number of such cases, involving core industry issues related to climate change such as overseas energy plans, fuel efficiency standards, transportation infrastructure construction plans, and climate investment and financing. It is evident that judicial authorities can still strengthen their supervision of administrative authorities and protect citizens’ procedural human rights through active judgments while performing their procedural review functions. 

 

First, judicial approaches conduct progressive adjustments to the administrative procedure system. Modern administrative law regards judicial review of violations of the “right to due legal process” as an important way to safeguard procedural rights, particularly in common law countries such as the United Kingdom and the United States, where judges review administrative procedures to ensure that government decisions are made in such a way that they have “the appearance of justice.” Based on the general principles of administrative procedure law, such as the United Kingdom’s principle of “natural justice” and the United States’ principle of “prohibition of arbitrariness,” courts ensure that administrative procedures meet the minimum requirements of fairness, and the accumulation of judicial precedents can progressively promote the improvement of the administrative procedure system. The protection of procedural “climate human rights” by courts does not necessarily require litigation clauses related to climate decisions to be included in administrative procedure regulations as a precondition. The court has a certain degree of judicial discretion in reviewing administrative procedures. For example, the National Environmental Policy Act (NEPA) in the United States does not mandate the assessment of climate change risks in projects and planning environmental impact assessments. However, the court’s series of judgments have been the main driver for promoting the incorporation of climate factors into environmental impact assessments. In the case of “Friends of the Earth v. Peter Watson” in 2005, the plaintiffs claimed that two financial institutions provided financing for the “Overseas Energy Plan,” and the city government should have conducted an environmental impact assessment of the potential increase in greenhouse gas emissions. The court ruled that the matter was subject to adjustment under NEPA, and that the government’s failure to include potential carbon emissions in the environmental impact assessment constituted “administrative arbitrariness.”⁵⁵ In some other cases, “insufficient” disclosure of climate risks in environmental impact statements may also lead to administrative decisions being overturned, as seen in the case of “Mid States Coalition for Progress v. Surface Transportation Board.” Although the plaintiff had already disclosed their plans to emit carbon in the environmental impact statement, the court still held that the plaintiff’s construction of a railway would change the cost of coal procurement for power plants, indirectly increasing the use of low-sulfur coal, and that potential climate impacts must be evaluated.⁵⁶ These judicial precedents have raised the importance of greenhouse gas inclusion in environmental impact assessments by federal and state legislative bodies. For example, in 2016, the Council on Environmental Quality (CEQ) issued the Final Guidance for Federal Agencies and Institutions to Consider Greenhouse Gas Emissions and Climate Change Impacts in National Environmental Policy Act Assessments. In 2018, the California Environmental Quality Act added provisions for evaluating carbon emissions in project construction.⁵⁷

 

Second, judicial approaches actively safeguard citizens’ procedural rights. In terms of the symmetry of rights and obligations, administrative authorities’ climate “prudent decision-making” includes the obligation to make rational decisions based on scientific evidence and to provide sufficient reasons for decisions. Judicial review, on the other hand, safeguards the rights of parties involved to demand that decision-makers provide reasons (the right to reason-giving) and to obtain information (the right to be informed).⁵⁸ The appropriate role of the judiciary is to ensure that the administrative authorities have rigorously examined the climate risks associated with their actions and confirmed that their decisions are supported by sufficient scientific evidence and documentation. To ensure the realization of citizens’ rights, the court may deliberately relax the limitations on plaintiffs’ eligibility during the review process. For example, in the “Friends of the Earth v. Peter Watson” case, the defendant argued that the plaintiff had no evidence to prove a necessary causal relationship between the alleged behavior and climate change. However, the court adjusted the standards for plaintiff eligibility, holding that the plaintiff only needed to demonstrate that the environmental impact assessment might affect the final result of federal administrative decisions and that administrative decisions might result in potential harm to the plaintiff, without requiring an immediate occurrence of actual harm as a prerequisite for party eligibility. 

 

Third, administrative authorities’ procedural obligations can be dynamically adjusted based on scientific consensus and scientific progress. In early climate judgments, the courts tended to passively avoid climate change controversies, primarily because the degree of scientific consensus on climate risks was low, and judicial intervention was likely to be criticized as “judicial politicization.” As climate risks have gradually become a mainstream social consensus, all climate risk decisions are based on the inseparability of science and politics. Judicial reviews are also a micro-decision-making scenario for scientific evidence exchange and scientific consensus reconstruction. Therefore, courts tend to dynamically adjust procedural review standards based on scientific progress to respond to the institutional needs of dynamic risk prevention. For example, in 1997 and 2007, two lawsuits were brought against the National Highway Traffic Safety Administration for failing to include carbon emissions in environmental impact assessments when developing fuel efficiency standards. The court’s standard of review of the administrative procedure was markedly different in these two cases: in the first case, the court ruled that the evaluation process did not substantially assist in addressing climate change, and therefore rejected the plaintiff’s claim. However, in the second case, the court overturned the precedent, stating that climate change was already a “scientific consensus,” and the previous conclusion was made in the context of insufficient scientific evidence at the time. The approaching risks of climate change compressed the space for administrative discretion, and the defendant could not evade the obligation to include a climate impact assessment.⁵⁹ In addition, the court believed that the administrative agency’s obligation to provide reasoning was greater as scientific evaluation methods have been developed to a higher level. In the “High Country Conservation Advocates v. United States Forest Service” case, the defendant argued that they “could not accurately estimate carbon emissions and analyze the cost-benefit of policies based on climate factors.” However, the court pointed out that the administrative agency has an obligation to refer to reliable carbon emissions cost-benefit methodologies for policy evaluation and cannot deliberately evade or ignore available evaluation technologies and methods.⁶⁰

 

 

Under climate risks, the increasing demand for citizen rights inevitably leads to an increase in national obligations. In climate litigation, where tangible subjective rights are sought, the function assigned to judicial rulings is expected to provide not only relief for individual rights but also, more importantly, through the accumulation of precedents, to gradually transform the abstract “climate human rights” into a regulatory system in objective laws. However, the realization of basic rights depends more on the institutional conditions and action plans formed by legislation. Against the background of the integration of climate law interests and the increasing complexity of national risk prevention obligations, it is difficult for courts to accurately define the scope of requested rights. It is hoped that judicial authorities can improve their review intensity and reverse-push for more complete legislation, but there are many obstacles to this path. Therefore, the greater institutional potential for future climate change litigation lies in the review of administrative decision-making procedures. Judges, through limited active judgments, can ensure that procedural justice serves the protection of substantive human rights.

 

(Translated by LI Donglin)

 

* SUN Xueyan ( 孙雪妍 ), Postdoctoral Researcher at the School of Environment, Tsinghua University, Doctor of Laws.

 

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46. Wu Yu, “Legal Interest and its Protection in Stakeholder Litigation of EIA,” Journal of Chongqing University (Social Science Edition) 3 (2021): 181-190. 

 

47. Data source: Data platform of Sabin Center for Climate Change Law, Columbia University, statistics as of June 30, 2021. 

 

48. UNFCCC, The Paris Agreement, accessed September 20, 2022. 

 

49. Lee M., Abbot C., “The Usual Suspects? Public Participation under the Aarhus Convention,” 66 The Modern Law Review 1 (2003): 80-108.

 

50. Qi Jiangang, “Theoretical Interpretation of the Third Generation Administrative Procedures,” Global Law Review 5 (2013): 151-167. 

 

51. Averchenkova A., et al, “The Impact of Strategic Climate Legislation: Evidence from Expert Interviews on the UK Climate Change Act,” 21 Climate Policy 2 (2021): 251-263.

 

52. Kemm J., “Health Impact Assessment: A Tool for Healthy Public Policy,” 16 Health Promotion International 1 (2001): 79-85.

 

53. Stein A L, “Climate Change Under NEPA: Avoiding Cursory Consideration of Greenhouse Gases,” Colo. L.Rev. 81 (2010): 473.

 

54. The statistical criteria are: climate cases based on administrative regulations on administrative information disclosure such as the Administrative Procedures Act and the Freedom of Information Act. 

 

55. 02-4106-Friends of the Earth, Inc. et al v. Watson et al.

 

56. Mid St. Coal. Progress v. Surface Transp. BD, 345 F.3d 520 (8th Cir.2003).

 

57. Hein J.F., “Jacewiez N. Implementing NEPA in the Age of Climate Change”, Mich. J. Envtl. & Admin. L. 10 (2020): 1.

 

58. Wang Xixin, “Study on the Procedural Rights of Relators in the Administrative Process,” China Legal Science 4 (2001): 75-90.

 

59. Natural Res. Def. Council v. Natl Highway Traffic Safety Admin., 894 F.3d 95 (2nd Cir.2018).

 

60. High Country Conservation Advocates v. United States Forest Serv., No.20-1358 (10th Cir. Apr.4, 2022).