An unprecedented international ‘model statute’ will allow citizens to hold governments (or at least law-abiding governments) to account for insufficient measures taken to address climate change, a global representative body said today. The Model Statute for Proceedings Challenging Government Failure to Act on Climate Change will be unveiled by a working group of the International Bar Association tonight.
According to the group, the statute provides 'detailed rationales, precedents and 23 specific articles for reforms which will enable citizens to ask for judicial review of the sufficiency of their government’s climate measures'. It would be no defence for a government to argue that it is a minor contributor to greenhouse gases - or that regulation of climate change is non-justiciable as a political, policy, executive or legislative function.
The group's co-chair, Canadian environmental specialist David Estrin, said the statute is 'intended to lower the procedural legal hurdles many citizens face when trying to access the courts'. These include courts denying standing to bring on the case and the chilling effect of costs orders. 'The Articles of the Model Statute, where adopted by courts or legislatures, would allow these hurdles to be lowered or eliminated,' the IBA said.
Article 23 of the statute states that except in exceptional circumstances, the court should not order an unsuccessful plaintiff to pay the costs of a successful government defendant.
The IBA notes that the 'non-justiciable' defence has been rejected by 'a number of courts'. These include the Netherlands Supreme Court, which in Urgenda last year ordered the government to step up cuts in emissions. It found that, while policy issues are for government, the courts have their own part to play in deciding whether governments are within the limits of laws by which they are bound.