Climate litigation series: Government climate policy in the limelight?
Alex Sharples and Helen Mitcheson discuss some recent cases brought against national governments and consider the impacts of these judgments.
Despite the challenges presented by the Covid 19 pandemic, as recent successful decisions make clear, climate change litigation is on the rise with a number of high profile judgments hitting the headlines over the past few months, and many more expected over the coming year.
On 27 May 2021, the federal court of Australia found that the environment minister had a duty of care to not act in a way that would cause future harm from climate change to younger people. Although the judgment did not go so far as to grant the injunction sought by the claimants (eight teenagers and an octogenarian) to prevent the approval of a proposed extension to a coalmine, it is significant as it is the first time that such a duty of care has been recognised.
On 29 April 2021, the Constitutional Court of Germany ruled that key parts of the country's climate legislation are insufficient, lacking detail on greenhouse gas (GHG) emission reduction targets beyond 2030. The court said that Germany's Climate Action Law is partly unconstitutional and obliged the German government to introduce details on GHG reduction targets beyond 2030 by 31 December 2022. In its ruling, the Court also made it clear that a violation of the state's obligation to protect the "natural foundations of life," which it said includes climate protection, could constitute a violation of the fundamental rights of citizens.
This is the third major ruling of this type in Europe over the last few years and follows both Urgenda v Netherlands and Friends of the Irish Environment v Government of Ireland.
In 2019, in Urgenda, the Netherlands Supreme Court upheld a ruling by a lower court that the Netherlands government should reduce GHG emissions by at least 25% by the end of 2020, compared to 1990 levels.
The figure of 25% derived from a report by the Intergovernmental Panel on Climate Change (IPCC) in 2007 that said that in order to limit global warming to a maximum of 2 degrees Celsius, developed countries, including the Netherlands would have to reduce their emissions in 2020 by 25% - 40% and in 2050 by 80% - 95% compared to their 1990 levels. That report had been expressly supported by the Netherlands itself.
The court found that the Netherlands, through its support for the IPCC had in fact committed to a 25% - 40% reduction and that that was binding on the government. They held that the State's policy of 20% was not meeting the requirements imposed on the state pursuant to Article 2 (the right to life) and Article 8 (the right to respect to private and family life) of the European Convention on Human Rights, which included a positive obligation to take reasonable and appropriate measures to protect individuals against possible serious damage to their environment.
The decision in Urgenda has implications for states who are signatories to the ECHR with litigation likely against states who are perceived to be not meeting their "fair share" obligations on climate change.
In July 2020, in Friends of the Irish Environment v Ireland, an advocacy group successfully argued on appeal that the Irish government's National Mitigation Plan in 2017 was unlawful on the basis that the plan did not contain enough detail to comply with the requirements of the Climate Action and Low Carbon Development Act 2015. Friends of the Irish Environment alleged that the plan, which seeks to transition to a low carbon economy by 2050, is inconsistent with the Act and Ireland's human rights commitments because it is not designed to achieve substantial short-term emissions reductions.
The Supreme Court held that the plan was required to be sufficiently specific for the whole transition period up to 2050 and, overturning a decision of the High Court, which had decided that the government had appropriately exercised policy-making discretion and the plan was only an initial step in the 2050 transition, ruled that the plan should be quashed. The Court explained that "a compliant plan must be sufficiently specific as to policy over the whole period to 2050".
Although Friends of the Irish Environment argued that the plan also violated the Constitution of Ireland and obligations under the ECHR, in particular, Articles 2 and 8, the Court determined that they lacked standing to bring such claims. The judgment has however, left it open for individuals to make human rights arguments in a climate change context under the Irish Constitution and ECHR.
In contrast, in December 2020 in R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd, the Supreme Court in England & Wales reversed the decision of the Court of Appeal which had held that the planned expansion of Heathrow Airport was unlawful due a failure by the UK Secretary of State for Transport to take the Paris Agreement into account when supporting Heathrow's planned expansion through its 2018 Airports National Policy Statement.
The Supreme Court held that the UK Government had taken proper account of the UK's climate change commitments and was not in breach of various provisions of the Planning Act 2008. In particular, it held that for section 5(8) of the Planning Act to operate effectively, the term "government policy" had to be given a "relatively narrow meaning so that the relevant policies can readily be identified" and that clear limits were required on what would constitute a policy. As the implementation of the Paris Agreement commitments were still in train, the UK's ratification of the Paris Agreement did not mean that it necessarily constituted "government policy" for the purposes of the Planning Act. Although this ruling initially appears to be a poor result for climate change, it is essentially a legalistic conclusion about which climate targets were relevant when the initial runway application was made. Nevertheless, the Court of Appeal's judgment could still have wide-reaching implications for major infrastructure projects in the UK, not least because the UK Government chose not to appeal the decision and when the project reaches the development consent stage, it will have to be considered against the targets and policies in force at that time.
The three continental cases discussed above are all successful claims against governments for failure to take climate action and there are a number of high profile pending claims which will likely be determined within the next twelve months. As pressure grows on governments to provide greater specificity as to their climate policies and how targets will be met, there is likely to be a significant tension between the desire of nations to drive economic growth and recovery following the Covid-19 pandemic and meet their climate change obligations. A primary example of this is the UK Government's recently announced North Sea Transition Agreement (discussed here). Much to the dissatisfaction of climate activists, this confirmed that future licensing rounds will, subject to a checkpoint system, continue to go ahead. The balancing act of seeking to meet climate change obligations whilst protecting jobs and the wider economic has never been more fraught.
Moreover, as the Heathrow case demonstrates, the increase in claims is not just against governments but also corporates in various industries (including those beyond the energy industry). While government decision-making may have been the focus of attack in the Heathrow case, the implications for infrastructure projects whose end product could ultimately lead to an increase in GHGs are clear in terms of the potential for delay and additional costs. In this series of articles we will consider how businesses can take these risks into consideration in their future planning.
The direction of travel is one way - climate change litigation will continue to grow as climate change activism continues to gain wider social traction and normalcy, coupled with the ever-continuing advances in climate science. In the United States, for example, over the last decade there has been significant growth in the number of claims against corporations for climate damage and with the growing understanding that climate risk could lead to financial risk, climate change litigation has also been brought against companies, directors, underwriters and pension funds for a failure to manage and/or disclose climate risk. This will be explored further later in this series.