European trends in climate litigation

Climate litigation, as a way of advancing a variety of strategic environmental aims, has increased over the past 30 years. These types of cases will inevitably increase as countries grapple with efforts to reduce emissions and manage their transition to a low carbon economy.

Climate litigation trends

There is a growing public consciousness of the impact of climate change. The Intergovernmental Panel on Climate Change report of August 2021, warning of a near inevitable, calamitous 1.5oC of warming in the next 20 years, has heightened this. The types of climate litigation being brought varies, but definite trends are emerging such as:

• Presenting climate change as a human rights issue, with the risks of climate change engaging Article 2 thin(right to life) and Article 8 (private and family life) of the European Convention on Human Rights [“ECHR”];
• States are being held to account by their own judiciary to take proper steps towards their stated climate action objectives, what was once seen as an area of policy exclusively within the remit of the legislature has become a focus of legal scrutiny;
• Nuisance claims, disclosure-related litigation, and challenges to development consents due to their climate impacts are increasingly being pursued against private corporations; and
• Claims of deceptive “greenwashing” marketing campaigns are being brought before courts and non-judicial bodies.

High profile climate wins in the Netherlands, Germany, and Belgium

In December 2019, the Supreme Court of the Netherlands ordered the Government to cut the nation’s greenhouse gas emissions by 25 per cent by the end of 2020 compared to 1990 levels. This was a historic judgment, as it was the first time a nation has been required by its courts to take action against climate change. The Dutch NGO, Urgenda, took the proceedings with nearly 900 co-plaintiffs, seeking significant reductions in Dutch greenhouse gas emissions. The Court rejected all of the State’s arguments, including the claim that emissions from the Netherlands were small (roughly around 0.4 per cent of global emissions) such that the impact of tightening its emissions reduction policies would just be a “drop in the ocean”. The Supreme Court determined that the State was required to do its “part” to counter the risk of climate change and to reduce emissions in line with its “fair share” of global emissions reductions.

Elsewhere in Europe, the German Federal Constitutional Court held that Germany’s Federal Climate Change Act was unconstitutional and incompatible with fundamental rights. The Court ordered the German legislature to amend the Climate Change Act by 31 December 2022 and to introduce more specific provisions on how to reduce carbon emissions. Similarly, Belgium’s mitigation policies were struck down in June 2021 as being insufficient to adequately address the effects of climate change. This was considered to be a violation of both the general duty of care recognised under Article 1382 of the Belgian Civil Code as well as Articles 2 and 8 of the ECHR. These decisions emphasised the consequences for future generations of failure to take action against climate change.

It is not just governments that have been forced to defend climate litigation. In May 2021, the Hague District Court ruled, in a claim brought against Royal Dutch Shell PLC (RDS), that RDS is obliged to reduce its carbon emissions by 45 per cent, compared to 2019 levels, by the end of 2030. The Court ruled that RDS has an unwritten duty of care to contribute to the prevention of dangerous climate change. This is the first time that a company has been held liable for reducing emissions in line with the Paris Agreement. This is under appeal.

“It is not just governments that have been forced to defend climate litigation. In May 2021, the Hague District Court ruled, in a claim brought against Royal Dutch Shell PLC, that RDS is obliged to reduce its carbon emissions by 45 per cent, compared to 2019 levels, by the end of 2030.”

Climate litigation in Ireland

Two recent Irish Supreme Court decisions reflect the benefits, but also the limitations, of such challenges. In June 2020, Friends of the Irish Environment (FIE) successfully challenged Ireland’s National Mitigation Plan in a case known as Climate Case Ireland, for its failure to ensure that Ireland met its “national transition objective” of a low carbon and environmentally resilient future, as required under the Climate Action and Low Carbon Development Act 2015. The Supreme Court ruled in favour of FIE and quashed the Plan, owing to its lack of specificity.

In the second case, An Taisce challenged the grant of a planning permission to construct a €140 million cheese factory in Kilkenny. This was primarily on the basis that the environmental assessment failed to assess the wider indirect environmental consequences which would arise from the construction of this factory i.e., expansion of the national herd, which would in turn lead to enhanced methane and other greenhouse gas emissions. In February 2022, the Supreme Court disagreed with the High Court, expressing concern about artificially expanding the remit of environmental assessment legislation. It concluded that generally speaking (and there could be narrow exceptions to this), indirect environmental impacts arising from inputs or outputs (like milk production or plastic wrapping on cheese) did not require to be assessed.

Conclusion

Climate litigation places courts in a challenging position, where they are often forced to confront contentious policy issues, navigate difficulties in dealing with scientific evidence and the limitations of certain environmental assessments, and strike an appropriate balance in their role under the separation of powers. Given the urgent need to reduce emissions, and the growing volume of climate legislation and plans at both an EU and Irish level, this trend of novel and creative climate challenges is only likely to grow.

Alison Fanagan
Consultant, A&L Goodbody
E: afanagan@algoodbody.com

Alan Roberts
Partner, A&L Goodbody
E: aroberts@algoodbody.com

Mark Thuillier
Associate, A&L Goodbody
E: mthuillier@algoodbody.com