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Swiss climate case rejected, could proceed to Federal Supreme Court next

Zurich, Switzerland, 7 December 2018 – In conflict with overwhelming scientific evidence, the Swiss Federal Administrative Court has ruled that women over 75 years old are not more impacted by the effects of climate change than other population groups. The court rejected a case led by the group Senior Women for Climate Protection Switzerland and four individual complainants [1]. The decision prevents senior women and other vulnerable groups from demanding the protection of fundamental human rights threatened by climate change.

The group of more than 1100 senior women now has 30 days to take the case to the highest court in Switzerland, the Federal Supreme Court.

In response, Rosmarie Wydler-Wälti, co-president of Senior Women for Climate Protection, said, “I am shocked that the Federal Administrative Court failed to recognize the special health concerns older Swiss women face as a population highly vulnerable to climate change. The decision completely failed to consider the heightened health risks senior women face in a warming world [2]. As older women are hospitalized and even dying due to climate-induced heat waves, we demand a proper legal examination of the current and ongoing violations of our rights to life and health.”

 Georg Klingler, climate expert from Greenpeace Switzerland, has supported the Swiss seniors’ case from the beginning. He added, “The Paris Agreement explicitly affirms the importance of human rights in climate protection. If the Federal Administrative Court’s decision stands uncontested, the Swiss government would be free to ignore human rights in its climate actions. As the UN High Commissioner for Human Rights Michelle Bachelet recently explained, climate change is already affecting people’s lives and the enjoyment of human rights, particularly for vulnerable communities. Governments have an obligation to to step up their commitments to action in order to avoid the worst impacts of climate change [3].”

The link between climate change and human rights also weighs heavily in the recent Urgenda vs. The Netherlands decision, in which a Dutch court defined minimal obligations of the state to act on climate change and protect human rights [4].
Notes:
[1] Link to decision (in German): https://klimaseniorinnen.ch/wp-content/uploads/2018/12/Scan_urteil-BvG_20180512.pdf
[2] The 2018 report of the Lancet Countdown on health and climate change: shaping the health of nations for centuries to come, published online on 28 November 2018 http://dx.doi.org/10.1016/S0140-6736(18)32594-7, see page 6.
For detailed information on the scientific and legal basis of the case, see C Bähr, U Brunner, K Casper, S Lustig, ‘KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation’ (2018)  9 Journal of Human Rights and the Environment 194, available at: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml.
[3] UN High Commissioner for Human Rights Michelle Bachelet, Open Letter, 21 November 2018, available at: https://www.ohchr.org/Documents/Issues/ClimateChange/OpenLetterHC21Nov2018.pdf
[4] For more details about Urgenda v. The Netherlands, see: https://www.urgenda.nl/en/themas/climate-case/

History of the case:

See also article published in september 2018 in the Journal for Human Rights and the Environment: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml

In November 2016, Senior Women for Climate Protection filed a legal request with the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and other federal authorities, calling for greater climate ambition in order to protect their fundamental rights to life and health. After the authorities rejected the request, the group filed an appeal with the Federal Administrative Court. The Federal Administrative Court has now rejected the appeal, using the flawed reasoning that everyone is impacted by climate change and thus the senior women do not have a right to have their case heard.

Contacts:
Kristin Casper, Litigation Counsel, Greenpeace International, +1 720 917-8498, kristin.casper@greenpeace.org

Rosmarie Wydler-Wälti, Co-president, Senior Women for Climate Protection, +41 79 567 67 73, rosmariewydler@sunrise.ch

Ursula Brunner, Legal Counsel, Senior Women for Climate Protection, +41 79 293 0282 / 43 377 66 88, brunner@ettlersuter.ch

Cordelia Bähr, Legal Counsel, Senior Women for Climate Protection, +41 78 801 70 34, baehr@ettwein.ch

Georg Klingler, Climate Expert, Greenpeace Switzerland, +41 79 785 07 38, gklingle@greenpeace.org

Feature image: Anna Grear

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Carbon Majors inquiry – London hearings and student competition

The London hearings of the Carbon Majors inquiry http://essc.org.ph/content/nicc/ will take place this week at the London School of Economics.

Joana Setzer and Annalisa Savaresi have written a short blog post on what to expect from the hearings. The blog includes information on how to follow the live webcast. You can access the blog here: http://www.lse.ac.uk/GranthamInstitute/news/the-carbon-majors-inquiry-comes-to-london/

The hearings will conclude on Thursday 8th November with a public debate, where Commissioner Cadiz, Luke Harrington, Kristin Casper, Joana Setzer, Stephen Humphreys and I will reflect on the theme of ‘Human Rights and Climate Change’. You can find the details on how to attend here:  http://www.lse.ac.uk/GranthamInstitute/event/human-rights-and-climate-change/.

A recording of the event will be available here: http://www.lse.ac.uk/lse-player?category=public+lectures+and+events

At the event,  a student competition to support the drafting of the Philippines Human Rights Commission’s recommendations will be launched. The competition is supported by the Institute of Environmental Science for Social Change in the Philippines, the London School of Economics and Political Science, and the University of Stirling. Details of the competition are available here: http://essc.org.ph/content/student-competition

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Urgenda Climate Change Judgment Survives Appeal in the Netherlands

By Jonathan Verschuuren

This blog post was originally published on the Tilburg University Environmental Law Blog

Today, the Higher Court in the Dutch city of The Hague rendered its judgement in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Higher Court today rejected all objections by the State in firm and straightforward language. The Higher Court stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention of Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Higher Court, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the COconcentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Higher Court briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44)

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs, courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers, on the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved.

In remarkably clear language, the Higher Court rejects all objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Higher Court invokes the precautionary principle. The Higher Court stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have proactive climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Higher Court argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case.” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more as within the EU, climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Higher Court considers it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Higher Court simply rejects this by referring to the special position of the Netherlands as a rich, developed state, that has gained much of its wealth through extensive use of fossil fuels. Quite humorful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Higher court!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Higher Court simply refers to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Higher Court does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

Today the Dutch Higher Court followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

Feature image: Dina Townsend

 

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New edition of the JHRE

The latest edition of the Journal of Human Rights and the Environment is now out! The theme of the edition is Indigeneity, Human Rights and the Environment:

You can read more about this latest edition (including two open access articles here)

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Open letter from UK academics: The harsh sentencing of anti-fracking campaigners sets a dangerous precedent

[This letter was originally titled ‘Open letter from University of Sussex academics: The harsh sentencing of anti-fracking campaigners sets a dangerous precedent’. Although signers from other organisations have always been welcome, given the overwhelming support, we have officially opened it up to academics from across the country (and international allies) who wish to express their concern. The full letter including the list of signatories can be found here.]

We the undersigned are writing to express our growing concern about the shrinking space for communities and environmental defenders to engage in civil opposition to fracking developments in the UK.

This week three non-violent campaigners opposing fracking were jailed for 15 to 16 months simply for ‘causing a public nuisance’ and for not expressing regret. Although others have received jail sentences in more recent times, this is the first time since 1932 that environmental defenders have been imprisoned for such long periods of time for staging a protest in the UK. It is also the first time ever that activists have been jailed for anti-fracking actions.

With fracking companies increasingly granted civil injunctions to prevent protest, the scope of protest is becoming more and more restricted, representing a threat to fundamental rights to freedom of expression and assembly.

Fracking is controversial in the UK. According to government surveys conducted in 2017, only 16% of people support fracking development. Given the grave environmental consequences of hydraulic fracturing and growing concerns about climate change, this is not surprising.

The ruling sets a worrying precedent, curtailing opportunities for the kind of public protests that have historically been effective in instituting the legal and policy changes that defend our environment for our future generations. We need more, not less, space for action to confront unsustainable industrial practices that harm our communities and perpetuate our reliance on fossil fuels.

We oppose this absurdly harsh sentence and join calls for an inquiry into the declining space for civil society protest that it represents.

More information is available at the supporters’ web site at http://frackfreefoursupporters.org/

RECENT MEDIA COVERAGE

The Independent UK:
Anti-fracking activists jailed for ‘causing a public nuisance’ during four-day protest https://ind.pn/2OAa18F

Fracking protesters’ ‘absurdly harsh’ jail sentences sparks calls for judicial review backed by hundreds of scientists https://ind.pn/2OylGEY

The Guardian:
Four anti-fracking activists face prison over protest http://bit.ly/2Ox9pQQ

You can sign the letter here: 

https://docs.google.com/forms/d/e/1FAIpQLScmXGgV93AycjcfbWmWBQ_7eYxbI69n5PIQhM_0B9kF1qMSaA/viewform

Featured image: geography.org.uk

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