by Justine Bendel, Marie Curie Fellow, University of Copenhagen
With the latest amendment of the EU LULUCF Regulation in April 2023, which consolidates EU Member States’ obligation to achieve a binding target for greenhouse gas (GHG) removals by 2030, litigation is bound to increase over time. This post aims to contextualise the recent wave of litigation in light of the LULUCF Regulation, and to identity possible future trends in litigation and its specificities in relation to other climate cases.
The role of forests in the climate regime
Forests, and more generally Land Use, Land Use Changes and Forestry (‘LULUCF’) are an important feature of national policies towards GHG emissions reductions, as they can be both sinks and sources of GHG emissions. When large-scale deforestation takes place, for instance due to intensive agricultural practices, GHG emissions increase – but when forests are sustainably managed and conserved, they can sequester GHG. In Finland for instance, forests are no longer guaranteed carbon sinks, partly because of a slower growth of trees and excessive logging.
However, forests have been difficult to regulate in the climate regime, as they engage many different political issues, including agricultural development, competing tenure rights, conservation, and climate targets. It is also harder to obtain reliable data that can account for anthropogenic and natural impacts on forests (Krug, 2018). Nonetheless, forests have always been present in the climate discussions: their importance for climate mitigation has never been ignored, as Article 4(1)(d) of the UN Framework Convention on Climate Change attests.
Since 1992, the climate regime has developed an approach to forests that accounts for their role as sinks, first through the Kyoto Protocol. Under the Kyoto Protocol, the question was whether GHG emissions and removals from the LULUCF sector could be accounted for in national inventories (Savaresi & Perugini, 2021). The system developed under the Kyoto Protocol was that only developed countries could use forest management to calculate their emissions reduction targets. To decide whether activities have led to carbon sequestration or not, a forest ‘reference level’ was to be created for each state, against which calculations could be made to see whether the sequestration capacities of the forests have increased or not. If they have, states can use the increase as credits, and if not, they will have debits (Decision 2/CMP.6, Decision 2/CMP.7).
The Kyoto Protocol was used as a first attempt, on which the EU has elaborated and strengthened its approach to accounting of LULUCF activities. In the current iteration of the EU LULUCF Regulation, which was revised in 2023 to set climate goals for 2030, EU Member States have to adopt binding net removal targets, of a total of 310 million tonnes of CO2 equivalent (Article 4(2)). This is an important development as it sets a hard target which each individual Member State must adhere to, and gives teeth to potential lawsuits. The EU Regulation also installs a ‘no-debit’ rule, whereby Member States must maintain the net carbon sinks associated with the existing land uses, so that at least the GHG emissions from the land sector do not exceed those it sequesters. This is all the more important as many forests located in Europe could shift from carbon sinks to carbon sources.
Litigation of the LULUCF sector
Since its last amendment of 19 April 2023 (making the target binding), its implementation has yet to face judicial procedure. However, since the adoption of the Regulation in 2018, four cases have been filed so far against Finland, Germany, Sweden, and the EU Parliament and the Council, questioning governments’ LULUCF emissions and reductions targets – with a decision from only the Finnish and EU Parliament cases. In all four cases, the plaintiffs rely on the EU LULUCF Regulation to some extent, to challenge the national climate policies. This in itself shows that forests are becoming a central part of litigation strategies to hold governments accountable.
For instance, in the Aurora case, the plaintiffs specifically argue that Sweden has a “responsibility to preserve and restore natural ecosystems … with the aim of reducing anthropogenic climate impacts [as] underlined by the EU LULUCF Regulation” (para. 306, translation from Swedish through Google Translate). In the Deutsche Umwelthilfe v. Germany (LULUCF) case, the plaintiffs emphasise Germany’s obligations under the EU LULUCF Regulation to challenge Germany’s plan for net reduction targets in the land sector (section IV, pp. 12-14). In the Finnish Association for Nature Conservation and Greenpeace v. Finland case, the appeal court only mentions that the state is under obligations from the EU LULUCF Regulation to “maintain the calculated greenhouse gas removals of the land use sectors at or above its calculated emissions for the period 2021-2030” (p. 27, translation from Finnish through Google Translate). As the court rejected the appeal altogether, it did not engage with whether the current plans are in line with this obligation. A more direct action against the LULUCF Regulation was made in the Carvalho case, as the plaintiffs asked for nullification of the legal text altogether, because the ‘no-debit’ rule established in the Regulation is not ambitious enough (Application, paras. 113 and 355). Unfortunately, the court dismissed the case on procedural grounds, without examining the merits of the case.
What we can expect in the future
Looking beyond those four cases, and seeing them as a basis for what can be achieved going forward, there are a few elements for hope for more successful litigation. Roadblocks such as lack of hard-hitting targets and vague obligations, evasive scientific knowledge and inadequate human rights frameworks can be overcome.
Firstly, as the targets are set for 2025 and then 2030, litigation after those deadlines may be even more straightforward as there will be the element of looking back on whether the stated targets have been achieved . Until then, courts may already have a more straightforward role to play than in other types of climate-related litigation, as the targets are binding and clear, not only aspirational. The need for what some argue is judicial activism may be reduced in cases involving the EU LULUCF regulation. Essentially, it will become easier for courts to engage with national climate plans, since they have an enforceable target against which to be measured. Indeed, the question of the feasibility of specific national action plans against the EU targets will be easier, as litigation under the EU LULUCF Regulation has a narrower scope than other ‘hit-the-target’ climate litigation, which tends to engage national GHG reductions plans as a whole, such as the Urgenda case (Bouwer and Setzer, 2020).
Reliability of scientific data on the evolution of forests’ GHG removals and emissions will play a key role in future EU LULUCF litigation. The scientific heavy lifting was done during the elaboration of the forest reference levels, a key element of the EU LULUCF Regulation. This is because each Member State had to prepare a National Forestry Accounting Plan, which was then reviewed by the European Commission, before being agreed bilaterally (Böhling &Todeschini, 2021). This process resulted in each Member State’s forest reference level, a number that can be challenged in court, should a government not comply with it. As the calculations of whether the forest reference level is respected or not are difficult, gathering the data will be key.
The reliance on human rights language and human rights law by litigants is likely to continue in future litigation. The three cases against Sweden, Germany, and Finland also all use human rights as a tool for further enforcement of the Member States’ commitments towards the LULUCF sector. This also shows the inextricable links between the climate plans for forests and the rights of affected citizens. The prominence of human rights in LULUCF litigation is evidence of the so-called ‘rights turn’ in climate litigation (Peels & Osofsky, 2018), which has proven somewhat successful so far, and which will continue to affect climate litigation, including litigation on forests.
General pushback of the LULUCF Regulation
On the other side of the debate, Poland has recently opposed the legally binding targets of the EU LULUCF Regulation, and asked the Court to “annul, in its entirety” the regulation. This contestation somewhat confirms the fact that this regulation has more teeth than ever before, and has created some fear in the Polish government of its attainability. This lies in stark contrast from the position of the applicants in the Carvalho case, who precisely argued the contrary, i.e., that the Regulation was not ambitious enough to reach the overall climate targets.
The reason for general political pushback is thanks to the variety of activities that take place under the LULUCF, and because of the rather obvious fact that land is finite and its uses not being necessarily compatible with each other. Politically sensitive, the land use and forestry sector has always been more difficult to regulate from a climate perspective, but as more action is required to comply with the Paris Agreement, the land use and forestry sector has now become a central part of nations’ GHG reduction plans (Savaresi, Perugini & Chiriacò, 2020).
Forests and the LULUCF sector in general are under increasing pressure to participate more actively in achieving GHG reduction targets. The adoption of the new binding EU target concerning the LULUCF sector is likely to result in more cases being litigated. While courts will have a stronger legal framework at the European level to implement, success of litigation as a tool for ensuring States respect their forest reference level under the EU LULUCF Regulation will depend heavily on the availability of reliable scientific data. Moreover, the use of human rights by litigants will likely continue to feature prominently in LULUCF litigation. At the same time, a wave of LULUCF litigation may be motivated by the inaction of States who feel the EU LULUCF Regulation’s targets are too ambitious and, therefore, practically unattainable. This is now an exciting time to see how such litigation will evolve.