The Campaign for Youth Climate Justice Reaches Japan
By Joe Fox*
Introduction
Across the world, young people are taking to the courtroom to seek climate justice. Youth-led lawsuits have now been brought in Europe, the United States, Canada, Korea, and Australia (just to name a few). It is a growing trend, which reflects that the adverse effects of climate change are already infringing upon our basic human rights, but current government action continues to be insufficient to respond to the crisis. This phenomenon has now reached Japan. In a first for the country, a lawsuit led by 16 young people has sought an injunction against 10 major corporate emitters to reduce their emissions to at least the levels indicated by the Intergovernmental Panel on Climate Change (IPCC). This blog post summarises key aspects of the Complaint, and its possible implications for climate justice moving forward.
The Youth Climate Case Japan
On 6 August 2024, 16 young people from across Japan filed a Complaint in the Nagoya District Court against 10 major thermal power companies.
The plaintiffs argue that the respondent-companies’ CO2 emissions have contributed to the impacts of climate change and thus infringed upon their rights and interests as protected under the Constitution. Specifically, the right to life (Article 13), the ‘right to maintain minimum standards of wholesome and cultured living’ (Article 25), and the right to property (Article 29).
The Complaint seeks to establish the respondents’ tortious liability with respect to these infringements under Japan’s Civil Code. Specifically, they claim that the respondents have violated Article 709, which provides that a ‘person that has intentionally or negligently infringed the rights or legally protected interests of another person is liable to compensate for damage resulting in consequence.’ Article 719 extends tortious liability to scenarios where more than one person has inflicted the damage concerned.
While the respondents have proposed 2030 emissions-reduction targets, the plaintiffs allege that many of these are unverifiable and inadequate in light of the remaining carbon budget stipulated by the IPCC in its Sixth Assessment Report. Japan is the 16th highest emitting country in the world, and power generation is its largest emitting sector. In 2019, the respondent-companies alone were responsible for 337 million tons of CO2 emissions – the equivalent of 33% of Japan’s energy-derived CO2 emissions.[1]
The Complaint seeks an injunction to require the respondent-companies to reduce their CO2 emissions by 48% by 2030 and 65% by 2035 when compared to 2019 levels. These percentages were chosen based on the IPCC’s pathway for achieving the 1.5°C goal set down in the Paris Agreement, which the plaintiffs argue is reflective of the duty of care that the respondents have failed to exercise. Relevantly, Japan is committed to achieving a decarbonized society by 2050, and has adopted several laws to promote ‘measures to cope with global warming’.[2]
The Complaint outlines the various effects of rising temperatures in Japan and across the globe. This includes an increase in the frequency and intensity of extreme weather events, such as floods and heatwaves, and their resulting impacts on properties, primary industries, and human lives. In 2018 Japan was rated as the world’s most climate-disaster-affected country, and ranked fourth in 2019.[3] Other slow-onset impacts include sea-level rise and the loss of ecosystems. The Complaint highlights the particular vulnerabilities of young people and future generations to effects of climate change. A person born in 2020 will live their entire life in a world where the average global temperature is more than 1°C higher than that of a person born in 1950.[4] The plaintiffs, all aged in their teens and twenties, detail their personal experiences of many of these impacts - including heatstroke, flooding and wildfires, and the resulting anxiety and mental distress that this has caused with respect to their futures. For instance, the Complaint details various instances where heatwaves have impacted the plaintiffs’ schooling, and cites several studies showcasing how the perceived future impacts of climate change are impacting young peoples’ decisions to have children. In other words, the Complaint demonstrates in unequivocal terms that ‘the extent of the damage suffered by the youth generation is now left to the results of choices made by those who can choose counter-measures’.[5] The Complaint seeks to prevent these violations, not only in respect of the plaintiffs but also future generations and people living in areas particularly vulnerable to the adverse impacts of climate change such as developing nations in Africa, South America, and Asia.
In this regard, the Complaint raises an interesting argument that the principles espoused in the Basic Environmental Law – namely, the duty of citizens to preserve and protect the environment – are being inhibited by the respondents’ failure to take adequate climate measures.[6] As this duty lies ‘at the core of their individual personalities’, the plaintiffs feel a sense of responsibility over the impacts of climate change, and thus experience emotional distress as a result of its currently unmitigated trajectory.[7] The Complaint makes a similar argument in respect of the plaintiffs’ right to self-determination, which they claim has been violated by the physical impacts and emotional distress caused by climate impacts like heatwaves.
The Complaint also references the UN Guiding Principles on Business and Human Rights and argues that the respondent-companies are obliged to avoid violations of human rights enshrined in international law, including by undertaking appropriate due diligence measures. Several international policy instruments, including the OECD Action Guidelines and UN Global Compact, similarly call upon corporate actors to develop and implement measurable objectives and strategies to address the negative environmental impacts of their activities.
Where to next?
As pointed out by the Sabin Center, the case is a significant next step in a country that has historically not been litigious, particularly with respect to social movements. The Complaint is noted to have been inspired by the 2019 Urgenda decision, in which the District Court of the Hague ruled that the Dutch Government had to cut its greenhouse gas emissions by at least 25% compared to 1990 levels by the end of 2020. It also follows from two previous climate-related lawsuits in Japan, which considered requests for injunctions to prevent the construction and/or approval of coal-fired plants on the basis of its contributions to climate change and resulting impacts on personal rights. These cases were ultimately unsuccessful in establishing a direct violation of these rights or a causal relationship between the specific emissions concerned and the global impacts of climate change. While these decisions are both currently under appeal, they reveal the challenges the Complaint is likely to face in establishing a direct legal relationship between the plaintiffs and the respondents, and a causal link between the respondents’ emissions and the impacts of climate change.
Several of the respondent-companies have now filed their answer to the Complaint, primarily objecting to the justiciability of a claim for future damages which they claim have yet to be incurred.[8] They also highlight alleged fluctuations in carbon emissions based on factors like changes in energy usage, government policies and science and technology to dispute the finding of future liability. In other words, even if tortious liability were already present, that does not mean it would necessarily continue into the future. Article 135 of Japan’s Civil Code requires that ‘an action seeking future performance may be filed only if it is necessary to claim this in advance.’ In this regard, the respondents appear to argue that procedural fairness requirements for such a claim have not been met - namely that the legal relations which form the basis of tortious claim are expected to continue and that it would not be unreasonable to impose a burden for potential future costs. In circumstances where the conduct concerned (i.e. carbon emissions) is not illegal in itself, liability for future costs should not be imposed it is argued.
It will be interesting to see how this compares to the District Court of the Hague’s finding in Milieudefensie et al. v. Royal Dutch Shell plc that the relevant duty of care requires consideration of both current and future generations, and the intergenerational scale of those affected is a relevant factor in assessing the proportionality of companies’ obligation to reduce their emissions. The points may speak to a broader challenge that has emerged for courts post-Urgenda. Specifically, whether general mitigation obligations should be interpreted to impose specific emission-reduction targets or to require other more-procedural measures, such as the development of long-term mitigation strategies. For example, Benoit Mayer has highlighted that several climate cases can be interrogated for its choice of certain emissions targets over others.[9] As noted above, the plaintiffs in this case have relied on the IPCC’s finding when formulating their requested emissions-reduction targets. However, it is important to keep in mind that the IPCC is not policy-prescriptive and this pathway is ultimately a projection made with 50% confidence and allowing contingencies for future negative emissions. It may be that more ambitious and rapid actions become necessary as we wade further into the climate crisis. Importantly, the Complaint notes that a 48% reduction by 2030 and 65% reduction by 2035 should be viewed as reflecting a ‘minimum legal obligation’. It is this future uncertainty that the respondent-companies appear to be seizing upon to limit their exposure to present liability.
Care must also be taken to ensure that corporate actors are not simply able to shift their emissions overseas when faced with an unfavourable judicial decision.[10]
These factors speak to the need for litigants to carefully consider their strategies for climate-justice, particularly in respect of the remedies they seek. For instance, the Complaint references the interests of areas of the world outside Japan that are particularly vulnerable to the impacts of climate change. However, a similar argument was not allowed in Milieudefensie, where the Court limited its consideration to Dutch residents and inhabitants of a particularly vulnerable region in the Netherlands.
Noting these challenges, it is difficult to forecast how the Youth Climate Japan Case will go. However, it is yet another reminder of the urgency of the climate crisis, and the need for inter-generational equity to inform our response to it. It also demonstrates why the requested ICJ Advisory Opinion is so important. Clarity is needed over States' obligations in respect of climate change, particularly as it relates to the level of due diligence, which they, and the private entities under their jurisdiction, must exercise.
*Joe Fox is a member of WYCJ’s Legal Advocacy Taskforce. He has completed a Masters of Law at the London School of Economics & Political Science, specialising in Human Rights Law. His interest lies in the integration of international environmental law principles in human rights approaches to climate change.
[Note: this blog post is based on an unofficial translation of the Complaint undertaken by the author]
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[1] See pages 17, 199 and 226 of the Complaint.
[2] The Law Concerning the Promotion of the Measures to Cope with Global Warming (Law No. 117 of 1998), The Act on Promotion of Global Warming Countermeasures (Act No. 117 of 1998), and The Act on the Promotion of Global Warming Countermeasures (Act No. 136 of 1972).
[3] See page 36 of the Complaint.
[4] See Figure SPM.1: IPCC, 2023: Climate Change 2023: Synthesis Report. Contribution of Working Groups I, II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, H. Lee and J. Romero (eds.)]. IPCC, Geneva, Switzerland, pp. 35-115, doi: 10.59327/IPCC/AR6-9789291691647.
[5] See page 107 of the Complaint.
[6] Article 9 of the Basic Environmental Law.
[7] See pages 120-123 of the Complaint.
[8] Please note that this was based on an unofficial translation of the Respondent’s filings.
[9] Benoit Mayer, ‘Prompting Climate Change Mitigation through Litigation’ (2022) International & Comparative Quarterly 1-18; Benoit Mayer, ‘The Duty of Care of Fossil-Fuel Producers for Climate Change Mitigation: Milieudefensie v. Royal Dutch Shell District Court of The Hague (The Netherlands) (2022) Transnational Environmental Law 407-418.
[10] Benoit Mayer, ‘The Contribution of Urgenda to the Mitigation of Climate Change’ (2023) 2 Journal of Environmental Law 167-184.