Abstract
Expertise in the form of climate change science plays an indispensable role in governmental decision-making regarding the reduction of greenhouse gases. In order to make the (peer-reviewed) climate science accessible for policy-making, an important task is given to the Inter-Governmental Panel on Climate Change (IPCC). However, reports from the IPCC—together with other scientific documents—may also be used in the courtroom. This contribution explores what role IPCC reports have played thus far in seminal court decisions in the US and Europe. Furthermore, it observes that while the IPCC will stay important for decision-making in the context of the Paris Agreement, the IPCC and its decision-making procedures have not remained uncontested in legal (and other) literature. In tandem with the important role taken or given to the IPCC, fundamental legal questions regarding the production of climate science by the IPCC have to be examined, for which the concept of “global administrative law” may be useful since it examines the legitimacy and accountability of international decision-making. If courts are indeed willing to follow statements from the IPCC or from peer reviewed articles in such a way that this amounts to standard-setting, like a specific emission pathway, the rule-making power of the executive and legislative branch will clearly become less important and may be overturned. While this can be an enormous victory for climate protection, the implied shift of power still needs to be objectively identified and discussed, particularly also in view of helping to avoid unjustified contestation of climate science.
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Notes
- 1.
The research for this contribution was finished in March 2018; only some later developments could only be concisely included.
- 2.
Carvalho and Others v Parliament and Council, Case T-330/18 (date of lodging 23 May 2018). See for further Information from the claimants The People’s Climate Case (2018) about the claim and the claimants.
- 3.
The Paris Agreement was adopted on 12 December 2015 by the Parties to the United Nations Framework Convention on Climate Change (Decision FCCC/CP/2015/L.9, “Adoption of the Paris Agreement”, 12 December 2015) and discussed by inter alia Bodansky (2016) and Montini (2015) The objectives of the Paris Agreement are formulated in article 2, including the aim to hold “(…) the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels (…)”.
- 4.
Also regulations refer to the obligation to take “scientific evidence” from the IPCC into account, see for instance article 14(3) from Directive 2003/87 from the European Parliament and the Council, as amended by Directive 209/29.
- 5.
In this respect, it needs to be examined whether and, if so, to what extent from a human rights perspective, governments have discretion to set the acceptable risk level, both with respect to potential damage to nature and to human health. See for human rights and climate change: Foster and Galizzi (2016).
- 6.
The US court decision that will be discussed in sect. “The US: Science as a Starting Point for Judging the Need for Regulating Greenhouse Gases” is framed as a “gateway case” and is characterised (in 2012) as the most significant environmental law decision of all time in the US (Markell and Ruhl 2012, p. 51); the Dutch Urgenda case to be discussed in sect. 3.4 is commonly called a revolutionary court decision since, for the first time, a court ordered a nation state to reduce its emissions more ambitiously. The lawyer co- defending the claim in first appeal wrote a book, titled Revolution Justified (Cox 2012).
- 7.
Methane, nitrous oxide, and hydro-fluorocarbons.
- 8.
See however also page 20: “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming.”
- 9.
This reasoning takes place in the consideration of standing of the plaintiffs. See Massachusetts et al. v. Environmental Protection Agency et al. (2007, p. 21).
- 10.
The petition for regulation was filed in 1999, see the Massachusetts et al. v. Environmental Protection Agency et al. (2007, p. 6).
- 11.
The “Summary for Policymakers” of the fourth IPCC report was published in February 2007, so its major findings were well known and publicized prior to the Court’s decision in Massachusetts et al. v EPA (Freeman and Vermeule 2007, p. 60).
- 12.
The dissenting opinion written by judge Scalia holds that the EPA has already said so (Massachusetts et al. v. Environmental Protection Agency et al. 2007, p. 8).
- 13.
This consideration was part of the reasoning whether the Court could hear the case, particularly seen from the requirement of redressability: it must be likely that a favourable court decision will redress the injury.
- 14.
“[A]dministration had been altering scientific reports, silencing its own experts, and suppressing scientific information that was politically inconvenient” (Freeman and Vermeule 2007, p. 57).
- 15.
At least in the case study that Caudell conducted, which was not related to climate change.
- 16.
By then the court was called the Court of Justice of the European Communities, this court is called the Court of Justice of the European Union since the Treaty of Lisbon that entered into force on 1 December 2009.
- 17.
Only in a very technical manner, references are made to IPCC guidelines in two cases (C-80/16, with reference to IPCC in opinion, and C-460/15, with reference to IPCC in opinion and judgment).
- 18.
This approach has not changed, see C-573/12, (1 July 2014) Ålands Vindkraft AB v Energimyndigheten, para. 78, also referring to Article 194 TFEU (para. 81) and then followed by a proportionality test; C 204/12 to C 208/12 (11 September 2014) Essent Belgium NV v Vlaamse Reguleringsinstantie voor de Elektriciteits- en Gasmarkt, para. 91.
- 19.
The case is under appeal.
- 20.
This statement needs to be linked to a strategy that would keep the PPM below 450, see the claim paras. 136 and 203.
- 21.
Inter alia para’s 21 and 27 of the claim, see Decision 1/CP.13; reference has been made to this table in the context of “emphasizing the urgency to address climate change”.
- 22.
To be measured against the emissions in the year 1990.
- 23.
Partly to be achieved by international emission trading.
- 24.
With however no precise reference in this para to the specific IPCC statement. A more in depth discussion would be needed to scrutinize how the court dealt with the cost-effectiveness argument and to what extent scientific reports played a role, this falls outside the scope of this article.
- 25.
It would already be interesting to make a meta-analysis to explore which different perspectives are used in the legal commentaries to the Urgenda court decision. For instance, the position of the court vis-à-vis the executive is one important dimension.
- 26.
Principles Governing IPCC Work, principle 4, says “Major decisions of the IPCC will be taken by the Panel in plenary meetings”.
- 27.
Conference of the Parties to the UNFCCC, Decision 1/CP.21, FCCC/CP/2015/10/Add.1 (2015), para. 21.
- 28.
As observed by French and Pontin (2016) who illustrate that the IPCC may have to deal increasingly with this challenge, particularly in Working Group III where the politics of climate change are less translated into authoritative science.
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Peeters, M. (2021). Climate Science in the Courts. In: Abazi, V., Adriaensen, J., Christiansen, T. (eds) The Contestation of Expertise in the European Union. European Administrative Governance. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-54367-9_7
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