9. Climate Litigation Based on Human Rights

Around 1550 climate actions are currently in progress in courts around the world. ¹ As of today, approximately 41 are based on human rights, and the number is rising.²

9.1. Introduction

International climate cases may be categorised in different ways, such as by defendant, cause of action or legal basis. If we look at who the defendant is, and what the cause of action is, we can distinguish between cases against States over emissions cuts and cases against companies that extract coal, oil and gas with claims for compensation for climate damage. In time, we can expect to see more claims also against States.³ As for the legal basis for the action, we can distinguish between cases based on national laws and regulations and cases based on international law.

Since there will be variations in national regulations and legal traditions, as well as factual differences from case to case, climate actions based on national regulations will not always be relevant beyond the nation’s borders. Lawsuits over the interpretation of international law, including international human rights, will nevertheless have some significance for other countries bound by those same rules. In general, individual national courts are not bound by interpretations from other national courts – even if the interpretation concerns rules by which that national court is also bound.⁴ However, the interpretation of international law by national courts may have implications for other national courts as an explicit source of inspiration or, more indirectly, through influence on attitudes.

This chapter provides an overview of selected climate cases based on human rights world-wide, updated as to 23 March 2021. The overview includes both finally decided and pending cases.

9.2. Climate action based on the ECHR

9.2.1. The Netherlands

In the Netherlands, two climate actions have been brought on the basis of the ECHR. The first and best-known, the Urgenda case, resulted in a judgement from the Dutch Supreme Court on 20 December 2019.⁵ The case concerned the reach of the State’s obligations under Articles 2 and 8 of the ECHR to reduce greenhouse gas emissions originating from Dutch territory. The background for the action was that in 2011, the Dutch State scaled down its target for reducing greenhouse gas emissions by the end of 2020, from a 30 percent reduction to 20 percent compared to 1990 levels.

The Court made it clear that each State is responsible for its own share of global emissions, and that State responsibility is not diminished by the fact that a single State’s emissions alone may have limited global significance. A State must therefore reduce greenhouse gas emissions from its own territory “in proportion to its share of the responsibility.” This is necessary both to avoid smaller States failing to take necessary measures, and because any reduction in greenhouse gas emissions will have a positive effect in the fight against climate change.

In the Court’s view, this obligation on the part of the Dutch State can be derived from Articles 2 and 8 of the ECHR, since dangerous climate change poses a “real and immediate risk” to the lives and well-being of the Dutch people. The fact that this risk will first materialise in a few decades, and that it will affect unspecified sections of the population rather than specific individuals or specific groups of people, did not, in the Court’s view, prevent the application of Articles 2 and 8, since “[t]he mere existence of a sufficiently genuine possibility that this risk will materialize means that suitable measures must be taken.”

As for the more detailed nature of the Government’s obligations, the Court stated that one must take into account “broadly supported scientific insights and internationally accepted standards,” including, in particular, reports from the IPCC. On the basis of the 2 degree and 1.5 degree targets, the Court found “common ground” for a need for States to reduce their own emissions by at least 25-40 percent compared to 1990 levels by the end of 2020. This consensus must, in the Court’s view, be taken into account when interpreting and applying Articles 2 and 8.

The Court also found that, since there is also broad agreement that deferred greenhouse gas reductions lead to more expensive and more comprehensive measures, as well as an increased risk of sudden and irreversible climate change, the Government is obliged to explain how, by postponing short-term greenhouse gas reduction targets, it will nevertheless be able to meet long-term climate targets. As the Dutch State could not provide such an explanation in connection with the downward adjustment from 30 to 20 percent reduction, the Court concluded that the State is obliged to meet the short-term target found necessary by the international community, namely a reduction in greenhouse gas emissions of at least 25 percent compared to 1990 levels by 2020.

The second human rights climate action in the Netherlands is aimed at the oil company Royal Dutch Shell. The case was filed in April 2019 by the association Milieudefensie and others.⁶ The plaintiffs argue that Royal Dutch Shell has a positive legal obligation to reduce its greenhouse gas emissions under Articles 2 and 8 of the ECHR, as well as under Dutch legislation. The case is currently before the Court of first instance in The Hague, and the Court is expected to render judgement on 26^th of May 2021.⁷

9.2.2. Ireland

In June 2020, the Irish Supreme Court heard a case against Ireland brought by the association Friends of the Irish Environment.⁸ The association argued that Ireland’s national plan for greenhouse gas reduction violated its obligations under Articles 2 and 8 of the ECHR, since no objectives existed to reduce emissions sufficiently quickly. The case did not succeed in the District Court.⁹ The decision was appealed directly to the Supreme Court, which extraordinarily allowed the appeal to “leapfrog” over the Court of Appeal, citing the case as being of “general public and legal importance.”¹⁰

The Supreme Court overruled the lower court’s judgement and held that the greenhouse gas plan was invalid, as the plan in the Court’s view was not sufficiently specific with regard to how emissions cuts would be implemented. The government’s submission that the plan was a matter of “policy”, and that it was therefore beyond the competence of the Court, was not upheld. The Court stated that although the plan was based on policy, it still had to be in line with the framework set out in its legal basis, namely Irish climate legislation.¹¹

Although the main issues of the action were thereby settled, the Court decided, for the sake of judicial clarification, to also decide on whether the association had standing under Irish law to invoke the applied human rights. The Court declared that the rights to life and physical integrity are personal rights, and therefore not something that legal persons in principle can invoke on their own behalf. Under Irish law, there must be special reasons for legal persons to be able to bring an action for an alleged infringement of such rights. The Court found that the association could not demonstrate why it was necessary for the association – and not an individual – to file the action, which meant that no exception could be made to the principle that legal persons should not have access to file actions on such rights.¹² The Court therefore did not decide on the issue of whether the plan violated Articles 2 and 8 of the ECHR.

In the interests of legal clarification, the Court also made some statements on the issue of whether a right to “a healthy environment” could be read into the Irish Constitution, which unlike the Norwegian Constitution does not include an explicit environmental provision. The Court first pointed out the need to avoid conflating law and politics, but then concluded that if an individual claims that their rights have been violated, the Court is obliged to enforce the rights in question – even if the assessment of whether there is an offence may relate to political issues. The Court therefore stated that “[c]onstitutional rights and obligations and matters of policy do not fall into hermetically sealed boxes.”¹³

However, the Court found that it is unclear what a right to “a healthy environment” should entail, and whether this might add anything beyond the already existing rights to life and physical integrity. For this reason, the Court did not see any basis for establishing a constitutional right to “a healthy environment.” Subsequent questions about a “healthy environment” must therefore principally be considered on the basis of the right to life and personal integrity.

9.2.3. Switzerland

On 5 May 2020, the Supreme Court of Switzerland delivered a verdict in a climate action case.¹⁴ The background for the case was that four older women over the age of 75 and a special interest organisation for this group (KlimaSeniorinnen) had approached the Swiss authorities with a demand that the authorities take a number of specific actions to fulfil Switzerland’s obligations under the Paris Agreement. As stated in the judgement, Article 25a of the Swiss Administrative Procedure Act has a special form of appeal process, whereby a request can be made that the authorities refrain from unlawful acts or discontinue such acts. One of the conditions for making such a request is that the case affects the rights or obligations of the person concerned (“Rechte oder Pflichten berühren“). The authorities rejected the claim and the women were not allowed to appear before the administrative tribunal. The case was then appealed to the Supreme Court.

The women argued that they were sufficiently affected to file an appeal, since the State had a duty of action under Articles 2 and 8 of the ECHR, as well as corresponding Swiss constitutional provisions. Their reasoning was that women over the age of 75 have a proven elevated risk of death during extremely hot summers, which is already an observable consequence of climate change.¹⁵

The Swiss Supreme Court did not allow the appeal. At the heart of the Court’s reasoning was that any exceeding of the Paris Agreement’s objective of keeping the temperature increase “well below 2 degrees Celsius” is not imminent, that there is still enough time to avert a temperature increase above this threshold, and that the women’s rights for this reason are not sufficiently affected at this time. The Court held that, based on a relatively narrow assessment of legal sources relevant to the ECHR, there was no breach of the ECHR.¹⁶ The issue of connection to a potential human rights violation is apparently part of the conditions for the administrative right to appeal. In Section 5.4 of the decision, the Court concludes that there was no substantive violation of Articles 2 or 8 of the ECHR, and that the women procedurally would not have victim status before the ECtHR under Article 34 of the ECHR.¹⁷

The judgement is relatively short and thus lacks a detailed discussion of the issues at hand, but is in apparent conflict with established climate science. The Court’s assessment that there is enough time to avert a temperature increase above the Paris Agreement’s target of 1.5 and well below 2 degrees, for instance, is difficult to reconcile with scientific evidence.¹⁸ As greenhouse gas emissions – especially from CO₂ – have a long-lasting impact, half of the warming resulting from emissions will occur within a decade, while most of the remaining warming will occur over the next hundred years, and then a smaller amount on a millennial scale.¹⁹ In other words, warming as a result of historical and inevitably impending greenhouse gas emissions is locked in with long-term effects from the moment of emission.²⁰ It therefore makes little sense to assume that one can avert 1.5 or well below 2 degrees by reducing emissions just ahead of average temperatures reaching dangerous levels. By then it will already be too late.²¹

It is also unclear how much the Court emphasised the fact that the women are unlikely to be alive by the time average temperatures may exceed the limits of the Paris Agreement. There are statements in the decision that might imply that this has been a weighty argument, and if so, it is unclear whether the Court would have reasoned differently if the appellants had been younger. Another uncertainty is whether the Court has actually taken a stand on the women’s argument that they are already personally affected by climate change, as a result of heatwaves in the summer. The IPCC’s risk analysis shows that the risk of heat-related illness and mortality is already at a moderate level as a result of the current one-degree temperature increase.²²

The organisation filed a complaint before the ECtHR, and in April 2021 the Court accepted the complaint, giving the case priority status.²³

9.2.4. Belgium

On 27 April 2015, a climate action against the Belgian State was brought by a civil society organisation.²⁴ The organisation has argued that the Belgian Government must take more forceful measures to reduce greenhouse gas emissions. Specifically, the plaintiffs requested that the State reduce emissions by 40 percent of the 1990 level by the end of 2020 and by nearly 90 percent by the end of 2050. The action is based on Articles 2 and 8 of the ECHR, as well as the Belgian civil law, the Constitution of Belgium and the Treaty on the Functioning of the European Union (TFEU). The case is pending at the French-speaking court of first instance in Brussels. The case is under consideration and has not yet been decided on.

9.2.5. Austria

In February 2020, Greenpeace Austria and others brought an action before the Austrian Constitutional Court.²⁵ They requested that the regulations that currently provide tax exemptions for flights, but not for train travel, must be found invalid. The plaintiffs argued that emissions from flights threaten basic human rights. Specifically, the plaintiffs argued that the rules on tax exemption for flights are contrary to Article 2 of the ECHR concerning the right to life, as well as Article 8 of the ECHR concerning the right to privacy and family life. The plaintiffs also argued that the regulations are contrary to the right to privacy and family life pursuant to Article 7 of the EU Charter of Fundamental Rights.

The case also contained a request for an interpretation statement from the European Court of Justice regarding the legal content of Article 37 of the Charter, which reads as follows: “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”. The plaintiffs wanted the EU Court of Justice to consider whether the provision should be understood as a provision of rights that can be enforced and tried legally by the courts. On September 30 2020, the Constitutional Court dismissed the case as inadmissible on the grounds that rail passengers do not have standing to sue over preferential tax treatment given to air travel.²⁶

Another Austrian case regards a man suffering from a temperature-dependent form of multiple sclerosis. His condition affects muscles when temperatures rise above 25 degrees Celsius, and as climate change is leading to an increase in the number of days with a temperature of over 25 degrees, he wishes to sue Austria for lack of mitigating action. Under Austrian law, inaction by the the legislator cannot be legally challenged, and so the case is being brought directly before the ECtHR. According to the organisation Fridays for Future – which is supporting the lawsuit – the application will be lodged before the ECtHR on the 12^th of April 2021.²⁷

9.2.6. France

In November 2019, the French Constitutional Council settled a case filed by the Union des industries de la protection des plantes.²⁸ The case concerned claims that a ban on the production, storage and transportation of unapproved pesticides violated constitutional rights relating to balanced commercial conditions in agriculture and food production. The Constitutional Council pointed to the French Charter for the Environment, which initially states that “the future and very existence of mankind is inextricably linked with its natural environment”, and that “choices designed to meet the needs of the present generation should not jeopardise the ability of the future generations and other peoples to meet their own needs,” as well as to the French Constitution’s preamble, stating that the State should ensure for everyone “protection of their health.”²⁹ The Council further pointed out that the legislature must balance these rights with the right to free trade. In this regard, the Council stated that the legislature also has the right to take into account the effect an activity in France has on the environment beyond France’s borders. The Council found that the legislature’s trade-off in this case was not “manifestly unbalanced”, and the claim of wrongdoing was consequently rejected.³⁰

As of March 2021, there are also three active climate actions in France based on the ECHR. One action was brought against the State by a municipality (Grande Synthe) near Dunkirk, which is at an elevation below sea level.³¹ The municipality is particularly vulnerable to climate change in the near future and requires the authorities to take measures to reduce greenhouse gas emissions in order to comply with obligations under Articles 2 and 8 of the ECHR. On November 19 2020, the Supreme Court for administrative justice (Conseil d’État) found the case admissible. The Court held that France has committed itself to a 40 % reduction in GHG emissions by 2030, and gave the government three months to provide evidence that it is taking adequate action towards meeting this target. Although the Court signaled that French and European law will constitute the legal basis for the final jugdgment, it highlighted that the Paris Agreement will be relevant for the interpretation of national law.³²

The second action was brought by the association Notre Affaire à Tous against France in March 2019.³³ The dispute relates to whether France’s failure to reduce greenhouse gas emissions violates Articles 2 and 8 of the ECHR, as well as a general principle of international law on the right to live in a preserved climate system. In a decision on February 3^rd 2021, the Administrative Court of Paris held that State inaction in relation to climate change is the cause of ecological damage, and in response awarded the association one euro for moral prejudice, as requested by the association. Furthermore, the Court held that the State can be held responsible under EU and national law for failing to meet its own climate targets. However, the Court deferred the decision on whether or not to order the government to take stronger mitigating action against climate change, and gave the State two months to disclose the steps it is taking to meet its climate targets.³⁴

The third action was brought by 12 municipalities, one region and several environmental protection associations against the French oil company Total.³⁵ The plaintiffs argue that Total has infringed French legislation, interpreted in light of Articles 2 and 8 of the ECHR, since the company has not reported climate risks and initiated measures to reduce emissions under the objectives of the Paris Agreement. The case was filed in March 2019 and is currently before the Administrative Court in Paris.

9.2.7. The European Court of Human Rights

In September 2020, four Portuguese children and two young adults brought an appeal before the ECtHR against 33 States, called Duarte Agostinho v. Portugal et al. The plaintiffs argue that the States have infringed their rights under Articles 2, 8 and 14 of the ECHR by failing to take adequate measures to limit the effects of climate change, including keeping the global temperature increase at 1.5 degrees.³⁶ The Court has also at its own initiative requested that the parties consider whether there have been infringments of Article 3 or Article 1 of Protocol 1, alone or in conjunction with Article 14.³⁷ The countries in question are the EU Member States, as well as Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The case was communicated 13^th of November 2020, and has not yet been decided on.

In April 2021, the ECtHR communicated the Swiss case mentioned in section 9.2.3 above.

9.3. Individual communications about climate based on UN human rights conventions

9.3.1. New Zealand

In the 2019 case of Teitiota v. New Zealand, the UN Human Rights Committee decided on an individual communication by a person from the island state of Kiribati in the Pacific Ocean, whose asylum application had been rejected by New Zealand.³⁸ The individual applied for asylum because of rising sea levels in his home country, arguing, among other things, that sea level rise has led to a lack of clean drinking water and opportunities to obtain food. He further argued that rising sea levels have led to more frequent and more severe cases of flooding, as well as violent clashes caused by land disputes. He appealed the rejection of his asylum application to the UN Human Rights Committee for violating the right to life under Article 6 of the UN Convention on Civil and Political Rights (ICCPR). The Committee concluded that there was no breach of Article 6, and the communication therefore did not succeed. In its decision, the Committee also stated that climate displaced people could have protection against return under Article 6, if there is a real risk of loss of life, even if the specific circumstances of this particular case were not of sufficient seriousness at the time of the communication.³⁹

9.3.2. Australia

In Torres Strait Islanders v. Australia, a group of indigenous appellants has filed a communication with the UN Human Rights Committee alleging that Australia is violating its obligations under the ICCPR.⁴⁰ This is the first case in Australia to argue that a lack of climate action constitutes a breach of human rights obligations. The appellants, who are indigenous peoples from the low-lying Torres Strait Islands north of Queensland, argue that Australia is violating its duty to secure a number of rights enshrined in the Convention, by not taking sufficient action to stop climate change. In the long term, climate change will cause the islands to disappear below the surface of the ocean as a result of rising sea levels. The rights in question are the right to life (ICCPR, Article 6), the right to privacy and family life (ICCPR, Article 17) and the right of ethnic minorities to their culture (ICCPR, Article 27). The appellants have argued that both the Government’s failure to take action to reduce greenhouse gas emissions and a lack of climate adaptation measures on the islands constitute a violation of these obligations. The appeal is being considered by the Committee and has not yet been decided on.

9.3.3.Argentina, et al.

In September 2019, a group of 16 children lodged an appeal against Argentina, Brazil, France, Germany and Turkey to the UN Committee on the Rights of the Child for violations of several of the rights enshrined in the UN Convention on the Rights of the Child (UNCRC).⁴¹ The appellants argue that these States have not taken adequate measures to prevent greenhouse gas emissions and subsequent climate change. They argue that climate change leads to violations of children’s rights under the Convention, specifically children’s right to life (UNCRC, Article 6), children’s right to health (UNCRC, Article 24), the principle of the child’s best interests (UNCRC, Article 3) and the cultural rights of children belonging to a minority or an indigenous people (UNCRC, Article 30). The communication, Sacchi et al. v. Argentina, et al. is currently before the Committee and has not yet been decided on.⁴²

9.4. Climate action based on the EU’s Charter of Fundamental Rights

An action based on the EU Charter of Fundamental Rights was brought by Armando Carvalho and others, and unites plaintiffs from Europe, Fiji and Kenya, calling for an injunction in order for the EU, through the European Parliament and the European Council, to adopt more stringent emission reductions. They claim that the EU has infringed their rights under the Charter, particularly the rights to life (Article 2), physical integrity (Article 3), children’s rights (Article 24), right to work (Article 15), right to property (Article 17) and the right to equal treatment (Articles 20 and 21). The case was rejected by the Court of First Instance of the European Court of Justice on 8 May 2019, because the plaintiffs did not meet procedural conditions under Article 263, fourth paragraph, of the TFEU of being directly or individually affected by the cited EU regulations. On 25 March 2021, the Court of Justice of the European Union (CJEU) upheld the decision.⁴³ The CJEU held that the acts at issue did not “affect the appellants by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons”.

9.5. Selected climate actions based on national legal rules

9.5.1. United Kingdom

In December 2017, the organisation Plan B and 11 citizens aged 9 to 79 brought an action against the United Kingdom.⁴⁴ The plaintiffs argued that the UK’s 2050 climate target is not in line with the Paris Agreement or recent research, and that the Government is therefore committed to enhance its target. In July 2018, the High Court decided not to hold a full hearing on the case, on the grounds that it was unlikely that the plaintiffs’ argument would be able to succeed. Among other things, the Court stated that the Paris Agreement does not imply any binding legal obligation on States to reach certain temperature levels by 2050. Appeals were not allowed.

In August 2018, the organisation brought a new action, this time alleging that the Government, when planning an expansion of the Heathrow airport, had failed to consider the plans in light of the Paris Agreement’s 1.5-degree limit.⁴⁵ The Government claimed that the Paris Agreement was not relevant to the State’s policies on climate change. In February 2020, the Court of Appeal unanimously ruled in favour of the organisation. The Paris Agreement was relevant to consider both under the the EU SEA Directive⁴⁶ and under UK planning legislation.⁴⁷ However, in December 2020, the Supreme Court overturned the Court of Appeal’s decision, and ruled in favour of the Government.⁴⁸ The Supreme Court ruled that the Government had taken the obligations under the Paris Agreement sufficiently into consideration, seeing as the expansion of Heathrow Airport would require a Development Consent Order (DCO) where any further development would have to be measured against updated emission targets.⁴⁹ The plaintiffs have announced that the decision will be brought before the ECtHR.⁵⁰

Plan B also brought an action in July 2020 claiming that the Government, in its economic design of “the COVID Recovery Programme”, failed to take into account national climate and human rights regulations, the Paris Agreement and other legal obligations.⁵¹ Since the initial action, the lawsuit has evolved into a collaboration with the Stop the Maangamizi campaign, and is currently led by three young British citizens who have family in regions of the world that are already experiencing severe effects of climate change (countries in Africa and the Americas, including the Caribbean and Latin America). The plaintiffs are arguing that the UKs failure to produce a plan that reduces emissions in line with the state’s obligations, and the continued financing of high emission actors, constitutes a violation of the right to life, the right to family and of the international duty to prevent harm.⁵²

Another ongoing case was filed before the High Court of Justice in September 2020 by Friends of the Earth England, Wales, and Northern Ireland, and concerns the legality of the State’s decision to provide approximately $1 billion in financing to a large liquified natural gas (LNG) development in Mozambique. According to the organisation, the construction phase alone will increase Mozambique’s GHG emissions by up to 10 % by 2022. The organisation argues that the decision to invest is inconsistent with the UK’s obligations under the Paris Agreement, and that the decision is unreasonable (and thus substantively unlawful) due to the major impacts on climate change, biodiversity and human rights, and due to the State’s failure to adequately investige and consider these impacts.⁵³

9.5.2. Germany

In Germany, there have been three human rights climate actions based on German legislation. The first was brought in October 2018 by Greenpeace Germany and three German farming families.⁵⁴ The action was brought before the administrative court in Berlin. At the time of the case, the German Government had adopted a goal of reducing greenhouse gas emissions by 40 percent of 1990 levels by the end of 2020. According to the Government’s own forecasts, Germany would cut 32 percent by the end of 2020, and thereby not meet the emissions reduction target. The plaintiffs argued that the German State, by failing to meet its goal of cutting emissions by 40 percent, would violate several rights enshrined in the German Constitution, specifically the right to life and health, the right to professional freedom, the right to property and the German constitutional provision on the right to a viable environment for future generations.

The Court found that the plaintiffs did not have standing to bring an action alleging that their individual rights had been infringed. However, Article 20(a) of the Constitution on the right to a viable environment could also be enforced by the courts, and on this issue the plaintiffs had standing. The Court therefore considered whether the Government’s measures to reduce emissions were in accordance with the Government’s duty to ensure fundamental rights enshrined in the German Constitution. The Court noted that the State has a wide margin of appreciation when it comes to what measures to adopt, provided that the measures are not completely unsuitable or inadequate.⁵⁵ The Court concluded that the German Government’s new climate target of reducing emissions by 32 percent, rather than 40 percent, by the end of 2020 was not in violation of the German Constitution. Among other things, the Court pointed out that the Dutch Supreme Court in the Urgenda case had concluded that the obligation under Articles 2 and 8 of the ECHR was to reduce greenhouse gases by at least 25 by 2020.⁵⁶ The rejection was not appealed.

The second action was brought in November 2018. The organisation Bund für Umwelt und Naturschutz Deutschland and others have filed an action before the German Administrative Court against the German State.⁵⁷ The plaintiffs argue that the German State has violated the plaintiffs’ constitutional rights by failing to meet their own emissions reduction targets and the EU’s 2020 target. As such, this case is similar to the previous German climate action. The plaintiffs further argue that the German State has a legal obligation to base its climate policy on the current knowledge of climate change, rather than the 2-degree target. The case is under consideration and has not yet been decided on.

In February 2020, a group of German youths and individuals in Bangladesh and Nepal brought a third action against the German State, arguing that the Government’s emissions-cutting target of reducing greenhouse gas emissions by 55 percent of 1990 levels by 2030 is insufficient.⁵⁸ According to the plaintiffs, Germany will have to reduce emissions by 70 percent. The plaintiffs argue that the State violates several constitutional rights, specifically the right to life and physical integrity (Article 2.2), the right to property (Article 14.1) and Article 20(a) of the Constitution that protects the foundation of life for future generations, by not making adequate cuts to greenhouse gas emissions in Germany and by allowing too much transmission of allocation of emissions through the carbon credit system.

In April 2021, the constitutional complaints were partially successful.⁵⁹ The German Constitional Court held that the right to life and physical integrity in the German Constitution give rise to a positive obligation to reduce emissions to protect life and health from risks posed by climate change. The right to life and physical integrity could furthermore give rise to an objective duty to protect future generations. The Court referred in this context to ECtHR case law under Articles 2 and 8. The Court further held that the right to property, including social ties to the local environment and home, obliges the state to protect against threats from climate change. The standard for review adopted by the Constitutional Court was relatively high; measures could not to be manifestly unsuitable or intierely inadequate. A climate policy that relied exclusively on adaptation measures, or did not pursue climate neutrality in the near future would contravene these rights. Since the Climate Act pursued climate neutrality by 2050, and set out a specified reduction trajectory to reduce emissions by 55% by 2030 compared to 1990 levels, having reduced emissions by 40% by 2020, the Court held that the State had not violated its positive obligations.

The Court also held that Article 20(a) on the environment was justiciable before the Court, and placed the State under an obligation to limit global warming to the constitutionally relevant threshold of well below 2 degrees Celsius, and preferably 1.5 degrees Celsius above pre-industrial levels, translated into Germany’s share of the residual carbon budget, as stipulated by the IPCC and the German Climate Council (paras. 208, 212, 217). This obligation was reinforced by Articles 2.2 and 14.1 (para. 246). The Court noted that the State could not evade its responsibility by pointing to emissions in other states (para. 203). Rather, the global nature of greenhouse gas emissions and the reliance on the international community gave rise to an obligation to actually implement one’s own climate action measures at the national level and not to create incentives for other states to undermine the required cooperation (para. 203). The Court also noted that Article 20(a) limits the scope for political decision-making, since the democratic political process is organised on a shorter term basis which structurally runs the risk of underplaying long term ecological risks to which unrepresented future generations will be particularly affected (para. 206).

While it could not be ascertained at present that Article 20(a) had been violated, the Court held that the Climate Act was unconstitutional insofar as it failed to specifiy annual emission reductions after 2030. The Court reasoned that the rapid depletion of the finite carbon budget before 2030 unilaterally and irreversibly offloaded a drastic burden to cut emissions after 2030 on younger and future generations, exposing them to a disproportionate risk of infringements of their future rights which the State ought to take precautionary steps to protect. In that connection, it was not sufficient to set out ambitious targets for emission reductions in the future, as these targets in themselves were meaningless unless coupled with a specified, annual reduction rate according to the residual carbon budget. The Court further observed that it would not be consistent with the precautionary principle to rely on negative emissions technologies that were not yet scalable or developed, or emission trading (paras. 226-229).

With respect to the plaintiffs from Nepal and Bangladesh, the Court granted standing, but did not conclude as to the eventual scope of any positive obligations to cut emissions vis-à-vis them. The Court pointed, however, to the possible connection factor between greenhouse gas emissions emanating from Germany and the severe climate-induced impairments of their human rights.

9.5.3. Poland

In June 2019, the association ClientEarth, along with over 60 farmers, won a case against the company Polenergia. The company had been granted permission by regional authorities to build a new coal-fired power plant – which was planned to be one of the largest in Europe – in the middle of a fertile agricultural area. The permit was granted without taking either the local community or environmental challenges into account.⁶⁰ Poland’s highest administrative court found that the regional authorities had acted in violation of the law, since they did not take the local community into account when considering the building application. The Court also found that the authorities had not given sufficient weight to the NGOs’ assessment of the environmental consequences of the project.

In September 2019, the association filed a new action, this time against Europe’s largest coal-fired power plant, Belchatow.⁶¹ The power plant is estimated to have released around 1 billion tonnes of CO₂ into the atmosphere and is thereby considered the single greatest source of of greenhouse gases emissions in Europe. ClientEarth points out that the company has no official plan to reduce its emissions, and requests that the company take steps to limit its CO₂emissions – principally by stopping the combustion of coal by 2035. The association bases the action on a Polish legal provision stating that environmental organisations can file an action if they believe that a specific activity harms the environment as a common good. In a decision of 23 September 2020, a Polish court of first instance has ordered Belchatow to attend conciliation proceedings with ClientEarth to accelerate the closure of the coal-fired power plant and find a solution within three months. ClientEarth has called the decision a milestone, and a “major breakthrough for the environmental movement.”⁶²

9.6. General trends and developments

This overview of settled and selected ongoing climate cases based on human rights internationally provides a basis for some reflections.

Firstly, it is worth noting that in the court decisions that exist so far, the climate science premises are considered undisputed facts. For instance, when Ireland’s Supreme Court allowed a direct appeal over the Court of Appeal in February 2020, part of the reasoning was that no further evidence was needed in the Court of Appeal since the parties agreed on the actual premises.⁶³ The courts also consistently seem to apply climate science correctly. The Swiss decision in the action from KlimaSeniorinnen, however, stands out. Here it seems that the Court may have made an incorrect assessment when it comes to the scientific premises and implications.

Another consistent feature of several of the court decisions so far is that the parties disagree on whether environmental organisations or general sections of the population can assert this type of rights before the courts. The issue of whether environmental organisations have standing has prevented the consideration of the substance of the climate actions that so far have been brought before the European Court of Justice. The lack of a right of action under national law was also a decisive factor in Swiss law and partly in Irish law. Standing was not in dispute in the Dutch Urgenda case, which was brought as a so-called actio popularis. Standing could nevertheless have come to the forefront if the case had not succeeded nationally, and Urgenda had appealed the decision to the ECtHR.⁶⁴ As discussed above, the ECtHR does not generally accept actio popularis, but has at the same time allowed appeals from organisations on behalf of a larger group of individuals when it is a matter of particular types of offenses.⁶⁵

Given that environmental organisations have the right to bring climate change cases before the courts, this raises the question of how far the courts can or should go in applying the rights to set aside decisions made by the other branches of government. In the cases that have been settled finally as of today, the courts in question have concluded that they have a certain right to intervene with other branches of government. In Urgenda, the Supreme Court of the Netherlands states that it is up to the legislative authority to decide how the emissions reductions are achieved, but that the courts are competent to decide whether the emissions reductions are sufficient compared to the obligations under the Paris Agreement.⁶⁶ The Irish Supreme Court acknowledged that although the Government’s national plan for greenhouse gas reductions was based on politics, the courts are obliged to consider whether the plan is in line with the legal framework.⁶⁷

If settled and ongoing actions are considered as a whole, we see that most human rights cases relate to general emission cuts and emissions targets, while the first Norwegian climate action stands out by relating to the validity of permits that potentially allow for future and specific emissions. This action may have more in common with the so-called Heathrow case in the UK, where Plan B Earth’s claim also failed because the climate effect of GHG emissions would be assessed at a later stage.

As for the rights, we see that the plaintiffs consistently argue that greenhouse gas emissions and subsequent climate change threaten the right to life and the right to privacy, family life and home. In some cases, the right to health, children’s rights and the right to property are also invoked. When it comes to Articles 2 and 8 of the ECHR, the argumentation mainly follows along the same lines as in Urgenda. We see the same tendencies in climate-related individual appeals before UN treaty bodies, where the corresponding rights under UN conventions on human rights have been applied by the appellants, as well as the human rights protection against return in the decision in the appeal against New Zealand.

One final general consideration is that over the last ten years there has been an increasing number of climate actions based on human rights. Prior to 2015, there had only been five climate actions globally based on human rights provisions.⁶⁸ Since then, there has been a large increase in climate actions based on human rights, based on both national, regional and international legal rules. As of March 2021, there were at least 1,550 climate change cases filed in 38 countries.⁶⁹ This increase has been referred to as the “human rights turn” in climate action.⁷⁰

One can expect that there will be more human rights climate actions as more and more cases are settled, and the content of existing human rights provisions are clarified from a climate perspective. This will contribute to a clarification of how the human rights framework can set boundaries on what both States and companies can legally do. For example, the UN High Commissioner for Human Rights, Michelle Bachelete, stated that the Urgenda verdict “provides a clear path forward for concerned individuals in Europe – and around the world to undertake climate litigation in order to protect human rights.”⁷¹ There is every reason to expect that this “human rights turn” in climate action will continue in the future.

Fotnoter:

¹United Nations Environment Program (UNEP), Global Climate Litigation Report: 2020 Status Review. Available on: https://www.unep.org/resources/report/global-climate-litigation-report-2020-status-review.
²Setzer and Byrnes (2020), Global trend in climate change litigation: 2020 snapshot, Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science.
³See e.g. Sunde and Colombo, "Look to Norway –Klimasøksmål i klimaendringane sin tidsperiode" in Energi og Klima, available on energiogklima.no (first published in Klassekampen on 26 September 2017).
⁴As far as international law is concerned, it essentially follows from the common principle of Article 38(1)(d) of the ICJ Statute, that court decisions – including national ones – are merely a subsidiary legal source. However, national court decisions may be relevant when deciding whether there is an international custom, see Article 38(1)(b).
⁵Case number ECLI:NL:HR:2019:2007, available in English on https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007. Information about the action is also available on https://www.urgenda.nl/en/themas/climate-case/.
⁶Case documents are only partially available. Unofficial English translation of the writ of summons is available on https://en.milieudefensie.nl/news/court-summons-translation.pdf.
⁷https://www.cliffordchance.com/insights/resources/blogs/business-and-human-rights-insights/climate-change-actions-against-corporations-milieudefensie-et-al-v-royal-dutch-shell-plc.html (last visited 19 March 2021).
⁸ Friends of the Irish Environment v. The Government of Ireland & Ors, [2020] IESC 49, 31 July 2020. The decision is available on https://www.courts.ie/view/judgments/681b8633-3f57-41b5-9362-8cbc8e7d9215/981c098a-462b-4a9a-9941-5d601903c9af/2020_IESC_49.pdf/pdf.
⁹ Friends of the Irish Environment CLG v. The Government of Ireland & Ors, [2019] IEHC 747, 19 September 2019. Available on https://www.courts.ie/view/judgments/20562a43-5bed-4524-9b60-e18ef35aae44/7454e3ee-eeca-40be-9c79-6c2e23d165e8/2019_IEHC_747.pdf/pdf.
¹⁰[2020] IESCDET 13, 13 February 2020. Available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200213_2017-No.-793-JR_na-1.pdf. http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200213_2017-No.-793-JR_na-1.pdfThe environmental organisations in the Norwegian climate action attempted to do the same after the district court's judgement, but the Supreme Court did not agree to this, see HR-2018-661-U.
¹¹Section 6.27 of the decision.
¹²Section 7.22 of the decision.
¹³See Sections 8.9-8.16 of the decision.
¹⁴Bundesgericht (BGs), Urteil vom. 5 Mai 2020 (1C_37/2019). The decision and other key documents in the case have been translated into English by the plaintiff organization and are available on www.klimaseniorinnen.ch/english/.
¹⁵See Section 5.1 of the decision.
¹⁶See in particular Section 5.3–5.4 of the decision.
¹⁷In Section 5.4 of the decision, the Court apparently concludes that there was no substantive violation of Articles 2 or 8 of the ECHR, and that the women procedurally do not have victim status under Article 34 of the ECHR.[17]
¹⁸See Chapter 2 of the report, written by CICERO on commission from NIM.
¹⁹Ibid.
²⁰Ibid.
²¹Ibid.
²²See Chapter 2 of the report, written by CICERO on behalf of NIM, where it emerges that the IPCC already considers the risk of heat-related illness and mortality as moderate at the current warming of one degree. The risk will increase to high by further heating.
²³The communication and questions to the parties are available at http://hudoc.echr.coe.int/eng?i=001-209313.
²⁴Case documents are only partially available. Information about the proceedings is available on https://www.klimaatzaak.eu/.
²⁵Case documents are not available. Read about the action on http://climatecasechart.com/non-us-case/greenpeace-v-austria/.
²⁶http://climatecasechart.com/non-us-case/greenpeace-v-austria/ (last visited 19 March 2021).
²⁷https://klimaklage.fridaysforfuture.at/ (last visited 22 March 2021).
²⁸Case number 2019-823 QPC of 31 January 2020. English translation is available on https://www.conseil-constitutionnel.fr/en/decision/2020/2019823QPC.htm.
²⁹See paragraphs 4 and 5 of the English translation.
³⁰See paragraphs 12 and 13 of the English translation.
³¹Case documents are not available, but a press release is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190123_Not-Yet-Available_press-release-1.pdf.
³²http://climatecasechart.com/non-us-case/commune-de-grande-synthe-v-france/ (last visited 19 March 2021).
³³Case documents are not available, but a press release is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190314_NA_press-release-1.pdf.
³⁴http://climatecasechart.com/non-us-case/notre-affaire-a-tous-and-others-v-france/ (last visited 19 March 2021).
³⁵The writ of summons is available in French on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200128_NA_complaint.pdf.
³⁶The appeal is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200902_12109_complaint.pdf.
³⁷The Court’s questions to the parties are available in French on http://hudoc.echr.coe.int/eng?i=001-206535.
³⁸UN Human Rights Committee, case number CCPR/C/127/D/2729/2016. The statement is available on https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/127/D/2728/2016&Lang=en.
³⁹The appeal is discussed in more detail in Chapter 8 of the report on climate displaced persons.
⁴⁰The appeal has not been made available, but a press release about the case is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2019/20190513_Not-Available_press-release-1.pdf. The case has been given appeal number 3624/2019.
⁴¹The appeal is available on https://childrenvsclimatecrisis.org/wp-content/uploads/2019/09/2019.09.23-CRC-communication-Sacchi-et-al-v.-Argentina-et-al-2.pdf.
⁴²According to information on the Committee's website, the appeal has been given case number 104/2019.
⁴³Carvalho and others v. the European Parliament and the Council of the European Union, ECLI:EU:C:2021:252.
⁴⁴The decision and other key documents in the case are available on https://planb.earth/plan-b-v-uk/.
⁴⁵[2020] EXCA Civ 214, 27 February 2020. The decision and other key documents in the case are available on https://planb.earth/plan-b-v-heathrow-expansion/.
⁴⁶Directive 2001/42/EC (Strategic Environmental Assessment Directive). According to Annex I, "environmental protection objectives" must be taken into consideration, which are established at the "international level", and the Paris Agreement is covered by this, paragraph 247.
⁴⁷Paragraph 238.
⁴⁸. Friends of the Earth Ltd v Heathrow Airport Ltd [2020] UKSC52. Available on: https://planb.earth/plan-b-v-heathrow-expansion/.
⁴⁹Ibid.
⁵⁰See https.//planb.earth/wp-content/uploads/2020/07/PAP-Letter-for-circulation.pdf and https://planb.earth/plan-b-v-heathrow-expansion/.
⁵¹See the letter from the organization on https://planb.earth/wp-content/uploads/2020/07/PAP-Letter-for-circulation.pdf.
⁵²See case documents on https://planb.earth/plan-b-v-government-bailouts-for-polluters/ (Last visited 23 March 2021).
⁵³See case documents on https://friendsoftheearth.uk/system-change/climate-litigation-briefing-friends-earth-vs-uk-export-finance (Last visited 23 March 2021).
⁵⁴Case VG 10 K 412.18.
⁵⁵The State must take measures that are not "gänzlich ungeeignet oder völlig unzugänglich" (page 23).
⁵⁶Pages 26–27 of the decision.
⁵⁷The writ of summons is available on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2018/20181122_Not-Available_complaint-1.pdf.
⁵⁸The writ of summons is available in German on http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20200206_11817_complaint-1.pdf.
⁵⁹Neubauer et al. v. Germany¸ BVerfG, Order of March 24th 2021 - 1 BvR 2656/18.
⁶⁰Case documents are not available. More information on the case available on https://www.clientearth.org/europes-largest-new-coal-power-plant-stopped/.
⁶¹Case documents are not available. More information on the case available on https://www.clientearth.org/were-challenging-europes-most-climate-damaging-power-plant/.
⁶²Ibid.
⁶³IESCET 13 February 2020, paragraphs 8 and 9.
⁶⁴Leijten, «Human Rights v. Insufficient Climate Action» (2019) in Netherlands Quarterly of Human Rights vol. 37 no. 2 on pp. 112-118.
⁶⁵See Chapter 5 of the report on the European Convention on Human Rights and climate.
⁶⁶Paragraphs 8.3.2–8.3.4 of the judgement.
⁶⁷Paragraph 6.27 of the judgement, in conjunction with paragraph 8.16
⁶⁸Setzer, Byrnes, ”Global trends in climate change litigation: 2020 snapshot" p. 14 ff. available on https://www.lse.ac.uk/granthaminstitute/.
⁶⁹United Nations Environment Program (UNEP), Global Climate Litigation Report: 2020 Status Review, p. 4.
⁷⁰Ibid.
⁷¹UN Human Rights, Office of the High Commissioner, News, “Bachelet welcomes top court’s landmark decision to protect human rights from climate change”, 20 December 2019.