Judges support planet

Lord Carnwath finds grounds for optimism, despite the setbacks

Courts across the world are recognising that the environment needs constitutional protection, a former UK Supreme Court justice said last night.

Lord Carnwath CVO

In a retrospective lecture at the London School of Economics to mark his 80th birthday, Lord Carnwath CVO spoke of what he saw as one of the most important and encouraging developments during his time in the law:

That is the growing, and now almost universal, recognition of the environment as requiring constitutional protection, whether or not explicitly covered.

Constitutions or human rights conventions (such as the European Convention on Human Rights) dating from earlier periods make no explicit reference to the environment. However, in the 1990s some courts, led by the India Supreme Court, began to interpret general guarantees of the right to life as including the right to a healthy environment in which to live.

Thus the Supreme Court of Pakistan in 1994 held that “life” did not mean just “vegetative or animal life” or “mere existence from conception to death” but “includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally”.

Carnwath referred to a judgment on climate change delivered by the human rights court almost a year ago. It was on a claim against Switzerland brought by a group of women, mostly in their seventies or older, who formed an association called KlimaSeniorinnen — meaning senior women for climate protection.

They argued that their demographic group was particularly vulnerable to climate-induced heatwaves. One told me she couldn’t leave home for about three weeks in the summer. The court held that their association had the necessary standing to bring a claim — although the individual claimants did not.

As I reported at the time, the UK judge was the only member of the court who dissented. Judge Eicke KC accused his judicial colleagues of going beyond what was legitimate and permissible. He believed the courts could not provide an answer to the problems of climate change and that litigation would not speed up the measures that were needed. Eicke reiterated his concerns in a lecture last month.

Referring to the KlimaSeniorinnen ruling, Carnwath said last night:

Some have criticised this decision as an inappropriate extension of the [human rights] convention to subjects which were never in the contemplation of the original parties.

That may be right, but I do not share their concerns. I see no practical harm and much good in the judicial extension of the convention to encompass rights which have long been accepted by judges round the world as fundamental to human existence.

Carnwath retired from the UK Supreme Court five years ago. Delivering his lecture at an event hosted by the LSE’s Global School of Sustainability, the Grantham Research Institute on Climate Change and the Environment, and the LSE Law School, he was critical of Donald Trump’s approach following the US president’s re-election:

Hopes that sanity, or even business common sense, might prevail were rudely dashed. One of the new president’s first acts was to start the process of removing US from the Paris Agreement. This was under an executive order bizarrely entitled “Putting America First in International Environmental Agreements”.

Carnwarth quoted an interview in which Lee Zeldin, the newly-appointed administrator of the US Environmental Protection Agency, recalled “talk through the years about how the world was imminently about to end because of climate change”. Those predictions had come and gone, Zeldin added, and the world was still here.

This month, Zeldin announced 31 initiatives aimed at “driving a dagger straight into the heart of the climate change religion”. One of the policies he sought to reverse — the so-called endangerment findings of 2009, had followed a US Supreme Court ruling from 2007 regulating greenhouse gas emissions from cars.

Carnwath said:

Of course it would be wonderful if the Environmental Protection Agency team, in their review, were able to discover that greenhouse gases are indeed harmless and that our worries are groundless. Unfortunately, whatever Mr Zeldin may say or hope, the scientific basis of that endangerment finding has never been disputed in the courts, even in cases to which last Trump administration was a party…

So we will watch with interest Mr Zeldin’s attempts to turn back the clock. It remains to be seen how the courts will respond to the challenges which there will undoubtedly be. I may be naïve, but — optimistic as ever — I am hopeful that the US courts will find it hard to accept that the Environmental Protection Agency, as a statutory body, can lawfully adopt an approach which flies in the face of all scientific reality.

Addressing the UN Security Council in 2021, Sir David Attenborough said climate change was a threat to global security that could be dealt with only by unparalleled levels of global co-operation.

Carnwath had been given “strict instructions to introduce a note of optimism” into his lecture. And so this was his conclusion:

As I was cutting my 80^th birthday cake last week, I was told that I had to make a wish. That was easy: my birthday wish was that the whole world, including the USA, will come back to recognise the truth of Sir David’s statement and the desperate need to act on it urgently.

In spite of everything, I remain optimistic that my birthday wish will come true.