24 February 2021
In recent months the EU, the UK, China and five other countries* have announced more ambitious commitments for cutting their greenhouse gas emissions. But even if made good, current pledges would not meet the globally agreed aim of holding warming well below 2°C, and pursuing efforts to limit warming to 1.5°C. Activists and others are now bringing rights-based climate cases in an effort to force countries and regions to be more ambitious.
Paris Agreement: NDCs
The 2015 Paris Agreement is a legally binding international treaty on climate change. Its goal is to limit global warming to well below 2, preferably to 1.5 degrees Celsius, compared to pre-industrial levels. Signatory countries are to make Nationally Determined Contributions (NDCs) – the efforts they promise to make to reduce national emissions and adapt to the impacts of climate change – and update these every five years, beginning in 2020. The idea is that these NDCs should become progressively more ambitious over time.
Climate Action Tracker ("CAT") monitors various countries representing around 80% of global emissions and 70% of the world's population. It assesses what steps each country should be taking in order to limit global warming to below 2 degrees and below 1.5 degrees, and rates their current policies and their promises (including NDCs) to 2030 against those benchmarks. The UK's first NDC promised emissions cuts of 57% from 1990 levels by 2030, and this was rated as "insufficient" by CAT – compatible with up to 3 degrees of warming. In its December 2020 revised NDC the UK strengthened this promise to 68% and CAT stated "this development would make the UK one of the first countries globally to bring its domestic emissions into line with what would be necessary globally for the Paris Agreement’s 1.5°C limit". A few days later the EU strengthened its NDC from "at least 40%" (rated as "severely inadequate" by CAT) to "at least 55%". This new promise is rated as "insufficient", and CAT called for a reduction of 65% by 2030 in order for the EU to become the first region to be in line with the Paris Agreement.
For example, the German Federal Government (Bundesregierung) has set out its national climate targets in a binding way in a Climate Protection Act entered into force on 18 December 2019. The Climate Protection Act provides for a gradual reduction in greenhouse gas emissions compared with 1990 levels, with at least a 55 percent reduction target by the year 2030. In the long term, the Federal Government is pursuing the goal of greenhouse gas neutrality by 2050.
Human rights cases
The substantial gap between current and proposed emissions reductions and what is called for under the Paris Agreement has prompted a number of legal actions around the world, including in the EU, inviting courts to order governments to adopt more ambitious climate policies. Many of these are framed in terms of violations of citizens' human rights. The most prominent to date is the Urgenda case against the Dutch government. In December 2019 the Dutch Supreme Court upheld all lower court rulings in the case and ordered the government to cut emissions by 25% from 1990 levels by the end of 2020, instead of the 21% promised (the government complied, largely by severely cutting capacity in its remaining coal-fired power stations). The Supreme Court based its judgment on the obligation of the State to protect its residents’ right to life (Article 2 of the European Convention on Human Rights – ECHR) and right to family and private life (Article 8 ECHR).
In July 2020, in a partial victory for Friends of the Irish Environment, the Irish Supreme Court quashed the government's National Mitigation Plan on the basis that it was not specific enough about the steps that would be taken in the short and medium term to achieve the goal of a low-carbon economy by 2020: again, this was by reference to the ECHR. Courts in the UK have rejected challenges; other cases are pending in Belgium, France, Sweden and Switzerland.
At the beginning of 2020, several cases have been brought to the German Constitutional Court claiming that the German Government with the Climate Protection Act missed to implement the necessary emissions reductions and only implemented insufficient climate protection targets and measures. As a result, the State breached, amongst others, its obligation to protect the constitutional right of human dignity and the right to life and physical integrity, as well as – with regard to ECHR – its residents’ right to life (Article ECHR) and right to family and private life (Article 8 ECHR). However, the outcome of the current cases is hardly predictable. One of the pending constitutional complaints has meanwhile been forwarded to the Bundestag, the Bundesrat, the Chancellor's Office, the Federal Ministry of the Interior and the Ministry of Justice, as well as to all state governments for further comments, which is an important first step in order for the court to potentially accept the complaint.
Some activists are concerned that national courts are not yet willing to order the deep emissions cuts that would be compatible with keeping warming below 1.5 degrees. For example, even after the emissions reduction ordered in Urgenda (25% by the end of 2020 instead of 21%) the Netherlands is not on track to meet CAT's recommended reduction of 65% by 2030. And the figure of 25% was chosen because it was at the bottom of the range of 25-40% reductions proposed by developed countries at that stage; the court declined to order the government to be more ambitious.
Portuguese Youths case in ECtHR
The Urgenda ruling was an important driver behind a case commenced in the European Court of Human Rights (ECtHR) in September 2020. Six Portuguese youths have brought the case against all 33 members of the ECHR – the EU27 plus the UK, Russia, Switzerland, Norway, Turkey and Ukraine. As in the Urgenda case, the applicants allege that by failing to take sufficient climate action, the states have breached Articles 2 and 8 of ECHR, which establish the right to life and the right to family and private life. But in addition, they allege that the states have discriminated against youth, breaching Article 14 of the ECHR, as climate change will impact youth more than older generations: “There is no objective and reasonable justification for shifting the burden of climate change onto younger generations by adopting inadequate mitigation measures”. The applicants seek an order requiring each of the 33 states to adopt more ambitious climate action in line with its "fair share" of the global reductions needed in order to keep warming below 1.5 degrees.
Those seeking to enforce their human rights would usually be expected to seek redress in their national courts, which might then refer the matter to the ECtHR. The applicants invited the ECtHR to apply an exception to this rule, which applies where there is no adequate remedy that is reasonably available to the individual concerned. This was partly due to the challenge of mounting proceedings in 33 national courts. But they also seek an order for more ambitious collective climate action across Europe, which would be much harder to achieve in separate national proceedings. If the ECtHR were to rule in their favour then the applicants would seek to enforce the judgment through the national courts.
On 30 November the ECtHR decided that the case is admissible, which is highly significant in itself (few "direct" applications are accepted). The court also granted the complaint priority on the basis of the “importance and urgency of the issues raised”. The 33 states now have to file their defences by the end of February 2021. Strikingly, one of the questions sent by the court to the parties was whether the applicants’ right under Article 3 of EHCR was being violated. Article 3 states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
Conclusion
Rights-based climate cases are a relatively new phenomenon: in 2015, when Urgenda started their action, there had only been five in total around the world; there are now over 60. This is now a fast-developing field and the Portuguese Youths case is easily the most ambitious to date. Will courts actually order countries to make the deep cuts in emissions needed to avert catastrophic warming? This could become more likely if other countries follow the UK’s lead by promising reductions that put them on track for Net Zero by 2050.
*Argentina, Chile, Kenya, Norway and Ukraine
For further information, please contact:
Nigel Brook, Partner, Clyde & Co
nigel.brook@clydeco.com
