The Global Trend of Increasing Climate Risk Litigation
30 June 2021 | 5 min read ⧖
There is an increasing trend of litigating the requirement for governments to implement appropriate emission reduction targets. Cases have been brought to enforce the targets in light of commitments made under the Paris Agreement. Litigation is also undertaken to ensure the protection of human rights through the adequate protection of the environment.
Climate Litigation in Europe
Environmental groups have successfully brought cases in the Netherlands, France and Germany to establish that climate legislation hasn’t gone far enough to protect citizens fundamental rights to life and human dignity.
Actions brought against governments have been brought where there has been a failure to put in place sufficient climate change reduction targets. These appear to be brought primarily on two grounds:
failure to adhere to the nationally determined contributions committed to under the Paris Agreement, and
failure to reduce the risk of dangerous climate change which will infringe human rights
The Urgenda Climate Case was a ground-breaking case in this arena in Europe. The Dutch Supreme Court upheld on 20 December 2019 a lower court’s decision finding that the Dutch government had a legal duty to prevent dangerous climate change. The ruling required the government to cut its greenhouse gases (GHGs) by at least 25% by the end of 2020, compared to 1990 emission levels. After this case, the UN High Commissioner for Human Rights commented that this decision confirms that governments have binding legal obligations based on human rights law to undertake strong reductions in GHG emissions.
Following this case, a wide range of climate litigation was inspired including cases brought in France and Germany. On 3 February 2021, a French court found that the government’s failure to reduce GHG emissions in line with its targets is unlawful as it contributes to dangerous climate change causing environmental harm in France.
In Germany, in the case Neubauer, et al. v. Germany, a legal challenge was filed in respect of Germany’s Federal Climate Protection Act, the Bundesklimaschutzgesetz (KSG). It was argued that the KSG's target of reducing GHGs by 55% by 2030 from 1990 levels was insufficient. On 29 April 2021, the German Federal Constitutional Court found the KSG failed to set out sufficient provisions for emission cuts beyond 2030. Therefore, it held the KSG to be incompatible with fundamental rights as protected by the German constitution. Article 1 of the Basic Law, the German constitution, enshrining human dignity, Article 2 protecting the right to life and physical integrity and Article 20a enshrining responsibility towards future generations were referenced in this case. The Court found that the carbon budget was not proportionally distributed between current and future generations. After this case, the legislature is required to set clear provisions for reducing targets from 2031 onward.
Climate Litigation Worldwide
Further successful cases were brought against the Colombian government. It was argued that the government’s failure to reduce deforestation and meet the 2020 zero-net Amazon deforestation target threatened the Colombian citizens fundamental rights, including a right to a healthy environment.
A further climate case was successful in New Zealand in 2017. The New Zealand Minister for Climate Change was found to be acting unlawfully by failing to consider whether to review the country’s climate change targets for 2050 after the publication of the most recent IPCC Assessment Report. Successful cases were also brought against the governments of Nepal and Pakistan on a basis of the protection of constitutional rights and, in the case of Nepal, not meeting the commitments made under the Paris Agreement.
The global trend shows that the reduction of GHGs are being legally upheld. This is mainly done through citizens claiming that insufficient reductions are being conducted in light of countries’ commitments stemming from the Paris Agreement and the human rights of the citizens themselves requiring protection.
Climate Litigation in Ireland
In a recent Irish Supreme Court case, the National Mitigation Plan was quashed as it was non-compliant with the Climate Action and Low Carbon Development Act, 2015 (“2015 Act”). The “climate case” element was successful on a more technical groundAs the applicant did not itself have personal rights as the applicant is a corporate entity who could not enjoy the right to life or bodily integrity, the applicant was deemed not to have legal standing to argue the constitutional rights aspect of the case. The Court found no exception applied where a third party,including a corporate body, may have legal standing to maintain a claim based on the rights of others.
The Court accepted that there may be circumstances where an entity might not have legal standing to bring a complaint before the European Court of Human Rights (ECtHR) but, in accordance with Irish standing rules may be able to maintain a claim under the European Convention on Human Rights Act 2003. However, this did not apply here. This case also referenced the Urgenda case, although the Court found that this case was decided on particular aspects of Dutch law and so could not be followed. This Irish case demonstrates the increased scrutiny by the public to ensure government decisions in general accord with the commitments made under the Paris Agreement
As seen in these cases, there is an increasing trend of successful climate litigation cases. Public bodies should be aware of this increasing risk of climate litigation if a potential applicant deems that not enough is being done in relation to the Paris Agreement goals.
Relevant bodies and the Climate Action and Low Carbon Development (Amendment) Bill 2021
Under section 15 of the 2015 Act, “relevant bodies” are required to have regard, in the performance of its functions to certain plans. A body is described as “relevant body” under the 2015 Act if they come under the definition of a public or prescribed body in accordance with the Freedom of Information Act 2014. Under the current 2015 Act, a relevant body shall in these circumstances have regard to:
(a) the most recent approved national mitigation plan
(b) the most recent approved national adaptation framework and approved sectoral adaptation plans
(c) the furtherance of the national transition objective, and
(d) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State
The recent Climate Action and Low Carbon Development (Amendment) Bill 2021 provides changes to this section. Once enacted, relevant bodies will, in so far as practicable, perform its functions in a manner consistent with—
(a) the most recent approved climate action plan
(b) the most recent approved national long-term climate action strategy
(c) the most recent approved national adaptation framework and approved sectoral adaptation plans
(d) the furtherance of the national climate objective, and
(e) the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State
Therefore, a relevant body needs to ensure that they are compliant with these plans, strategies and objectives in the performance of their functions. There will therefore be an increased opportunity to litigate when potential applicants deem the relevant body is not compliant with the strategies listed above. While, under the 2015 Act, the relevant body shall “have regard to” these strategies. Under the 2021 Bill, the relevant bodies must, “in so far as practicable” perform its functions in a manner consistent with the above strategies. It will remain to be seen how the Courts interpret this element of discretion of the relevant bodies.
Recent global trends show an increase in climate litigation. In these cases, citizens are holding their governments to account and enforcing their commitments under the Paris Agreement. This is being undertaken in a variety of ways, including the enforcement of human rights. This trend could have an impact on public bodies and private entities. For public bodies, this will become even more relevant once the Climate Action and Low Carbon Development (Amendment) Bill, 2021, commences. It will likely increase the risk of climate litigation.