Climate change litigation in Europe (and beyond) has been inspired by the Dutch Urgenda-case, in which the Dutch government was ordered to reach an emission reduction target of 25% by the end of 2020, compared to the 1990 emission levels. State liability for climate change inaction was based on articles 2 and 8 ECHR and the reduction target of 25% was derived from international standards and scientific research, including the reports of the Intergovernmental Panel on Climate Change (IPCC). In the aftermath of Urgenda, climate change litigation became a useful asset in establishing government accountability for climate change inaction. Last year alone, we’ve seen ‘successful’ climate change actions against the governments of France, Belgium, and Germany. This blog post provides a comparative analysis of these cases and the Urgenda-case. Which climate change litigation trends can be distinguished?
The French government was brought to court in two different climate change actions last year. The first case is known as Grande Synthe, named after the coastal municipality that initiated the case. The second case became known as l’affaire du siècle: the case of the century. I will discuss both shortly.
The municipality of Grande Synthe (and several associations) asked the Conseil d’État, the highest administrative court in France, to annul the government’s refusal to take additional measures to reach a reduction target of 40% by 2030, compared to the level of 1990. Two judgments need to be distinguished. In its initial decision of November 2020, the court established a breach with the first carbon budget (2015-2018) France had set for itself. Nevertheless, the government was given three months to provide evidence that additional measures would not be necessary to reach the reduction target of 40% by 2030. In the second judgment of July 2021, the court notes that emission reductions remained limited in 2019 and were largely due to the effects of the corona crisis in 2020. Accordingly, the reduction target for the second carbon budget (2019-2023) is deemed unachievable, unless new measures are adopted in the short term. The Conseil d’État orders the government to take all appropriate measures to achieve the reduction target of 40% by 2030. It remains for the government to decide which specific measures should be taken.
L’affaire du siècle
‘The case of the century’ was brought before the Parisian court of first instance by several climate associations. The applicants asked for governmental compensation for moral and ecological damages and for the government to be ordered to take all necessary measures to reduce greenhouse gas emissions to a level compatible with international agreements. This case resulted in two judgments. In a judgment of February 2021, the court decided that the government had committed a tort by not adhering to its reduction paths (in particular: the first carbon budget). This decision was based on article 1246 Code Civil, stating that every person responsible for ecological damage, is obliged to compensate for that damage. The government is ordered to pay a symbolic compensation of one euro for moral damages. Concerning compensation for ecological damage, further investigation has been ordered. In a subsequent judgment of October 2021, the court starts by stating that it is not up to this court to decide whether government measures are capable of reaching a reduction target of 40% by 2030 (the court’s press release clarifies that this question was already answered by the Conseil d’État in its Grande Synthe ruling). It is, however, for the court to decide whether the ecological damage coming from a breach of the first carbon budget is still present or whether it has already been compensated for. The court notes that the substantial decrease of greenhouse gas emissions in 2020 (although mainly a result of the corona crisis) caused a partial compensation of ecological damages. The remaining damage of 15 Mt CO2eq (15 Megaton CO2 and other anthropogenic greenhouse gases) remains to be compensated, however. The government must take all necessary measures to repair this damage before the end of 2022. Again, it is for the government to decide which specific measures need to be taken.
After a timely procedure (initiated in 2015), the French-speaking tribunal of first instance in Brussels finally delivered judgment in the climate case initiated last June by an association called ‘Klimaatzaak’. Although the court establishes a breach with the government’s duty of care, just like the Dutch court did in the Urgenda-case, it refuses to specify which reduction target the Belgian governments should pursue. In rejecting the requested order (a reduction target of 55% by 2020, compared to the 1990 level), the court refers to the separation of powers principle. According to the court, a specific reduction order cannot be based on scientific reports, as was requested by the applicants. Since national and international law does not oblige the Belgian government to reduce its amount of greenhouse gas emissions to the requested level, it remains for the government to decide which reduction targets need to be set. Hence, the court finds itself without jurisdiction to substitute its own judgement for the government’s discretionary power. Consequently, there is a striking contrast with the Urgenda-case, in which the court did impose a specific court order on the government, which was also derived from scientific reports (the IPCC reports). According to the Dutch court, the court order did not go against the separation of powers principle, as it remained for the government to decide by which means the court order was implemented. Needless to say, that difference can presumably be partially explained by a different perception of the separation of powers principle in both jurisdictions. Since the court does go into detail on why a reduction order would infringe the separation of powers principle in this case, we might have to await a higher appeal judgement in order to get more clarification on this matter.
In Germany, climate change litigation took the form of a constitutional procedure at the Bundesverfassungsgericht. Several associations filed constitutional complaints against the government, stating that the Federal Climate Change Act is incompatible with fundamental rights. The court notes that Germany’s reduction targets, as specified in the Federal Climate Change Act, are not incompatible with article 20a Grundgesetz (GG), which encompasses an obligation to take climate change action, according to the Bundesverfassungsgericht. This observation is remarkable, as the court also notes that these reduction targets will presumably cause exhaustion of the remaining CO2 budget for Germany (as calculated by the IPCC) in 2030, which of course is not a promising prospect. However, the court considers the IPCC calculations to be surrounded by assumptions and uncertainties, resulting in a certain amount of discretionary power for the government. In applying the reduction targets in the Federal Climate Change Act, the government is not abusing that discretion. Accordingly, the Bundesverfassungsgericht refuses to impose any specific reduction target on the government that is based on scientific reports instead of law, in a similar manner as the Belgian court did. That’s however not the end of the story. The constitutional court continues by noting that the reduction targets in the Federal Climate Change Act do not satisfy the principle of proportionality arising from article 20a GG, since the Federal Climate Change Act does not sufficiently elaborate on which reduction efforts are needed after 2030. As these reduction efforts are likely to be considerable, it is required that annual reduction measures for the post-2030 period are defined in such detail that sufficient orientation is provided for future generations. The reduction efforts for the post-2030 period need to be managed in a way that does not infringe the fundamental rights of future generations. The court orders the legislator to set reduction targets for the post-2030 period or to provide the relevant executive authority with detailed instructions for setting these targets before the end of 2022.
Climate litigation trends?
To a certain extent, none of the above-mentioned judgments was as far-reaching as the Urgenda-judgment. In Urgenda, the court ordered a specific reduction target of 25%, which had no direct legal basis in national or international law but was derived from international standards and scientific research, such as the IPCC reports. The Belgian and German courts refused to adopt such a line of reasoning, by referring to the separation of powers principle and the discretionary power of the government. As scientific reports are not considered to be legally enforceable, but to be surrounded by assumptions and uncertainties, it remains for the government to decide which reduction target is pursued. The separation of powers principle was less of an issue in the French cases, as the court was not requested to impose any other reduction target on the government than the one already in the law. The courts solely established a breach with the reduction targets the government had set for itself in national law. Besides, France has a very different perception of the separation of powers principle, as judicial injunctions to the government are very common (as was explained in this recording).
In another respect, the French l’affaire du siècle case and the German case were also more far-reaching than the Urgenda case. The Bundesverfassungsgericht introduced an obligation for governments to consider the fundamental rights of future generations in climate change policy. Reduction paths should be clearly defined and extended far enough into the future, to ensure that the fundamental rights of future generations will not be infringed by a heavy reduction burden. Such an explicit consideration of the fundamental rights of future generations is a novelty in climate change litigation. The French l’affaire du siècle case, on the other hand, introduced the idea of compensation for the ecological damage already suffered. While climate change actions (including the Urgenda-case) have so far focused on setting adequate reduction targets for the future, the French government was ordered to compensate for ecological damage already suffered in the past. I am curious to find out whether the German and French lines of reasoning will become trending in future climate change actions and whether new lines of reasoning will be developed. Presumably, the biggest flood is yet to come.
Posted by Laurien Nijenhuis.
Laurien Nijenhuis is a tutor at the University of Amsterdam.
Suggested citation: L. Nijenhuis,”Climate change litigation in Europe”, REALaw.blog, available at https://realaw.blog/?p=890.