Greenpeace lawyers Michelle Jonker-Argueta and Richard Harvey at an Oslo court hearing in 2017. Photo by Edward Beskow / Greenpeace.
The crises of climate change and threats to biodiversity require many stakeholders to take action. As part of this intensifying effort to save the planet, environmental advocates, activists and communities have found themselves at the forefront of a groundbreaking area of law. Given the historic mission of Greenpeace, it’s no surprise the organization’s lawyers are playing an important role across a range of litigation and advocacy efforts.
Greenpeace was founded in 1971, when a group of concerned citizens came together to stand up for change in our global and local environmental practices. As the movement grew, so did its organizational needs and a legal unit was formed at Greenpeace International over 15 years ago. This legal unit works with communities, governments, non-profits and private businesses toward lasting solutions built into the legal framework of various jurisdictions, while maintaining independence. The work continues with boots on the ground and ships in the sea, but is now fortified in the courtrooms and legislatures.
All with the singular goal of enabling this great Mother Earth to nurture life in all its diversity – humans included.
Fifty years since its inception, Greenpeace International now boasts a highly effective legal team, made-up of intelligent, thoughtful, passionate and driven individuals who are dedicated to making real and lasting change.
The focus of the Greenpeace International Legal Unit ranges from risk management and strategic defense of campaigns, to committed advocacy for environmental and human rights. The members of the legal team – including Kristin Casper, General Counsel and a member of the Lawdragon 500 Leading Environmental & Energy Lawyers – work in concert with one another, and with independent lawyers around the globe, in developing smart legal strategies to seismically advance the fight against climate change and other environmental degradations.
Daniel Simons, senior legal counsel for strategic defense at Greenpeace International, speculates that when the legal team was assembled they uncovered “a whole untapped potential that the organization had of using the law to actually advance the campaigns proactively.” Prior to the assembly of the legal team, Greenpeace International had historically only sought legal counsel in the wake of issues that arose from a given case. The practice has since shifted from one focused simply on dealing with the fallout from campaigns to instead reinforcing those campaigns through preemptive legal action. This progression from being reactive and responsive to proactive and calculative is a key part of the evolution of the organization as a whole.
The legal team is quick to point out that everything they do, they also do for the people. Yes, they focus on the environment and proactively fight for the rights of endangered species, the health of rivers, the protection of ancient forests and the like. Simultaneously, the multi-faceted organization is fully dedicated to human rights. They make it clear that the two are intertwined, and remain focused on how all of these hard fought battles actually impact human beings. The team embraces the power of the law to demand accountability and focus on lasting, systemic change, for the Earth and all her inhabitants.
Greenpeace International’s senior legal counsel for strategic litigation, Michelle Jonker-Argueta, spoke about the team embracing the “movement lawyering” approach. Jonker-Argueta is dressed smartly, even over Zoom, and has the type of cool and capable air that make you relax in her presence – she’s got this, we instinctively think, “this” being literally whatever she sets her sights on. She dips out of the call for a moment to handle child drop-off logistics, then comes back to discuss their community-based legal strategies and international collaborations.
So what exactly is “movement lawyering?” In response to our question, Jonker-Argueta quips: “It’s a way of life.” Ha! She goes on to describe it as “increasingly focused strategic litigation, co-created with affected communities at the center.” Greenpeace International believes in working with an ear to the ground, listening to the communities to understand their needs. From there, Jonker-Argueta adds, the team can “build litigation with the communities, addressing through these litigation strategies the inequalities and power imbalances that are at the core of those struggles.” The team then aims to help the people that have been affected by the power imbalance.
The group deliberately works with local Greenpeace organizations which are connected with affected communities and aims to co-power them in bringing these cases. Local people, who previously felt powerless against giant corporate interests and environmental degradation, are taking the stand and giving testimony. Greenpeace organizations support the efforts to come together and make real change. “It’s about building community power,” as Jonker-Argueta puts it, and “building cases up around the demands of the communities.”
One such community-led case is The People v. Arctic Oil, a landmark climate-change case in protest of new oil drilling in the Arctic, which was heard through all levels of the domestic courts in Norway. The case concerned ten new drilling licenses given to thirteen oil companies for oil exploration in the Barents Sea. It was brought against the Norwegian state by a collective of groups including Nurturing Youth, Greenpeace Nordic, with The Grandparents Climate Campaign and Friends of the Earth Norway as intervenors. The groups were outraged that the Norwegian state was planning to further expand its extraction and production of fossil fuels, despite the evidence that already more fossil fuels have been uncovered than we can afford to burn if we're going to meet targets outlined in the Paris Agreement.
In December 2020, the Norwegian Supreme Court ruled for the state, but also provided some crucial wins for the plaintiff side. Perhaps most significant was the message that the industry, effectively, is allowed to look but they are not permitted to touch: According to the court, exploration is fine, but fossil-fuel extraction is another story.
It’s a fascinating case for many reasons, but of notable importance is the fact that 95 percent of the expected emissions from this Norwegian project will be happening abroad. In the majority opinion as well as the dissent, the court found that the climate impacts of this expanded oil drilling in the Arctic need to be taken into account in the environmental impact assessment – and this ruling includes those "exported" emissions. Although the majority opinion pushed this assessment to a later stage, the impact of this “small” win is actually rather enormous.
When word about this lawsuit started to get around, Jonker-Argueta said that the people in Norway laughed at Greenpeace Nordic. This is not unfamiliar territory to the folks who have worked with the organization for any length of time. In this case, the general consensus was: “you guys are crazy. Why are you doing this? This is insane.” In truth, even the legal scholars were not taking them seriously.
Enter: the old stalwart of Greenpeace’s activism – highly visible protests. The Greenpeace ship, Arctic Sunrise, took to the Arctic Barents Sea with some notable names, including actress Lucy Lawless, with banners stating “People vs. Arctic Oil,” stationing themselves in view of the Statoil (since rebranded to Equinor) Songa Enabler oil rig. The media reacted, and more people-led activism ensued, including a protest in front of the Norwegian Embassy in Berlin with a 20-foot high polar bear and prominent signs imploring the government to “Stop Arctic Drilling.” The world was paying attention. By the time the Greenpeace legal team arrived at the first date of the hearing in Oslo, the district court was overrun, utterly packed with people. It was so full, in fact, that there was nowhere to sit. The judge decided to allow people to stand to observe the proceedings.
Jonker-Argueta is “a firm believer that had it not been for the actions, the people, the communications, and the engagement teams using the lawsuit as a platform, [they] would have had an empty courtroom.” Instead, that courtroom was brimming and the judge could not deny the fact that the world was watching. People were invested and the stakes were high. Says Jonker-Argueta, “this is life and death. These are their rights, their children's rights. This is the future of their planet.”
Following the decision of the Norwegian Supreme Court, the case has now been filed before the European Court of Human Rights by Greenpeace Nordic, Nature and Youth together with six individual youth applicants.
Another prominent protestor from the Arctic oil case was Joanna Sustento, an environmental activist and survivor of the 2013 Typhoon Haiyan in the Philippines. Sustento lost many family members in that devastating typhoon, one of the most powerful tropical cyclones ever recorded, which killed thousands of people. "That’s why I, along with other communities around the world, want to hold fossil fuel companies accountable and demand justice and positive change,” says Sustento.
In the Philippines, a group of on-the-ground, community-based organizations teamed up with Greenpeace Southeast Asia Philippines and started asking some serious questions. They wanted to know why the storms were getting stronger and who might be responsible for this. The team was moved into action by compelling new research: The ink was still drying on the Climate Accountability Institute’s peer-reviewed Carbon Majors research report on the heels of Typhoon Haiyan, and the team jumped on it.
The Carbon Majors research report found that only 90 carbon producers, including 50 investor-owned companies, were largely responsible for the climate change that is fueling these horrifying environmental disasters. Bolstered by this research, impacted communities, notable and concerned individuals, and non-profit organizations filed a petition before the Commission on Human Rights of the Philippines in 2015. The 32 petitioners, represented by Hasminah D. Paudac-Tawano and Grizelda Mayo-Anda, sought an investigation into the responsibility of the Carbon Majors – oil, coal, and gas producers such as Shell, Exxon, and Chevron – in spurring on climate change, rightly framed as a human rights violation. Despite myriad attempts by these companies to dismiss the petition, the Commission on Human Rights went forward with a national inquiry. Over the course of three years, multiple hearings and consultations were set up in the Philippines and in countries where many of the companies are headquartered, including New York, London, and The Netherlands.
Everyone from community witnesses and national and international expert witnesses in the fields of climate science, law, policy and research came in, spent time and gave testimony. In December 2019, at a side event in COP 25 in Spain, the focal Commissioner in the investigation announced the preliminary findings, stating, among others, that the Carbon Majors have an obligation to respect human rights in the climate context and may be held legally and morally responsible under relevant domestic laws.
The final report has the potential to be a massive game-changer, setting a precedent for legal recourse for any and all individuals affected by climate change against the corporations who caused it. It is the first time an investigation of this magnitude has looked directly at the link between corporate actions and the climate crisis. In response to one of the pleas of the petitioners, the Commission launched its Climate Change Observatory in September 2020, a first of its kind that also acts as a public repository of all documents related to the inquiry hearings. Before that launch, however, Greenpeace Southeast Asia Philippines already documented petitioners’ efforts and posted all the information from the inquiry online, creating an invaluable database for future legal actions by climate impacted communities.
Kristin Casper is confident that this movement will empower other communities to replicate this type of legal action in other jurisdictions. The petitioners have been able to establish that there is a relatively small group of companies that are largely responsible for the climate pollution that is feeding the environmental degradation we see today. Moreover, these liable companies have legal responsibilities to disclose the risks associated with their business models. These companies also have an obligation to take action to prevent further harm based on those risks and to mitigate and potentially compensate for the harm that's been caused by their business models.
Casper notes the seismic impact the case has already had in many respects, perhaps most paramount being the wealth of evidence that this case has provided. The information from the inquiry can be used by other national human rights institutions, as well as legal groups and ultimately courts that are looking to discern what the impacts of climate change are, and what the responsibilities of companies and of governments should be. Casper says astutely, “there is a false narrative that has been at play for far too long, that we are all equally responsible for climate change.” This case, though the proverbial jury is still technically out, has already shown that it’s the coal, oil, and gas companies that are most responsible and that it’s time to hold them accountable.
To that end, a coalition of approximately a dozen independent Greenpeace national and regional organizations came together to launch the Greenpeace Climate Justice and Liability Campaign. The campaign centers around three axioms, as outlined by Louise Fournier, legal counsel for the Climate Justice and Liability Campaign at Greenpeace International. First: People have rights. Every single one of us has the right to a safe and healthy environment. Second: States have duties. Governments have legal obligations to protect people from the impacts of climate change. And third: Businesses have responsibilities. They are responsible under law to prevent the human rights impacts that are linked to their operations, products and services.
A group of senior women in Switzerland have been suing the Swiss state since 2016 for its failure to act on climate change. The Swiss court has ruled that this particular group was not more affected by climate change than the rest of the population even though, as Fournier states, “we have very clear science that seniors, and senior women in particular, absolutely are more affected by heat waves made worse by climate change. A lot of these senior women [many of whom are over 75-years-old] cannot even go outside in the summer when it's too hot.” Regardless, this dedicated group of women have gone through the domestic proceedings with little success, frustrated that their voices were being denied.
Late last year, with the help of Greenpeace Switzerland, the group took the matter to the European Court of Human Rights (the highest regional court in Europe) and brought a complaint against the state. In March of this year, the court officially agreed to hear the complaint and gave the case priority status. Then this fall, several high-ranking members of the United Nations, including the UN High Commissioner for Human Rights Michelle Bachelet, filed third party interventions in the case, indicating the broad impact the results could have.
As far as Fournier is concerned this is “a good example of one of the main cases against governments and the legal mobilization, as well as the campaigning aspects that go into it, and how a group of organized senior women can really take back the power and the narrative and gain access to justice.” Under Swiss law, you have to show that this group of plaintiffs is more affected than your average citizen, and that the group is suffering impacts from the climate crisis, therefore suffering impacts from the conduct of the state. But Fournier clarifies “this doesn't mean that this is the only group that's being affected by climate change. The state has a duty towards everyone and its duty towards the senior Swiss woman doesn't negate its duty towards other members of the population.”
Similarly, we know that fossil fuel companies are some of the most responsible for the climate crisis that we are currently in and those companies have a responsibility to not let their products and services impact human rights.
On May 26, 2021, the District Court of The Hague in the Netherlands issued a groundbreaking judgment on the obligations of Shell under the Dutch duty of care and international human rights law. The Court ordered Royal Dutch Shell to reduce CO2 emissions across its entire value chain (Scope I, II and II) by net 45 percent by 2030 relative to 2019 levels. The Court also made significant holdings regarding the obligations of fossil fuel companies with respect to climate change, the role of international human rights law in informing corporate obligations broadly, and other issues.
This case is led by a group called Milieudefensie (Friends of the Earth Netherlands). Greenpeace Netherlands is a co-plaintiff, along with ActionAid, Both ENDS, Fossielvrij NL, Jongeren Milieu Actief, the Waddenvereniging and 17,379 individual co-plaintiffs. The Greenpeace International Legal Unit has been supporting the independent organization of Greenpeace Netherlands.
This is hugely significant, as it marks the first time a fossil fuel producer has been found liable for its contribution to climate change. The Court ordered Shell to align its business with the goals of the Paris Agreement and reduce its emissions, including the vast amount of emissions that come from the burning of its products. The Dutch Court’s decision sends the message that producers are going to be held responsible for their contribution to the climate crisis and that continuing business-as-usual is incompatible with their human rights obligations.
It’s a massive step in the right direction, and we all have the highly collaborative legal team of Greenpeace International to thank. The team points to the efforts of Kasey Valente, legal coordinator of the legal unit, who says, “Each team member has different strengths and expertise, and I find great pleasure in ensuring the team is highly collaborative and impactful.” Both passionate and precise, the legal unit has brought a sophisticated effectiveness to Greenpeace International. Their approach is deliberate and multi-pronged, focusing on lawsuits and legislation that empowers communities, forever dovetailing back to a key tenant that sometimes gets lost by other movements: Environmental rights are human rights. Full stop. After all, we’re all floating on this big blue dot together.