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01 February 2023

Courts against climate change? Climate change litigations are reaching Europe

The climate targets of the Paris Agreement, especially to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to limit the temperature increase to 1.5°C above pre-industrial levels, are commonly known. The Paris Agreement, however, does not contain any sanctions, is not binding under international law and therefore awards no subjective rights to individuals. In recent years, activists have relied on their creativity to hold states and companies accountable. NGOs and private individuals are asserting in climate change proceedings across Europe that human and fundamental rights are being violated, arguing that states or companies are not doing enough to address climate change.

Climate change lawsuits are often directed against states aiming at introducing and enforcing stricter measures to fight climate change. A more recent phenomenon is "horizontal climate lawsuits", where carbon majors – companies with high greenhouse gas emissions – are being held accountable.

Obligation to act vs. margin of discretion

In the landmark Urgenda case, the Dutch Supreme Court upheld a 2019 ruling against the Dutch government. Under it, the government was obliged in the exercise of its legislative discretion to reduce its emissions by at least 25 % by 2020 compared to 1990 levels. The Dutch court based its judgment on the fundamental rights of the European Convention on Human Rights (Art 2 and 8) and affirmed an obligation to act. Inspired by the Dutch idea, similar proceedings were initiated in France, Belgium and Great Britain with different outcomes.

The European Court of Human Rights (ECtHR) has recognised obligations to protect in relation to environmental and natural disasters in general, even if not caused by the state. In April 2022, the climate complaint of a Swiss association (KlimaSeniorinnen) was transferred to the Grand Chamber of the ECtHR. In contrast to freedom rights, which oblige the state to refrain from certain behaviour, obligations to protect constitute a duty to act. Given that a wide margin of discretion is regularly conferred on states tasked with implementing the protection of fundamental rights, it will be challenging for courts – in particular for the ECtHR – to draw a line between lawful and unlawful behaviour.

The European Court of Justice and the Austrian Constitutional Court have so far largely been spared from climate change claims. Both courts have denied the legitimacy of climate change lawsuits. A lawsuit in Germany, where the Federal Constitutional Court overturned the German Climate Protection Act, was more successful. The Federal Constitutional Court used a relatively creative approach to justify its decision, because the unconstitutionality did not lie in an encroachment on the health of citizens but on the freedom to emit CO2 in the future.

Private law as a solution?

Climate change lawsuits against companies are receiving more and more attention but also face several hurdles. The addressee of fundamental rights is, in principle, the state and a third-party effect may be assumed only under certain conditions.  

In the Lliuya case, a Peruvian farmer is claiming compensation from German energy giant RWE for the costs of a protective dam against glacial melt. This claim was initially dismissed for lack of causation between the possible damaging action of RWE and the damage that occurred in Peru. In the second instance, an evidentiary ruling was issued, and an expert opinion will clarify RWE's share of contributory negligence. Upon closer inspection, however, the obstacles under civil law become clear. First, there must be damage, which is the least difficult requirement. But the damage must have occurred due to unlawful behaviour and concrete proof of causation may be tough to provide. Even if sufficient proof were submitted, a damages claim also requires unlawful behaviour and fault.

Applying these rules to companies participating in the EU Emissions Trading System (EU ETS) raises the question of whether a company having obtained all necessary permits can be accused of acting unlawfully and in fault when acting within the limits of the obtained permits.

In this context, the District Court in The Hague has chosen an extraordinary path in a case against Royal Dutch Shell. The court explained that insufficient CO2 reduction targets can be seen as a violation of human rights. Justification by emissions certificate trading is only possible to a limited extent, as this does not apply globally. Furthermore, the court pronounced an obligation going beyond the reduction targets of the ETS, if this is necessary to achieve the reduction obligation derived from fundamental rights. Finally, it was held that there was an international consensus that companies must independently work towards the goal of net zero emissions by 2050. Accordingly, Royal Dutch Shell was ordered in the first instance to reduce its CO2 emissions by 45 % by 2030 in all areas of activity (companies, suppliers and end users) compared to 2019.

Climate claims in Europe: Quo vadis?

Climate change lawsuits have one thing in common: they cause a stir in the media and create awareness. Successes have been achieved through so-called strategic litigation, which draws the public's attention to the alleged failings and thus exerts pressure on companies and states. Although legal victories in national courts are still rare, climate change lawsuits have finally reached Europe and – like climate change – are here to stay.

authors: Sara Khalil, Bojana Vareskic



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