Posted by Sam Fenny - Memes and headline comments by David Icke Posted on 10 April 2024

The Ominous Rise of Climate Change Litigation

I was once in the audience at a conference when a very senior member of the judiciary of a major developed nation declared off-handedly, in a response to a question, that: “Law is relevant to every single issue of human conduct.”

It was a revealing remark and I noted it down verbatim. I often think about it. To somebody armed with a hammer, every problem looks like a nail; to the judge, every problem looks like a court case. This is, I suppose, to be expected. And at that level the statement was almost oxymoronic.

But the comment also expressed something deeply important about modern societies. The German social theorist Niklas Luhmann described such societies as being divided into distinct communicative systems (politics, law, economics, medicine, mass media and so on) wherein the environment – meaning the underlying real world – is processed by a system of code into a communicative format which is digestible to the system proper. For the legal system, that code is ‘lawful/not lawful’: everything in the system’s environment must be understood in those terms, and the whole of reality (in the eyes of the legal system) is encompassed in that dynamic. It follows of course that nothing can happen that cannot be thought of by the legal system on the basis of it being lawful/not lawful, legal/illegal. Anything and everything that has ever happened, or potentially could ever happen, is either one or the other.

Sooner or later, then, it was inevitable that the climate itself – the literal environment – would be subsumed within this logic, and that human interactions with the very world in which we live would become subject to this binary coding. And so what was inevitable has indeed come to pass, in the form of two separate suites of litigation happening at opposite ends of the world, in Europe and New Zealand respectively.

One runs great risks when discussing the ins-and-outs of litigation that is ongoing. Judges can be unpredictable buggers. And one runs even greater risks in this regard when discussing litigation that falls to be decided imminently. This post will go out on April 8th and it concerns three cases in which the judgments will be handed down on the 9th. Those of you who read the post in time will therefore be able to follow along in real time, as it were, and see how accurate my predictions were. But, as I will emphasise towards the end of the post, in one important respect it actually doesn’t really matter what the outcomes are.

New Zealand first, then – land of lamb, pinot noir and weird names for rugby positions. In the recent case of Michael John Smith v Fronterra Cooperative Group Ltd and Ors [2024] NZSC 5, the Supreme Court of New Zealand overturned the decision of a lower court to strike out a claim (meaning, to deny a hearing) to a Maori elder who wanted to sue various New Zealand companies who were involved in the emission of greenhouse gases. The idea here is that the ‘climate crisis’ is endangering lands of cultural and spiritual significance to this man’s clan, and that the emission of greenhouse gases is a civil wrong – a tort – which should provide him (and presumably his people) with a monetary remedy. It’s either a public nuisance, negligence or an entirely new tort of “climate system damage”. The NZ Court of Appeal had earlier struck out the claim as being manifestly bound to fail – reasoning, I think pretty sensibly, that:

The magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.

In other words, if one grants that climate change is an issue which we will have to deal with in some respect (a position I agree with by and large), then that should happen through the democratic political process and not litigation. It’s a matter for parliaments, not courts. And so the case should not be heard.

The Supreme Court disagreed. Declaring, ominously I think, that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity”, it decided that the claim should proceed to a full hearing. This does not mean it decided the issue one way or the other, but rather that said issue will now actually fall to be determined by a court (inevitably, ultimately, the Supreme Court itself). This will presumably happen later this year, although I am not familiar with the speed with which the wheels of justice turn down in Wellington.

Europe next – specifically Strasbourg, land of Eurocrats, Alsatian dogs and Franco-Prussian antagonism. The Grand Chamber of the European Court of Human Rights will on April 9th 2024 hand down its decisions in the three conjoined cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France and Duarte Agostinho and Others v Portugal and 32 Others. In its judgments it will determine roughly the same issue as the NZ Supreme Court from the opposite direction, as it were. Whereas in Smith the dispute is in private law, and the claimant seeks compensation from the corporate defendants for the torts in question, in these cases the matter is one of public law: whether governments are breaching the human rights of their populations in failing to respond adequately to the aforementioned ‘climate crisis’.

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