By Matthias Petel and Antoine De Spiegeleir *

VZW Klimaatzaak v. Kingdom of Belgium & Others is a climate lawsuit brought in Belgium in 2015 modelled on the famous Dutch Urgenda case. In this groundbreaking judicial procedure, plaintiffs argued that Belgian public authorities have undertaken insufficient climate action and called for its enhancement. On June 17, 2021, the Tribunal of First Instance of Brussels rendered its decision in partial favor of the plaintiffs (see unofficial English translation here). The decision consolidates a climate “duty of care” for public authorities and illustrates the enduring obstacle of separation of powers in judicial review. In this commentary, we recall the background of the case, provide context to the Tribunal’s decision, and shed light on the case’s takeaways for global climate litigation.

  1. Facts, procedure, judgment

In 2015, the NGO Klimaatzaak and thousands of concerned citizens as co-plaintiffs initiated a judicial procedure against four Belgian governments—the federal government and the regional governments of Wallonia, Brussels, and Flanders—before the Tribunal of First Instance of Brussels. Klimaatzaak argued that the defendants jointly breached their general duty to act as “prudent” and “diligent” authorities in violation of Articles 1382 and 1383 of the Belgian Civil Code (BCC), as well Articles 2 and 8 of the European Convention on Human Rights (ECHR) and Articles 6 and 24 of the Convention on the Rights of the Child (CRC), by failing to adopt strong mitigation and adaptation measures (see a summary of legal arguments here). To redress this violation, Klimaatzaak asked the Tribunal to set specific—and legally binding—emission reduction targets of 48% in 2025 and 65% in 2030 compared to 1990 levels, achieving net zero emissions by 2050.

Articles 1382 and 1383 provide the foundation of civil liability in Belgium. They establish a duty to repair any harm caused by an individual or entity under three cumulative conditions: (i) wrongdoing (either an action or omission), (ii) harm, and (iii) a causal relationship between the wrongdoing and the harm. Articles 2 and 8 of the ECHR encompass the right to life and the right to a private and family life, while Articles 6 and 24 of the CRC establish the child’s right to life and to “the highest attainable standard of health.”

In its decision, the Tribunal found that it had jurisdiction to hear the case and that Klimaatzaak had standing under Articles 17 and 18 of the Belgian Judicial Code read in light of Article 9(3) of the Aarhus Convention. The Tribunal’s use of Aarhus to broadly interpret standing is a promising development for climate litigation in other States parties to this Convention. Ensuring broad participation, it also granted standing to all 60.000 individual citizens, despite procedural limitations in the Belgium judicial system to actio popularisi.e., a case initiated by individuals to defend a matter of general interest, which requires proof of a personal, direct and real interest. Given the broad effects of climate change, the Tribunal considered all citizens personally impacted.

On the substance, the Tribunal found in (partial) favor of the plaintiffs. It considered that, facing the growing scientific consensus on climate change, the governments had failed to act with sufficient prudence and diligence in breach of their “duty of care.” This breach results from: (i) mixed results in reducing greenhouse gas emissions, (ii) repeated warnings from the European Union since 2011 pointing out that Belgium was lagging behind in climate objectives, and (iii) the lack of effective climate governance. Recognizing the high level of complexity in the coordinated exercise of governmental competencies for climate action, the Tribunal noted that coordination between the federal and regional entities is required. The Tribunal also found that the defendants have breached the plaintiffs’ fundamental rights under the ECHR without elaborating on the implications of this violation, which in our eyes is a troublesome and enigmatic omission, as we will further detail below. Conversely, the CRC was set aside, as the Tribunal considered it does not generate positive obligations for the State, stressing that the broad wording of this Convention leaves a complete discretion to the signatory States as to how they intend to give effect to it.

2. Lessons: the remaining relevance of the separation of powers and the ambiguous role of human rights in the decision

Despite the recognition of a breach of a duty of care, the Tribunal refused to set specific binding targets as doing so would go beyond the judiciary’s prerogatives, trespassing on the discretionary power of the legislative and executive branch, and ultimately, flouting the separation of powers. The issue of the separation of powers in climate litigation has been interpreted in contrasting fashions by national judges. In Urgenda, the Dutch courts considered that the unusual political consequences of their decisions should not prevent them from providing an effective remedy to the violation of citizens’ fundamental rights. This contrasts with the Juliana case, in which the majority in the U.S.’s Ninth Circuit Court of Appeals dismissed the plaintiffs’ complaint on the grounds that the judiciary does not have the authority to grant the specific relief sought – a national program for climate drawdown. Despite those various conceptions of the separation of powers, there seems to be a growing consensus in favor of the justiciability of climate change against public authorities as exemplified by victories obtained in Colombia, Pakistan, Germany, and France, among others.

The Tribunal chose a surprising third path. At the heart of the debate on whether courts can set specific emission reduction targets lies an inherent tension between two lines of argument brought forward by the plaintiffs. On the one hand, a government’s lack of strong climate change policies is contrary to its duties under international, European, and even domestic instruments. With the rise of climate law, national governments contracted legal obligations to mitigate climate change. This argument, followed by the Tribunal, is based on a traditional approach to a State’s duty to “uphold its promises.” The Tribunal repeatedly stressed that Belgian authorities did not respect their own objectives, a failure which the European Commission itself pointed out on several occasions.

On the other hand, climate action is not only required because authorities have committed to it. Instead, effective climate mitigation is also a matter of fundamental rights. This approach is gaining momentum worldwide: scholars have observed a “rights turn” in climate litigation across various jurisdictions. Using this lens, the judiciary is not bound to apply merely the legally binding objectives adopted by authorities. It may also enhance targets in light of the scientific consensus based on fundamental rights’ protection. Alternatively, scientific evidence influences the creative interpretation given to traditional civil liability notions, such as the determination of the existence of a wrongdoing, a harm, and a causal link, to “update” these notions in the face of the emergence of new climate risks.

The fundamental question is: should authorities only respect objectives to which they have explicitly committed, or also those the scientific community deems necessary to prevent drastic and long-lasting climate harms threatening the full range of human rights? The Brussels Tribunal remained highly ambivalent on the matter. On the one hand, the Tribunal noted the scientific evidence offered by the IPCC reports and found a violation of human rights. On the other, it relied primarily on the failures of the Belgian authorities to meet their own objectives to find a breach of the “duty of care” and seemingly referred to the ECHR only in passim. It is hard to see the exact added value of this reference to the ECHR: it appears that the Tribunal would have reached the exact same decision regardless of the human rights-based line of argument.

We regret this ambiguity and believe this reflects a reluctance to engage fully with the case’s human rights implications. As Olivier De Schutter points out, the principle of the separation of powers cannot be used to prevent the protection of fundamental rights by the judicial power. It would be foreign to the contemporary articulation of power within liberal democracies to grant unchecked discretion to governments regarding a situation where their actions—or lack thereof—might threaten fundamental rights, as is the case with the climate emergency. The Brussels Tribunal justified its position by arguing that imposing such targets would amount to law-making rather than mere interpretation since those objectives are not found in legally binding instruments but in climate reports that are not binding on public authorities. As legal scholars committed to the rule of law, we can only applaud the willingness to—somewhat tautologically—distinguish scientific literature from legal instruments. Indeed, political authorities remain at the interface of expertise and policymaking, the former informing the latter through the mediation of the law. However, the argument of the Brussels Tribunal is fallacious. The plaintiffs did not ask to render scientific reports legally binding but to impose enhanced climate objectives in the name of human rights and the “duty of care” of authorities, read in the light of an overwhelming scientific consensus. In this line of reasoning, the scientific evidence must guide the dynamic interpretation of these legal regimes (human rights and civil liability) to adapt them to emerging contemporary challenges such as climate change.

3. Conclusion

 The devil is in the details. While we applaud the use of the Aarhus Convention to expand the standing of NGOs, and the confirmation of a government’s climate duty of care, we must acknowledge the ambiguities of the Tribunal’s reasoning. Beyond the separation of powers’ obstacle, we note with concern the fact that the CRC was brushed aside in sharp opposition with the recent views of the Committee for the Rights of the Child. Fundamentally, the judgment remained profoundly unclear as to the implications of the invocation of human rights by the plaintiffs.

Should the ambiguous position adopted by the Tribunal be confirmed on appeal, the plaintiffs may face a Pyrrhic victory with a practically unenforceable finding of wrongdoing on the part of the State. However, the judiciary has effectively condemned Belgian governments for their continuing deficiencies in climate action. This should usefully serve the political advocacy work of Belgian climate organizations and activists. Systemic and lasting changes beyond the courtroom remain the ultimate goal. Regardless of the eventual unfolding of this litigation saga, Klimaatzaak and participating citizens managed to create a new unavoidable “talking point” in the Belgian climate change legal framework. In our humble opinion, that is a laudable achievement.

 

Update as of November 17, 2021:

Two days after the publication of our Commentary, Klimaatzaak officially appealed the judgment of the Brussels Tribunal of First Instance. Klimaatzaak hopes to convince the Court to impose binding targets for greenhouse gas emissions reductions, which is precisely where the Tribunal of First Instance’s judgment allegedly fell short. The argument of the NGO points to the ambivalence of the decision noted in our Commentary. On the one hand, the Tribunal considered that the Governments did not act as prudent authorities in view of their knowledge of the danger of climate change. This seems to indicate that they are bound to a standard of behavior informed by climate science irrespective of existing legally binding climate objectives at the international, European, or national level. On the other hand, the Tribunal eventually held authorities accountable for their failure to respect the binding climate targets adopted. The plaintiffs regret this ambiguity, which reflects the confusion between two distinct sources of climate obligations for authorities: those already adopted in legally binding undertakings; and those emerging from human rights instruments (articles 2 and 8 ECHR) and the duty of care of authorities (article 1382 of the Belgian Civil Code) read in light of relevant scientific evidence. While mentioning the violation of these latter sources of obligations, the Tribunal limited itself to enforcing existing undertakings. In all likelihood, the Brussels Court of Appeal will render its judgment on appeal in a number of years because of the serious judicial backlog the Court faces.

* Matthias Petel is an SJD Candidate at Harvard Law School and Antoine De Spiegeleir is an LLM Candidate at Yale Law School

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