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European Climate Litigation: A Tale of Two Courts

By Jacques Hartmann

As Savaresi and Setzer recently reported on this blog, rights-based climate litigation in Europe is burgeoning. At the domestic level, there have been setbacks, but also notable successes, following the ground-breaking victories in cases like Urgenda and Neubauer – as Maxwell, Mead and van Berkel explain, also on this blog. At the regional level, climate cases before the Court of Justice of the European Union (CJEU) have so far stalled, but four more cases are currently pending before the European Court of Human Rights (ECtHR). Marc Willers QC and I analysed these cases in a joint article published in a new special issue of the Journal of Human Rights and the Environment. This blog post summarises our findings on the scope to use Europe’s regional courts for climate litigation.  

Setbacks before the Court of Justice of the European Union (CJEU)

The first two climate lawsuits ever filed before the CJEU were the so-called People’s Climate Caseand the EU Biomass Case. Both were brought directly against the European Union (EU). The applicants challenged a series of EU legislative acts, arguing that they breached both the EU’s founding treaties and the applicants’ human rights under the EU Charter of Fundamental Rights.

Specifically, the People’s Climate case challenged legislation adopted to enable the EU to meet its 2030 greenhouse gas emissions reduction target – namely, Directive 2018/410, and Regulations  2018/841 and 2018/842.

The EU Biomass case challenged Directive 2018/2001 and Regulation 2018/841, which enable to treat the burning of ‘forest biomass’ – such trees, branches and bark –as a source of renewable energy. Both cases were rejected at the admissibility stage, as the applicants failed to satisfy the CJEU’s stringent standing requirements. In both instances, the CJEU followed its well-established ‘Plaumann doctrine’, which makes it nearly impossible for individuals or environmental interest organisations to initiate cases before the CJEU.

Since these decisions, rules on standing before the CJEU have been reformed. The EU’s Aarhus Regulation was amended to make it easier to request an ‘internal review’ – a procedure that allows some non-governmental organisations to request the European Commission to consider whether an administrative act it has adopted is contrary to EU environmental law. The applicants in the EU Biomass case recently requested such review concerning the decision to include forest biomass under the EU’s Taxonomy Regulation, which established a framework to identify ‘sustainable investment’. Should the Commission decline the request for a review, the applicants intend to bring a new case before the CJEU. ClientEarth has requested a similar review. We are therefore yet to hear the last word about rights-based climate litigation before the CJEU.

Cases pending before the European Court of Human Rights (ECtHR)

The tale before the ECtHR, instead, has only just begun. So far, four climate cases have been filed and are presently pending.

The first – Duarte Agostinho was brought by a group of Portuguese children and young people against Portugal and another 32 states. Unusually, the applicants brought their complaint directly to the ECtHR, without first initiating a lawsuit before domestic courts. The applicants claim that the respondent states have breached their rights under the European Convention of Human Rights (ECHR) – specifically, the right to life (Article 2), right to privacy (Article 8), and the right to not to be discriminated (Article 14) – by failing to urgently cut their greenhouse gas emissions and to prevent the impacts of climate change.

The second case – Verein Klimaseniorinnenwas brought against Switzerland, by an association of women over the age of 64. The applicants complain that Switzerland’s climate policies are exposing them to life-threatening heatwaves, amounting to a violation of the right to life and the right to private and family life. They further claim a violation of the right to a fair trial (Article 6) and the right to an effective remedy (Article 13), after the Swiss courts dismissed their case.

The third case – Mex Mwas brought by an individual applicant against Austria. The applicant suffers from Uhthoff’s syndrome, which affects many persons with multiple sclerosis when temperatures rise. He claims that Austria has failed to take reasonable and appropriate measures to protect his right to life and right to private and family life. He further claims a violation of the right to an effective remedy, after the Austrian courts dismissed his case.

The last case Greenpeace Nordic and Young Friends of the Earth was filed by two NGOs and six individuals against Norway. The applicants claim that the Norwegian government’s new licenses for oil and gas exploration in the Arctic violate their right to life and the right to private and family life. They further claim a violation of the right to an effective remedy, after the Norwegian courts dismissed their case. This case has had much visibility, due to the Norwegian courts’ strict interpretation of the constitution’s provisions on the protection of the environment.

Although these four cases differ in significant ways, the applicants all argue that the respondent states have failed to comply with their obligations under the ECHR, read in light of obligations enshrined in the 2015 Paris Agreement. In the first three cases the applicants invoke states’ positive obligations to take preventive measures against human rights violations. In the Norwegian case, instead, the applicants also argue that, by granting new licenses for oil and gas exploration, the government has breached its negative obligation to refrain from causing harm.

Given the setbacks before the CJEU, cases brought before the ECtHR are of special importance. As all cases remain pending, little can be said about their outcomes. It is however worth recalling that more than 95 per cent of applications to the ECtHR are rejected at the admissibility stage. Let us now consider the main hurdles facing the applicants in greater detail.

Hurdles Facing the Four Pending Cases

Applicants before the ECtHR must satisfy certain admissibility criteria. The ECtHR makes a preliminary assessment of whether the applicants meet these. If it is prima facie satisfied that they do, it communicates the case to the respondent states, which are asked for their observations, including on matters of admissibility. The ECtHR then considers these observations and can, on this basis, decide to declare an application inadmissible. So far, only Mex M has not been communicated to the respondent states.

The respondent states are likely to raise admissibility questions in all four cases.

In Duarte Agostinho, the respondent states are likely to challenge the non-exhaustion of domestic remedies. It is worth recalling that in 2021 the United Nations (UN) Committee on the Rights of the Child (CRC) rejected a youth compliant over climate change Sacchi v. Argentina as inadmissible, exactly because the applicants had not exhausted domestic remedies. Even so, the CRC noted that the applicants had ‘sufficiently justified, for the purposes of establishing jurisdiction, that the impairment of their… rights as a result of the state party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable.’ The CRC also added that the applicants had ‘prima facie established that they have personally experienced a real and significant harm in order to justify their victim status.’ (paras 10.13-10.14 in the decision concerning Argentina, one of 5 almost identical decisions). 

The ECtHR will have to consider similar issues, as the respondent states are likely to argue that the applicant(s) do not satisfy the victim requirement, as they have not suffered a ‘suffered a significant disadvantage’.

Intriguingly, in its communication of Duarte Agostinho, the ECtHR asked the respondent states to comment on the alleged violations of the rights invoked, and of rights that were not mentioned by the applicants –namely: the prohibition of inhuman and degrading treatment (Article 3) and the protection of property (Article 1 of Protocol 1). Additionally, the ECtHR asked the respondent states to comment on other questions, including jurisdiction, state responsibility, victim status and the state’s so-called ‘margin of appreciation’. Similar questions were raised in Verein Klimaseniorinnenand Greenpeace Nordic and Young Friends of the Earth.

Future Outlook

Unlike the CJEU, the ECtHR cannot annul legislation. Its powers are limited to finding a violation of the ECHR and awarding just satisfaction, which is intended to compensate applicants for pecuniary or non-pecuniary damage, as well as for legal costs and expenses. Even so, the respondent states are bound by the judgments of the ECtHR and are required to ensure that ongoing violations of the ECHR are ended, and that no such violations occur in future. Over the decades, the ECtHR has developed a rich and influential practice on environmental matters, as demonstrated by the third edition of its Manual on Human Rights and the Environment.

The ECtHR’s history with environmental cases seems to suggest that, even if all four applications presently before the ECtHR fail, others are likely to be filed. At the same time, new rules recently adopted by the EU may make it easier for climate applicants to go before the CJEU. Therefore, both the CJEU and the ECtHR are likely to continue to be asked questions about the protection of human rights in the climate emergency. The tale of rights-based climate change litigation in Europe has only just begun.

Astrid Milena Bernal

By Astrid Milena Bernal

Astrid Milena Bernal Rubio is a Colombian LL.M student at Pennsylvania State University (concentrations in International Law and Energy and Environmental Law). She is a lawyer from the Universidad Católica de Colombia, Magister in Environmental Law from the Complutense University of Madrid and Specialist in human rights and critical legal studies from the Latin American Council of Social Sciences (CLACSO) Latin American School of Public Policy- ELAP.

As part of the technical team of GFLAC (climate finance group for Latin America and the Caribbean), she supported the creation of the MRV system (monitoring, reporting and verification) for climate finance in Colombia. In addition, she has been a consultant for the WRI (World Resources Institute) and The Access Initiative (TAI), working as the National researcher for the Environmental Democracy Index (EDI). Also, she has worked as a consultant for AVINA Foundation, The Bogotá’s drainage and sewerage company (EAAB). She has worked as a lawyer and researcher on issues associated with public participation, access to information, forests, carbon markets, rights of indigenous peoples and rural communities in Colombia.

Astrid was a volunteer for the Network for Environmental Justice in Colombia and promoted the creation and growth of the climate justice division at the Environment and Society Association (AAS) of Colombia. She worked as the Climate Justice division coordinator for five years. Astrid was a senior research coordinator in a joint research project with UNICEF to contribute to the fulfilment of the SDGs (6), focusing its work on guaranteeing the rights of access to sanitation for rural, indigenous and Afro-descendant populations in Colombia. She is also part of the founders of the Colombian NGO- CAMBIUM (Climate, Environment and Research-Action Uniting Worlds). This organization aims to, directly and indirectly, influence processes carried out by civil society and decision-makers related to climate change.

Currently, she works at the Global Forest Coalition as an associate for the Unsustainable Livestock Campaign. Astrid also supports the work of Pivot Point and the CLARA group (Climate, Land, Ambition and Rights Alliance), promoting the understanding and participation of CSOs to ensure higher ambition of NDC (Nationally Determined Contributions) in Spanish speakers countries.

Astrid is a research assistant at Penn State University identifying how different kinds of transboundary river basin organizations have written and used dispute resolution mechanisms in both the bilateral agreements between the US, Mexico and Canada (NAFTA-USMCA) and the Autonomous Binational Authority of the Basin of Lake Titicaca (Bolivia, Peru).

Astrid is member of the core team in the Global Network for Human Rights and the Environment (GNHRE), she is part of the global network of environmental lawyers (ELAW) and collaborates as a volunteer for The Capital Area Immigrants’ Rights Coalition- CAIR coalition.