Appellants’ Supplementary Factum

Appellants’ Supplementary Factum (opens as a PDF in your browser)

We filed a Supplementary Factum on May 27, 2020, that addresses two recent judgments by foreign courts that are relevant to questions raised by our appeal case.

The case known as Urgenda Foundation v. The State of the Netherlands, decided by the Hague Court of Appeal on October 9, 2018, and upheld by the Supreme Court of the Netherlands on January 13, 2020, is the first time any court in Europe or North America has issued a ruling on the imminence of the very serious impacts that will be caused by climate change based on a full trial and detailed assessment of the available scientific evidence.

The Dutch court sets out in detail the evidentiary basis of its ruling on that issue. The decision is founded on a series of scientific findings cited in the judgment, including a careful analysis of the atmospheric carbon concentration level, its past and current rate of increase, the significance of the 450 parts per million (ppm) level, and the irreversibility of accumulating levels of carbon dioxide in the atmosphere. The framework of evidentiary material presented in the Dutch case is almost identical to that which we presented in our case. The court concluded after its review of the evidence that climate change is “a real and imminent threat”:

As is evident from the above, the Court believes that it is appropriate to speak of a real threat of dangerous climate change, resulting in a serious risk that the current generation of citizens will be confronted with loss of life and/or loss of family life”. (emphasis added)

The second recent foreign case we cite is a decision by the Law and Environmental Court of New South Wales in Gloucester v. Minister for Planning.  In both the Dutch and Australian cases, a crucial issue is whether promised future emissions reductions will be sufficient to offset current plans to increase emissions. The question is whether, based on the evidence presented to the court, the judges could properly draw an inference that the massive scale of the emissions cuts required over the coming decades to keep atmospheric warming within the 1.5°C threshold (or at least within the 2°C limit) is feasible. In the Australian case, the proponent of a new coalmine project argued that the increased emissions caused by the burning of additional coal production would have no harmful climate effect, because in future other countries or other industries could be expected to reduce their emissions. The Court refused to accept that argument:  

I do not accept this reason. It is speculative and hypothetical. There is no evidence before the Court of any specific and certain action to “net out” the GHG emissions of the project. A consent authority cannot rationally approve a development that is likely to have some identified environmental impact on the theoretical possibility that the environmental impact will be mitigated or offset by some unspecified and uncertain action at some unspecified and uncertain time in the future… (emphasis added)