Fighting climate change through the courtroom

Climate change is a ‘hot’ button issue in Pakistan. Both literally and figuratively. Summer 2022’s disastrous floods submerged almost a third of the country under water, affecting 33 million people, and displacing eight million.

2024’s heatwave is currently in full swing, with the Pakistan Meteorological Department reporting that nationwide temperatures are five to six degrees Celsius above normal. This has led to a surge in heatwave-related casualties with over 568 dead, and more than 5000 hospitalised.

Apart from this, glaciers are rapidly melting, and forest fires have increased due to the harsh weather. In the backdrop of this fast-escalating crisis in the worlds fifth most climate-vulnerable country, the judiciary’s intervention is integral.

Recognising the importance of the climate crisis, the keen interest taken by Superior and District judiciary is highly commendable. First, a look at the recent Climate Change Conference organised by the Law and Justice Commission in the Supreme Court. It was attended and chaired by Chief Justice Qazi Faez Isa, Justice Mansoor Ali Shah and Justice Ayesha Malik.

The Chief Justice, called climate change an “Illness and sickness of the Earth, as a fever is to the human body.” He emphasised the importance of protection and preservation of natural life and the environment and urged the participants to play their part in spreading climate awareness.

Justice Mansoor Ali Shah, remarked that climate protection cases are still not mainstream and urged all judges to deal with them like serious human rights issues. He said it was time to go beyond human-centric approach and begin protecting nature.

Further, he encouraged the use of Alternative Dispute Resolution and Commercial Courts to solve climate issues. He gave the idea of a ‘Global Court’ as a forum for Pakistan to claim losses of $15-20 Billion as a result of the 2022 floods, attributed to fossil fuel emissions from the Developed nations.

Justice Ayesha Malik delivered an insightful presentation on Environmental Jurisprudence and its enforcement. She mentioned the Asghar Leghari case, where the court formed a commission to deal with an environmental protection case. She revealed that this case ultimately brought about the current Climate Change policy at the national level and even played a part in forming the Ministry of Climate Change.

Justice Ayesha informed the audience about the tools the court uses to deal with environmental protection cases like zoning laws, which are laws that limit the commercial or industrial use of land. She urged the courts to push for enforcement of climate laws.

The Justice also mentioned how women and vulnerable groups were most affected by climate change. Further, she talked about how the courts made use of Public-Private partnership, which played a pivotal role in helping the government fight climate change in public spaces where it lacks the requisite funding.

Lastly, she mentioned that courts play a huge role in battling climate change by the method of Calling for Reports and Information in cases related to climate change. This leads to the creation of reports, data and documentation.

Secondly, last week’s lecture at the Federal Judicial Academy, titled ‘Climate Causality: From Causation to Attribution’ conducted by Ms Petra Minnerop, the Founding Director of Durham University’s Centre for Sustainable Development Law and Policy (CSDLP), is also of profound importance.

Organised by Justice Mansoor Ali Shah (Supreme Court), Justice Jawad Hassan (Lahore High Court), and Judge Fakhar Zaman (Federal Judicial Academy), the lecture was attended by judges, magistrates and law officers from all over Pakistan.

Ms Minnerop discussed the importance of ‘Climate Causality’, which refers to the causal chain connecting climate change to losses. It plays a part in minimising the loss and damage from climate change, a duty recognised by courts, and enshrined in Art 8(1) of the Paris Agreement.

She explained how Causation and Attribution are intertwined legal concepts in global climate jurisprudence. The main obstacle faced by the courts is establishing causation.

The Professor went on to give examples of case law from around the world, from the United States, to France, to Phillipines. Cases were brought against both governments and corporations, alleging their complacency or direct involvement in exacerbating climate change.

For example, she explained how in the Australian case of Gloucester Resources Ltd VS Minister for Planning, a proposal for construction of an open-cut coal mine was rejected by a court on environmental grounds, including the projected carbon emissions that would arise from its operation. Such cases were highlighted to encourage the judiciary to take a proactive approach in cases related to climate change where the necessary criteria have been met.

She elucidated that evidence was crucial to prove a claim in climate litigation, citing the convergence of observation and climate models. The intensity of climate events confirmed by climate models, make or break a case.

The lecture followed a Question and Answer session, where a civil judge questioned Ms Minnerop as to why Pakistan was bearing the brunt of climate change alone while it was amongst the lowest contributors to carbon emissions worldwide.

Ms Minnerop replied that Pakistan was a signatory to the UN Framework Convention on Climate Change (UNFCCC), as well as among the more than 100 countries to pledge to curb methane emissions and deforestation at COP26.

She added that Pakistan was responsible to take a serious approach towards its nationally determined contribution and sustainable climate projects to collect the climate finances pledged by the Developed countries at COP28.

Further, she suggested that Pakistan needs to have verified data-sets available regarding climate change developments and needs to have proper legislation and research in place to take advantage of climate litigation as a useful tool in combatting climate change.

Ms Minneropended the lecture by thanking the judges and law officers for their interest and willingness to play a role in curbing climate change through their respective domains. This recent upsurge of awareness regarding Climate Change taken up by the nation’s judiciary is commendable and gives the citizens a hope for a clean, green and sustainable Pakistan.