- Climate Protection Litigation
With the rising public awareness of the looming imminent impacts of climate change, a new breed of climate protection litigation was brought to courts on the national and international level which aim to force States to meet the max. 1.5 respective 2.0 °C of global warming targets set forth in the Paris Agreement by a greater mitigation of greenhouse gas emissions. In the following, a selection of the most important proceedings – some of them are still pending – ought to be introduced and the specific challenges of those lawsuits for their standing and success to be outlined.
One of the most groundbreaking successes of climate protection litigation is marked by the judgment of Supreme Court De Hoge Raad of the Netherlands from December 2019. The Urgenda Foundation and 886 Dutch citizens sued the Dutch Government for failing to adopt adequate measures to address climate change. The Hague District Court ordered the State to mitigate greenhouse gas emissions by 25 percent by 2020. The decision was upheld by the Supreme Court, De Hoge Raad, of the Netherlands. The Hague District Court had found that the Dutch Government violated its duty of care stemming from the right to life of Art. 2 of the European Convention on the Protection of Human Rights (ECHR) and the right to respect for private and family life of Art. 8 ECHR, stating that it was an established fact that the negative consequences are currently being experienced in the Netherlands, such as heavy precipitation, […]”¹ and that those consequences were a “real and immediate risk to persons”.²
¹ Urgenda Foundation v. The Netherlands (Ministry of Infrastructure and the Environment)  C/09/456689/HA ZA 13-1396 (Hague District Court), para. 4.89. An English translation of hte judgement can be found at ‘Rechtspraak’,https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2019:2007, last accessed on 30 August 2021.
² Urgenda, Supreme Court Decision, para. 4.2.
Most recently the German Federal Constitutional Court (Bundesverfassungsgericht) upheld partially the constitutional complaints concerning climate protection releasing its decision on 29 April 2021. The Court found that the legislator adopted measures for greenhouse gas emission mitigation until 2030 have an intervention-like prior effect in the fundamental freedoms of the German Basic Law, as they cause inadequate risks of future impairments of fundamental rights; Due to the less ambitious mitigations measures in effect until 2030 the German legislator would have to enact from 2030 onwards much more concerted efforts to meet the target of climate neutrality by 2050. The Federal Constitutional Court states that the fundamental freedoms of the German Basic Law ensure the intertemporal protection of freedoms whose realization still lies in the future and hence concerning notably the freedoms of children and future generations. In contrast, the Court denied a violation of the duty to protect stemming from Art. 2 para. 2 S. 1 German Basic Law and Art. 14 para. 1 German Basic Law, awarding a wide margin of appreciation to the legislator to determine the concept for greenhouse gas emissions mitigation. Moreover, notwithstanding the fact that the German State is bound by the fundamental rights of the German Basic Law as regards to people living outside the territory of jurisdiction of the German State, the Court emphasised in its Decision that the duty to protect stemming from fundamental rights needs to be modified and differentiated toward people living abroad. Thus the complaints filed by people from Nepal and Bangladesh were dismissed.
These two decisions of the Supreme Court De Hoge Raad of the Netherlands and the German Federal Constitutional Court raise hope and expectations for the proceedings pending before the European Court of Human Rights in Strasburg. Six Portuguese Youth brought the complaint before the Court, holding that 33 European States violate their right to life, Art. 2 ECHR, and right to respect private and family life, Art. 8 ECHR, by failing to enact the adequate climate protection policies. By their legal action the complainants pursue the target that the defending States are being forced to adopt more ambitious efforts to mitigate greenhouse gas emissions.
Similarly, on the universal level of human rights protection a communication brought by sixteen children, including Greta Thunberg, is pending before the United Nations Committee on the Rights of a Child. The petitioners assert that Member States’ failure to tackle the climate crisis constitutes a violation of children’s rights, urging the Committee to order Member States to take actions for the protection of children and future generations from the devastating impacts of climate change.
The United Nations Committee on Human Rights revealed a new aspect of its jurisdiction on the prohibition of non-refoulment. The complainant asserted a violation of his right to life in case of his expulsion to the island State Kiribati by New Zealand, as Kiribati is exposed to sink into the pacific ocean caused by the sea level rise due to climate change. Notwithstanding the fact that the Commission dismissed the communication F.A.J. and B.M.R.A. v. Spain³ in 2020, arguing that until the realization of the risk in ten to fifteen years enough time is left to adopt adaptation measures which may impede the sinking of Kiribati in the sea, the Committee accepts that the projected risks caused by climate change, such as the sinking of an island state to the sea, is in principle suitable to trigger the prohibition of non-refoulment.
³ UNCHR, F.A.J. and B.M.R.A. v. Spain,CCPR/C/130/D/3599/2019, 28 October 2020.
By contrary to the above-illustrated complaints, other lawsuits pledging the violation of rights by the State’s failure to tackle the climate crisis, had no standing before Courts. Notably, the Federal Administrative Court of Switzerland dismissed the lawsuit filed by elderly women particularly vulnerable to the health hazards posed by climate change as an inadmissible actio popularis, arguing that the plaintiffs were not sufficiently directly individually affected by climate change to be entitled to demand state action. After the dismissal of the appeal by the Swiss Supreme Court on 26 November 2020 the senior women addressed the European Court of Human Rights. The ECtHR communicated the complaint to the Swiss Government to submit a response by 16 July 2021. The application is still pending.
Moreover, in 2018 ten families from the EU and outside of Europe brought a lawsuit under Art. 263 para. 4 of the Treaty of the Functioning of the European Union (TFEU) before the European Court of Justice, arguing that the EU reduction targets were violating duties of care stemming from the fundamental rights enshrined in the EU Charter of Fundamental Rights and the EU Treaties. The lawsuit had no standing, as the Court applied the very narrower interpretation of ‘individual concern’ in Art. 263 para. 4 TFEU which was once established by the European Court of Justice in the 1963 Plaumann case. The European Court of Justice dismissed the appeal on 25 March 2021 on the same grounds.
However, these assumed lacks of standing before the Courts raise serious issues of the right to an effective remedy against the violation of fundamental rights guaranteed by Art. 47 of the EU Charter of Fundamental Rights as well as by Art. 13 of the European Convention on Human Rights, which entail that a person must have access to a court and be heard on the merits of the case if a plaintiff shows that a State act or omission inflicts concrete harm on his or her fundamental rights.