A look back at significant decisions in climate litigation in 2021
By Maria Antonia Tigre
2021 was a significant year for climate litigation, with several decisions worldwide providing a fresh look at stakeholder responsibility for climate change. The verdicts have shown that courts increasingly recognize climate change as a human rights issue, and that judges are prepared to order states – and now companies – to enact ambitious climate policies. In 2021, courts worldwide further defined governments’ and companies’ duty of care in relation to climate change, as well as a governments’ extraterritorial responsibility for climate harm. This post highlights some of the impactful decisions from courts and tribunals in climate litigation over the last year and their significance for future trends.
A first decision in climate litigation against private actors
Perhaps the most significant decision in climate litigation in 2021 came from the Netherlands. The Hague District Court ordered Shell in Milieudefensie et al. v. Royal Dutch Shell plc to reduce its emissions by 45% by 2030, relative to 2019, across all activities, including its subsidiaries and both its own emissions and end-use emissions (Scope 1, 2 and 3). The court made its decision provisionally enforceable, meaning Shell will be required to meet its reduction obligations even as the case is appealed. The obligation ensues from the unwritten standard of care in Dutch law, which prohibits acting in conflict with certain generally accepted norms. An in-depth analysis can be found here. The decision marks the first time that a company was held responsible for mitigating climate change in accordance with the commitments made by a state at the international level. Scholars and litigators worldwide are now assessing whether the case can be replicated in other jurisdictions.
National courts advance climate mitigation pushing governments towards increased action
At the national level, courts have broadened the scope of the responsibility of states for climate mitigation in countries such as France, Germany, Belgium, Australia, and Mexico. In France, a landmark decision ordered the government to increase climate action in order to implement its international commitments. The Administrative Court of Paris issued a decision in Notre Affaire à Tous and Others v. France recognizing France’s inaction on climate change. In this initial decision, the court found that it wasn’t yet able to order specific measures for lack of sufficient information and ordered an investigation before ruling on the plaintiff’s request. Once the investigation was complete, the court ordered France to take immediate and concrete actions to comply with its commitments on cutting carbon emissions and repair the damages caused by its inaction by December 31, 2022. The court further ruled that France had exceeded its emissions budget between 2015-2018, and that it must compensate for these excess emissions by further reducing emissions planned between 2021 and 2022. France has committed to reducing GHG emissions by 40% by 2030, compared to 1990 levels, and to reach carbon neutrality by 2050. Any future slippage of emissions beyond these legislative commitments must also be compensated. The government has full discretion in how to comply with the measures. The decision shows an example of the way courts are starting to assess the accountability of states to their international commitments, while also providing discretion to states to present evidence in a factual investigation and in choosing methods of compliance.
Germany’s Federal Constitutional Court presented another example of a court addressing state accountability and the way international commitments are reflected in national laws. In Neubauer, et al. v. Germany, the court struck down parts of Germany’s Federal Climate Protection Act as incompatible with fundamental rights for failing to set sufficient provisions for emissions cuts beyond 2030. Accepting arguments that the legislature must follow a carbon budget approach to limit warming to well below 2°C and, if possible, to 1.5°C, the court found that that legislature had not proportionally distributed the budget between current and future generations. The court ordered the legislature to set clear provisions for reduction targets from 2031 onward by the end of 2022. See an analysis of the decision here.
Similarly, a court in Belgium deemed current government climate measures insufficient. In VZW Klimaatzaak v. Kingdom of Belgium & Others, the Brussels Court of First Instance held that the Belgium government breached its duty of care by failing to take necessary measures to prevent the harmful effects of climate change. The court ruled that by failing to take sufficient climate action to protect the life and privacy of the plaintiffs, the defendants were in breach of their obligations under Articles 2 and 8 of the European Convention on Human Rights. However, the court declined to set specific reduction targets on separation of powers grounds. The decision is under appeal. For an in-depth analysis, see here.
Two decisions from Australia have also expanded the duty of care of states for climate change. In Sharma and others v. Minister for the Environment, Australia’s Federal Court established that the Minister of the Environment had a duty of care to avoid causing personal harm to children from climate change. The case specifically relates to a coal mine extension. However, the court declined to issue an injunction and found that the plaintiffs had not established that it is probable that the Minister would breach the duty of care in approving the extension of the mine, and had not established that they would have no further opportunity to apply for an injunction. In a later decision, the court clarified that the duty of care relates to all Australian young people. The Ministry of Environment appealed the decision arguing it relates to a matter of policy subject to the discretion of the ministry. In Bushfire Survivors for Climate Action Incorporated v. Environmental Protection Authority, the New South Wales Land and Environment Court in Australia held that the New South Wales Environmental Protection Authority (EPA) had failed to fulfill its duty to protect from harms from climate change and ordered the agency to develop environmental quality objectives, guidelines, and policies to ensure environment protection from climate change.
In Mexico, a landmark decision exemplified the consequences of a country’s failure to comply with the obligation of non-regression in the Paris Agreement (art. 4(3)). In Greenpeace v. Instituto Nacional de Ecología y Cambio Climático and Others, a Mexican court suspended the effects of Mexico’s revised Nationally Determined Contributions (NDC) after considering its mitigation commitments to be regressive, in violation of the law. In its 2020 NDC, Mexico raised the baseline against which the GHG emission reduction is measured, effectively allowing for additional emissions. A similar case is now pending in Brazil (see here).
Decisions at the International and Regional Levels
The Committee on the Rights of the Child (CRC)’s final decision in Sacchi et al. v. Argentina et al was highly anticipated. In 2019, 16 children and youth filed five petitions with the CRC alleging that Argentina, Brazil, France, Germany, and Turkey violated their rights under the United Nations Convention on the Rights of the Child (UNCRC) by failing to sufficiently address the climate crisis. The CRC rejected the petitions for failure to exhaust domestic remedies. However, the CRC’s findings and legal reasoning provide valuable guidance on protecting children’s rights in the context of climate change and opens the door to future child-centric climate-related cases. The CRC found that countries have extraterritorial responsibilities related to carbon pollution. Specifically, when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated if two factors are met: 1) there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory, and 2) the State of origin exercises effective control over the sources of the emissions in question. The findings provide a significant pathway for future climate litigation beyond the CRC, and its reliance on the interpretation of extraterritorial responsibility by the Inter-American Court of Human Rights shows a growing cross-fertilization of courts. For an in-depth discussion of the CRC’s reasoning and legal implications, see here and here.
Another highly anticipated case at the regional level was also dismissed on procedural grounds. In Armando Ferrão Carvalho and Others v. The European Parliament and the Council (the People’s Climate Case), the Court of Justice of the European Union (CJEU) dismissed the claims of 10 families who sought to compel the European Union (EU) to take more stringent greenhouse gas (GHG) emissions reductions. The CJEU held the applicant’s claims inadmissible on standing grounds for failing to demonstrate that they were individually impacted by Europe’s climate policy and rejected the applicant’s reliance on a (potential) fundamental rights infringement to satisfy the standing requirements. Critics of the decision argue that the CJEU’s standing requirement is too restrictive to provide appropriate access to justice in climate change matters, which affect everyone, including present and future generations. The decision has broad implications, as barriers to plaintiffs’ standing in climate actions against EU legislative acts will remain challenging to overcome.
Separation of powers doctrine still limits climate action
Successful climate lawsuits set an important – and hopeful – precedent. However, despite these significant advances in judicial climate governance, 2021 also saw some courts rejecting plaintiffs’ climate-related claims. For example, two decisions from the UK in cases related to permitting of infrastructure projects showed the limits of ambitious climate claims relative to a government’s discretionary power. In ClientEarth v. Secretary of State, the UK Court of Appeal heard a claim by an environmental NGO against the government’s approval for construction of a natural gas plant, which would become the largest in Europe. The Court of Appeal found that the government’s approval of the plant was lawful. While the court reasoned that GHG emissions are capable of being treated as “a freestanding reason for refusal” of permitting, it also held that they are not an “automatic and insuperable obstacle” to approval of infrastructure projects, and the decision-maker has discretion over the weight to assign to GHG emissions in approval decisions. In Greenpeace v. United Kingdom, the Scottish Court of Sessions dismissed a claim from Greenpeace against the UK government for awarding BP a permit to drill in the North Sea. The Court said that there was no duty to consider consumption-based emissions from the project as part of the environmental impact assessment of the project, reasoning that the question of whether the development of new oil and gas projects should cease is a political and not a legal one. These decisions show that separation of powers and political question doctrines can limit climate litigation, and that some jurisdictions may be more open to pushing the boundaries of responsibility than others.
2021 was a landmark year for significant climate decisions holding governments and companies accountable to their climate commitments. The number of climate cases filed in 2021 continued to rise, and there is every reason to expect rising filings and decisions in 2022. Next year is likely to bring further judicial decisions that continue to move the needle towards increased climate action by governments and companies worldwide.