-former Justice of UK Supreme Court
Former Justice of the UK Supreme Court, Lord Carnwath CVO has underlined the important role of the judiciary in enforcing environmental protections and says that judgments in common law jurisdictions ought to be respected here.
On February 15th, Lord Carnwath delivered a lecture at Cara Lodge entitled, `The Crucial Role of Judges in Forcing Politicians to Face Up to Scientific Reality’.
The Commonwealth Law Association, in collaboration with Stanbrook Prudhoe and the Justice Institute Guyana hosted the lecture.
Lord Carnwath opened his address by reflecting on the role of judges in relation to environmental law. He highlighted the significant strides made since the 2002 Global Judges’ Symposium in Johannesburg, where senior judges from over 60 countries convened at the invitation of the United Nations Environment Programme. The conference produced the “Johannesburg Principles,” which affirmed the judiciary’s essential role in enforcing environmental protections and the need for judicial training in environmental law. Lord Carnwath emphasized how this international recognition underscored the crucial task of judges in balancing science, law, and policy to address climate challenges.
“The central role of the judiciary in protecting the environment received worldwide recognition in 2002,” he said. “That recognition, coupled with the ongoing advancements in environmental legal frameworks, signals that judges must hold governments accountable in taking action on climate change.”
Drawing from his experience in both the UK and internationally, Lord Carnwath spoke about the critical link between scientific understanding and political action. He recalled a lecture he delivered in Kuala Lumpur in October 2014, during which he explored the theme “Environmental Law in a Global Society.” The lecture was part of an annual series led by senior judges and was inspired by remarks from Sultan Azlan Shah, the former Chief Justice of Malaysia, who poignantly noted: “Law is the bridge between scientific knowledge and political action.”
Global issue
Lord Carnwath also stressed that climate change policy is a global issue that requires cooperative solutions, noting the shifting dynamics between the United States and China. He said that despite political divides, the scientific consensus on climate change is growing stronger, and the key challenge is translating this understanding into political and legal action.
He addressed recent legal cases that demonstrate how the judiciary is upholding the rights of individuals and communities in the face of climate change. Lord Carnwath discussed the two major themes from 2024 cases: the unanimous acceptance of the scientific consensus on climate change, and the affirmation of the right to protection from the harmful effects of climate change.
In a subsequent exclusive interview with Stabroek News, Lord Carnwath elaborated on the relevance of common law jurisdictions, such as Guyana’s, to climate change litigation. He pointed to several significant cases in other common law countries, such as the UK, New Zealand, and the United States, that have addressed the impact of fossil fuel projects on the environment. Lord Carnwath highlighted the importance of following precedents set by leading courts in common law jurisdictions, particularly from the UK. He referred to the Finch case, which addresses the considerations involved in approving oil developments and the impact of Scope 3 emissions.
“I would expect such judgments from prominent common law courts to be respected here,” he remarked, emphasizing that local courts typically follow these rulings. He also referenced decisions from the New Zealand Supreme Court and the US state of Montana, with the latter especially relevant to the current context. Additionally, Lord Carnwath noted the similarities between Colombia’s environmental protections and those enshrined in the constitution, suggesting that this could provide valuable insights for local judges. However, he was quick to add, “I’m not here to dictate to the judges here how to do things.”
One notable case, Lord Carnwath discussed in his lecture was the 2018 judgment of Colombia’s Supreme Court in the “Future Generations” case. This landmark ruling highlighted the constitutional protection of the environment in Colombia, where 25 young claimants challenged the state for failing to preserve the Amazon against deforestation. The Court ruled that the state’s regulatory failures violated the constitutional rights of the children, and ordered the creation of an intergenerational pact for the preservation of the Amazon. Lord Carnwath pointed out that this case, relying on constitutional environmental protections, set a powerful precedent for how law can be used as a tool to secure environmental justice.
Scope 3 emissions
In addition to the Colombian case, Lord Carnwath discussed several significant cases, including Finch Weald Action Group v Surrey County Council and Held v State of Montana. These cases illustrate how environmental considerations, particularly concerning fossil fuel projects, are being legally challenged. In the Finch case, the UK Supreme Court ruled that oil developments must consider “scope 3 emissions,” which include the emissions caused by the end users of the fossil fuels. This ruling has had global implications, including in the North Sea oil fields and Scottish courts, where projects were halted for similar environmental concerns.
The Held v State of Montana case was also pivotal, as it involved young residents of Montana challenging the state’s failure to consider the climate impact of fossil fuel projects under its constitutional right to a clean and healthful environment. The Montana Supreme Court ruled in favour of the plaintiffs, reinforcing that climate change is a global issue that requires accountability from all levels of government.
Lord Carnwath, through his lecture aimed to underscore the critical role of judges in ensuring that environmental protections are not just theoretical but actionable. “The challenge is to translate scientific understanding into legal and political action, and this is where the judiciary plays an essential part,” he stated.
Lord Carnwath focused on cases from the past year that underscore the evolving role of judges in safeguarding the environment. For example, he referenced Smith v Fonterra Co-operative Group (New Zealand, February 2024), where a Māori elder sought legal action against companies emitting greenhouse gases. The New Zealand Supreme Court ruled that the case should proceed, allowing plaintiffs to argue public nuisance, negligence, and a novel duty of care regarding climate change. This ruling signals the courts’ willingness to adapt the common law to meet contemporary environmental challenges.
Another notable case was Milieudefensie v Royal Dutch Shell (Hague Court of Appeal, November 2024), where environmental groups challenged Shell’s contribution to climate change, arguing that the company had a legal responsibility to reduce its carbon emissions. While the Court of Appeal upheld Shell’s obligation to limit emissions, it limited specific targets. Nevertheless, the case set an important precedent for holding corporations accountable for their environmental impact.
Lord Carnwath also discussed the Held v State of Montana (Montana Supreme Court, December 2024), where the Montana court ruled that the state’s environmental protection obligations were violated by failing to account for greenhouse gas emissions in energy-related projects. The case demonstrated how constitutional environmental protections can compel governments to integrate climate change considerations into policy-making.
Looking beyond the courtroom, Lord Carnwath addressed China’s approach to climate change, particularly in light of its substantial emissions. Despite the challenges of balancing rapid industrial growth with environmental protection, Lord Carnwath noted China’s positive shift in embracing climate action.
He shared his experience at a judicial conference in Beijing, where Chinese environmental judges were trained in climate change litigation. This development was particularly noteworthy, given the nation’s significant role in global greenhouse gas emissions.
While acknowledging the political and environmental tensions in the United States, where climate policies fluctuate with leadership changes, Lord Carnwath emphasized the importance of judicial involvement in pushing for consistent, long-term climate action.
Lord Carnwath reiterated the crucial role of the judiciary in bridging the gap between scientific consensus and political will. He encouraged the legal community to continue adapting common law principles to meet the challenges of climate change, asserting that “the courts have a central role in this process.” He ended his lecture with a quote from ExxonMobil’s 2024 report, which stressed the need for “unprecedented innovation and collaboration at an immense scale” to achieve global climate goals.
Though Lord Carnwath acknowledged the ongoing litigation related to ExxonMobil’s oil activities in Guyana, he refrained from commenting on the local cases.
