By Sylvie Gallage-Alwis and Gaëtan de Robillard of Signature Litigation
2022 has seen the growth of European climate litigation continue unabated. Both the Court of Justice of the European Union and the European Court of Human Rights are currently grappling with a number of significant climate litigation cases.
This said, the recent growth for climate litigation in the EU may be dampened somewhat by a recent ruling of the Court of Justice of the European Union (CJEU). This related to one of the earliest EU climate cases, known as the People’s Climate Case. This case was originally launched in 2018 by ten families from France, Italy, Portugal, Germany, Romania, Kenya, Fiji and the Swedish Sami Youth Association, Sáminuorra.
The plaintiffs argued that the EU’s target to cut greenhouse gas emissions by 40% by 2030, compared to 1990 levels, was insufficient. They argued that the resultant worsening of climate change would threaten the plaintiffs’ fundamental rights, including those to life, health and property. Without addressing the specific merits of this claim, the European General Court dismissed the case on procedural grounds, holding that the plaintiffs were not sufficiently directly impacted by the policies, per the “direct and individual concern” requirement in EU law.
On 25 March 2022, the CJEU upheld the General Court’s order on appeal, finding that the plaintiffs had indeed failed to show that they would be sufficiently individually impacted by the EU’s policy.
The CJEU also rejected the plaintiffs’ arguments that the General Court did not take into account the climate harms specific to them. The CJEU agreed with the lower court’s view that “the fact that the effects of climate change may be different for one person than they are for another does not mean that, for that reason, there exists standing to bring an action against a measure of general application”.
The CJEU went on to reject the plaintiff’s argument that invoking an infringement of fundamental rights established standing. The court held that “the appellants’ reasoning, in addition to its generic wording, leads to the conclusion that there is locus standi for any applicant, since a fundamental right is always likely to be concerned in one way or another by measures of general application”. The appeal was therefore dismissed, and the plaintiffs were ordered to pay the costs of both the European Parliament and the Council of the EU.
This may set back the prospects for rights-based climate litigation in the EU. However, rights-based cases could well stand a better prospect of success in the European Court of Human Rights.
In a recent global study of the field of rights-based climate litigation, academics Savaresi and Setzer identified 112 ongoing climate litigation cases “including judicial and non-judicial complaints – that rely in whole or in part on human rights.” They noted that geographically such rights-based cases were mostly brought in Europe, followed by North America, Latin America, the Asia-Pacific and Africa. By contrast, they found that “in general climate litigation … the vast majority of cases have been brought in the US, followed by Europe and the Asia Pacific.”
The researchers concluded that “rights-based climate litigation is a relatively recent phenomenon, when compared to general climate litigation. Human rights arguments began to feature more prominently in climate litigation after the adoption of the Paris Agreement in 2015. Because a rights-based climate approach is so recent and many of the cases are still pending, it is too early to draw any definitive conclusions on their outcomes.” However, their preliminary analysis found that “the majority of rights-based cases have been decided against the applicants (56% against and 44% in favour– for a total of 57 decided cases”.
Therefore, rights based climate litigation is both in its infancy and a risky business, with little in the way of supportive precedent as yet. The EU’s recent ruling in the People’s Climate Case underscores the risks of the rights based approach.
However, it is significant that the EU’s Aarhus Regulation has now been amended to make it substantially easier for some plaintiffs to request an internal review, which would require the European Commission to internally consider whether an administrative act is contrary to EU environmental law. Although many might have hoped that the Commission would automatically make sure this was the case, this review process may prove useful since the Commission can make some distinctly questionable determinations on environmental matters.
By way of example, the applicants in the EU Biomass case recently requested an internal review. This related to the European Commission’s co-decision to include forest biomass under the EU’s Taxonomy Regulation, which established a framework to identify ‘sustainable investment’. This is not the only controversial decision relating to this regulation, however. The European Commission’s 2 February 2022 inclusion of gas and nuclear power as being “sustainable” under the Taxonomy Regulation also raised eyebrows in some quarters. If the Commission refuses to undertake an internal review relating to the EU Biomass matter, the applicants say they will refer that decision to the CJEU.
However, while plaintiffs in rights-based cases clearly face hurdles in terms of claiming locus standii at the CJEU, experts believe that the four cases currently before the European Court of Human Rights (ECHR) have a “comparatively better prospect of success”.
Last year’s decision by a Dutch court to require Royal Dutch Shell to cut carbon emissions by 45% from 2019 levels by the end of 2030 is bound to inspire further climate cases. That case was brought by Friends of the Earth and 17,000 co-plaintiffs, and was argued in part on human rights grounds, including the right to life, and the right to family life.
Another case was brought against Norway at the ECHR last year, 15 June 2021, by six individuals in their 20s, who are supported by Greenpeace and Young Friends of the Earth. The plaintiffs brought the case to the ECHR after it was rejected by three domestic Norwegian courts. They are seeking a ruling that Norway’s 2016 granting of licences for oil exploration in the Barents Sea violate article 112 of Norway’s constitution and fundamental human rights. In January 2022, it was reported that the ECHR could treat the case as an “impact case” which could significantly shorten, the time taken to hear it.
In April 2022, the Norwegian government responded, asking that the ECHR to dismiss the case, and for the court to “find that the complaint is inadmissible or that there has been no violation”. The Norwegian Attorney General also referred to the impact of the Ukraine war and “Russia’s instrumentalization of energy”. However, Frode Pleym, the head of Greenpeace Norge responded with a statement saying that, “War in 2022 does not legitimate oil decisions taken in 2016 nor that we need new production for several more decades to come”.
There are three other climate related cases before the ECHR, including Duarte Agostinho, which was brought by a group of Portuguese children and young people against Portugal and 32 other states. One unusual feature of this case is that the complaint was brought directly to the ECHR without an initial claim being made in a domestic court. The historic openness of the ECHR to expanding its case law on environmental matters is demonstrated by the third edition of its Manual on Human Rights and the Environment.
Climate litigation in Europe represents a relatively novel area of law. Many significant cases have not yet even been heard by the courts. Those cases have had varying outcomes, of course. However, there is no doubt that activists and citizens see climate litigation as a potentially potent tool in achieving meaningful results in terms of requiring states and corporations to reduce harmful emissions. They are mounting ambitious cases in a variety of fora and across various jurisdictions. We should not be surprised if at least some of these cases succeed in creating powerful precedents.
Of course, litigation often rests fundamentally on issues such as establishing causation and foreseeability. When it comes to establishing such basic, but crucial, issues, the ongoing development of climate science may well come to the aid of plaintiffs. In that regard, the publication of the IPCC report, Climate Change: Impacts, Adaptation and Vulnerability, in early 2022 could have an impact across many cases.
The report states unequivocally that “Since AR5, the knowledge base on observed and projected impacts and risks generated by climate hazards, exposure and vulnerability has increased with impacts attributed to climate change and key risks identified across the report. Impacts and risks are expressed in terms of their damages, harms, economic, and non-economic losses.” It goes on to say that:
“Widespread, pervasive impacts to ecosystems, people, settlements, and infrastructure have resulted from observed increases in the frequency and intensity of climate and weather extremes, including hot extremes on land and in the ocean, heavy precipitation events, drought and fire weather (high confidence). Increasingly since AR5, these observed impacts have been attributed to human-induced climate change particularly through increased frequency and severity of extreme events. These include increased heat-related human mortality (medium confidence), warm-water coral bleaching and mortality (high confidence), and increased drought-related tree mortality (high confidence). Observed increases in areas burned by wildfires have been attributed to human-induced climate change in some regions (medium to high confidence).”
Such stark conclusions, which are of course scientifically backed, go directly to the question of the foreseeability of the real harms which can arise from the emissions which cause climate change. Such evidence may well have a decisive impact on the various cases now before the European courts.
Sylvie Gallage-Alwis is both an Avocat à la Cour in France and a Solicitor in England & Wales. She is specialised in all cutting-edge complex disputes linked to products, namely product liability, product safety, toxic tort, mass litigation/class action, regulatory compliance, and environment.
Signature Litigation is a law firm specialising in complex commercial litigation, regulatory investigations and international arbitration.