| April 2017 Participants of March for Science in Saint Paul Minnesota Source Kids want Climate Justice Wkicommons cropped from original shared under license CC BY SA 20 | MR Online April 2017 – Participants of March for Science in Saint Paul, Minnesota. (Photo: Kids want Climate Justice – Wkicommons / cropped from original / shared under license CC BY-SA 2.0)

We won’t win climate justice in court

Originally published: Counterfire on August 17, 2023 by John Clarke (more by Counterfire)  | (Posted Aug 22, 2023)

A court case in the state of Montana has raised considerable hopes about the prospects for addressing the climate crisis through legal interventions. Represented by the non-profit law firm, Our Children’s Trust, sixteen young people brought an action arguing ‘that a provision in the Montana Environmental Policy Act has harmed the state’s environment and the young plaintiffs by preventing Montana from considering the climate impacts of energy projects.’

The Montana First Judicial District Court found in favour of the plaintiffs and deemed the provision to be unconstitutional. The Washington Post, a leading liberal U.S. newspaper, presented this legal victory in very glowing terms. The Post reported that the ‘sweeping win, one of the strongest decisions on climate change ever issued by a court, could energize the environmental movement and usher in a wave of cases aimed at advancing action on climate change, experts say.’

Julia Olson, the executive director of Our Children’s Trust, stated that this ‘is a huge win for Montana, for youth, for democracy and for our climate. More rulings like this will certainly come.’ The court’s favourable decision was delivered after compelling testimony from young people convinced Judge Kathy Seeley ‘that the state’s emissions could be fairly traced to the legal provision blocking Montana from reviewing the climate impacts of energy projects.’

The Judge also found ‘that the state’s emissions and climate change have caused harm to the environment and the youth plaintiffs.’ She wrote in her ruling that ‘every additional ton of GHG emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.’

It should be noted that Montana is an exceptionally significant location to host such a legal challenge. It ‘is home to the largest recoverable coal reserves in the country’ and, according to the plaintiffs in the case, ‘the state has never denied a permit for a fossil fuel project.’

A spokesperson for Montana Attorney General Austin Knudsen described the ruling as ‘absurd’ and stated that ‘their same legal theory has been thrown out of federal court and courts in more than a dozen states. It should have been here as well.’ She also confirmed that the decision will be appealed at the state Supreme Court.

It is already clear that fossil-fuel interests in Montana and beyond have taken note of this ruling and they can be expected to devote considerable energy to an effort to contain its impact. Immediately after the court reached its decision, Alan Olson, the executive director of the Montana Petroleum Association, declared on cue that ‘if this decision stands, it will cause great economic harm to the state of Montana.’

Relying on the courts

The Montana case does indeed constitute a victory in an ongoing effort to limit the harm caused by climate change by taking up court actions. While, on balance, the results of these have not been favourable, this is by no means the first win in a courtroom that has raised hopes that greater victories are possible through this approach.

In 2019, ‘the Dutch Supreme Court, the highest court in the Netherlands, upheld the previous decisions in the Urgenda Climate Case, finding that the Dutch government has obligations to urgently and significantly reduce emissions in line with its human rights obligations.’ In response, the Dutch government did make substantial commitments to ‘reducing capacity at the country’s three coal-fired power stations’ and took other concrete steps.

Building on the Urgenda decision, ‘Milieudefensie/Friends of the Earth Netherlands and co-plaintiffs served Shell a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations.’ In 2021, ‘the Hague District Court ordered Shell to reduce its emissions by 45% by 2030, relative to 2019, across all activities including both its own emissions and end-use emissions.’

Though the ‘Court made its decision provisionally enforceable, meaning Shell will be required to meet its reduction obligations even as the case is appealed,’ the company has dragged its feet and has continued to fight the decision in court.

There is no doubt that fossil-fuel companies view legal challenges of this kind with very considerable concern. Not only can unfavourable rulings cause them major problems but high-profile court cases focus attention on their role in environment degradation in ways that they don’t at all welcome.

The law firm Dentons rather smoothly advises its corporate clients that ‘managing litigation and regulatory risk must form a key part of any climate strategy.’ In doing this, they are also sagely warned that the ‘need to avoid accusations of climate-washing (or “greenwashing”) has become an increasingly challenging area for businesses across every sector and jurisdiction.’

An examination of the legal strategies that have been pursued on climate change certainly doesn’t point to the conclusion that they have been futile and meaningless. Indeed, it seems reasonable to suggest that such an approach is a legitimate and important method of challenging the climate vandalism of fossil-fuel companies and their enablers in government.

A turn to litigation approaches, however, starts to be problematic when its potential impact is overestimated and it becomes the main focus in trying to address climate change. Even worse, the risk is that social mobilisation will be subordinated to a strategy based principally on legal challenges. In this regard, it is necessary to have a realistic sense of how much is likely to be won in the courts.

Enemy territory

From the cases that have been considered here, we can see a very obvious problem in that court rulings can be appealed and counterclaims can be filed. Fossil-fuel companies have considerable means at their disposal to pursue such options and drag things out interminably. The Montana case, for example, will be appealed, and any concrete measures to limit the destructive activity of oil companies or mining interests that might be obtained are a very long way off.

The judicial wing of the state can and sometimes does bring down rulings that limit polluting companies. However, the ability of those companies and their political allies to delay or even avoid compliance is considerable. Moreover, courtrooms are the most decidedly enemy territory for working-class people seeking to uphold their interests. They uphold a system of law that puts the rights of capitalist property above all else. While some gains are entirely possible, it isn’t realistic to imagine that the weight of judicial rulings is going to go against the class interests of the capitalists.

In the face of the dire threat of climate change and its utterly catastrophic results, there are a couple of inescapable conclusions when it comes to the destructive course we are on. Firstly, the ‘treadmill of production’ that John Bellamy Foster speaks of, including the continued emission of carbon on a vast and lethal scale, flows from the logic of capitalist accumulation itself. We are dealing with the fundamental nature of this social and economic system and not exceptional abuses that require policy adjustments.

That being so, as long years of working-class experience have shown, the most important means by far of limiting the exploitative and destructive power of capital is through mass action and social resistance. There is absolutely nothing wrong with pursuing legal strategies and they can play an important role. However, the fight for climate justice won’t be won in the courtroom and it must be taken out onto the streets.

John Clarke became an organiser with the Ontario Coalition Against Poverty when it was formed in 1990 and has been involved in mobilising poor communities under attack ever since.

Monthly Review does not necessarily adhere to all of the views conveyed in articles republished at MR Online. Our goal is to share a variety of left perspectives that we think our readers will find interesting or useful. —Eds.