By Maria Antonia Tigre
As noted at the end of last year, 2021 was significant for climate litigation, with several decisions worldwide providing a fresh look at stakeholder responsibility for climate change. 2022 was no different, with courts further delineating the procedural dimensions of climate cases and expanding on the responsibilities of stakeholders for climate mitigation and adaption. This post highlights some of the most impactful decisions from courts, tribunals, and quasi-judicial bodies in climate litigation over the last year and their significance for future trends.
A landmark decision recognizing the impacts of climate change on human rights
In September this year, the U.N. Human Rights Committee (Committee) handed down a landmark decision in Daniel Billy and others v Australia, holding that Australia is violating its human rights obligations to the indigenous Torres Strait Islanders through climate change inaction. Based on the indigenous group’s challenge of Australia’s lacking mitigation and adaptation measures, the Committee recognized that climate change was currently impacting the claimants’ daily lives and, to the extent that their rights are being violated, that Australia’s poor climate record is a violation of their right to family life and right to culture under the International Covenant on Civil and Political Rrights (see a detailed analysis of the decision here and more about Indigenous groups’ role in climate litigation here).
The Philippines Commission on Human Rights published report on Carbon Majors’ responsibility for climate change
In May, the Philippines Commission on Human Rights (CHR) issued the final report of its multi-year investigation into 47 investor-owned corporations for human rights harms resulting from their contributions to climate change in In re Greenpeace Southeast Asia and Others. Major findings in the groundbreaking report include: (i) the corporations investigated (the Carbon Majors, as defined by the Climate Accountability Institute) had early awareness, notice, or knowledge of their products’ adverse impacts on the environment and climate system; (ii) Carbon Majors engaged in willful obfuscation of climate science; (iii) fossil-based companies may be held accountable by their shareholders for continued investments in oil explorations for largely speculative purposes; (iv) all corporate acts to obfuscate climate science and delay, derail, or obstruct this transition may be a basis for liability; and (v) Carbon Majors have the responsibility to undertake human rights due diligence and provide remediation. See a detailed analysis of the decision here.
Courts in the Czech Republic and the United Kingdom have provided oversight of government climate mitigation actions
The Czech Republic joins the Netherlands, France, Germany and other EU countries in determining a government’s duty to mitigate climate change. In June 2022, the Prague Municipal Court ruled in Klimatická žaloba ČR v. Czech Republic that the Czech Republic’s failure to take sufficient GHG mitigation measures is unlawful and that the state should abstain from continuing to infringe the plaintiffs’ human rights by such failure. The Ministry of the Environment appealed on points of law to the Supreme Administrative Court. (See a detailed analysis of the decision here.)
A court in the UK examined the national government’s plan for complying with its climate commitments. In July 2022, the High Court of England and Wales in R (Friends of the Earth Ltd and Others) v Secretary of State for Business Energy and Industrial Strategy found that the UK Government’s plans to cut carbon emissions were inadequate and breached national law. The claims concerned failings in the UK government’s economy-wide decarbonization plan, the Net Zero Strategy (NZS), adopted under the Climate Change Act (CCA). The strategy required the UK Government to set and meet legally binding targets to reduce carbon emissions. The court concluded that the Minister lacked the legally required information to adopt the NZS, and that this compromised his ability to take account of the risk that the policies would not achieve the statutory carbon budgets. Through affirming the CCA’s enforceability, the court’s decision ensures that the UK government is held accountable to its climate commitments. (See a detailed analysis of the decision here.)
Standing issues in the European Union
At the European Union (EU), two decisions from 2022 expand on the issue of standing in climate cases. In Ville de Paris and Others v. European Commission, the City of Paris, the City of Brussels, and the Municipality of Madrid brought an action against the European Commission (EC) challenging a regulation establishing a new procedure for testing the real driving emissions of certain motor vehicles. The cities argued that the regulation would prevent them from imposing restrictions on the circulation of passenger vehicles in relation to their air pollutant emissions. In 2018, the General Court partially upheld the actions, prompting an appeal from the European Court of Justice (ECJ). In January 2022, the ECJ handed down its decision in that appeal, ruling in favor of the EC. The ruling clarifies requirements for standing under primary EU law to challenge a Commission regulation. The ECJ held that the General Court had erred when it stated that the cities were prevented from exercising their powers to regulate the circulation of passenger vehicles to reduce pollution because the cities did not have a “direct concern.” The ruling further delineates earlier findings of the ECJ limiting admissibility of climate cases before EU courts (see Armando Ferrão Carvalho and Others v. The European Parliament and the Council).
In Deutsche Umwelthilfe v. Germany, the ECJ analyzed the issue of standing under the Aarhus Convention. In this case, Deutsche Umwelthilfe (DUH), a German NGO, brought an action against the German Federal Motor Transport Authority for its approval of a particular type of software used in diesel vehicles, which DUH considered an illegal defeat device under EU regulation. Following a domestic claim brought in Germany, the administrative court referred the case to the ECJ to rule on whether an environmental association, which is in principle entitled to bring an action under national law, can challenge an EU type-approval. In November 2022, the ECJ considerably expanded the rights of environmental associations to bring actions and extended them to include actions against EU vehicle type approvals. The ECJ also emphasized the primacy of EU law, with the result that no provisions of German law can restrict such a right to bring an action. Since the decision clarifies the conditions under which defeat devices of emissions control systems can be justified, it is also relevant in other jurisdictions in the EU (see an analysis of the decision here).
Several climate claims have failed to advance on procedural grounds, facing admissibility issues or being dismissed on separation of powers grounds
Several courts around the world have dismissed climate claims on procedural grounds this year. In Canada (Environnement Jeunesse v Procureur Général du Québec) and the United Kingdom (R (oao Cox & Others) v Oil and Gas Authority & Others), courts have been reluctant to accept any interference with what they see as the role of the executive and legislative branches of government. Similarly, in Chile, a court rejected a claim brought by a group of women in Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health, finding that the matter in question was beyond its competence, as it involved the exercise of powers belonging to the executive branch.
In Germany, after the successful decision from 2021 in Neubauer et al. v. Germany, plaintiffs attempted to target companies and subnational governments to ensure that their obligations to reduce emissions were also recognized by courts. However, the expansion of these obligations to a wider range of stakeholders have been met with resistance by the courts. In Deutsche Umwelthilfe (DUH) v. Mercedes-Benz AG, the Regional Court of Stuttgart dismissed a complaint accusing Mercedes-Benz of not having clear plans to phase out the sale of passenger cars with internal combustion engines and therefore violating the fundamental right to climate protection of future generations (read more about the claims against automakers in Germany here). The regional court found that it is up to the legislator to decide the appropriate measures to protect the environment. Similarly, the First Senate of the Federal Constitutional Court dismissed 11 complaints brought against subnational governments asking that their obligations to mitigate climate change be properly defined (Marlene Lemme, et al. v. State of Bayern (constitutional claim); Emma Johanna Kiehm, et al. v. State of Brandenburg; Luca Salis, et al. v. State of Sachsen-Anhalt; Tristan Runge, et al. v. State of Saxony; Leonie Frank, et. al v. State of Saarland; Otis Hoffman, et al. v. State of Mecklenburg-Vorpommern; Alena Hochstadt, et al. v. State of Hessen; Jannis Krüßmann, et al. v. Nordrhein-Westfalen (NRW)). The court found that complainants’ fundamental rights were not violated preemptively because the federal legislator, not the state legislatures, are subject to a carbon dioxide emissions budget.
Climate cases also failed on merits in several countries
In Mexico, challenges to the government’s backsliding on incentives to renewable energy have failed to advance. In Greenpeace v. Ministry of Energy and Others, the Mexican First Circuit Court held that the harm caused by two electricity sector policies that would limit renewable energy investment was not sufficient to suspend the effects of a constitutional amendment. The amendment significantly reduced the participation of autonomous energy operators in the energy sector, directly affecting the supply of renewable energy. Similarly, in Challenge to the constitutionality of amendments to the rules governing Clean Energy Certificates, the Mexican Supreme Court held that the amendments to the Electric Industry Act, which established that the allocation of Clean Energy Certificates will no longer be conditioned on ownership or utilities’ start date of commercial operations, was constitutional.
In Australia and New Zealand, plaintiffs failed to establish that there is a government’s duty of care to mitigate greenhouse gas emissions. In Australia, the Full Federal Court overturned a lower court’s decision in Sharma and others v. Minister for the Environment to impose a duty of care on the Minister of Environment to avoid causing injury to children arising from carbon dioxide emissions (see an analysis of the decision here). In Smith v. Attorney General, the High Court of New Zealand dismissed claims from Māori plaintiffs against the government for failing to reduce carbon dioxide emissions. It found that the common law duty of care lacked reference to any recognized legal obligations and went beyond mere incremental development of new obligations.
An important win for climate action on investor-state dispute settlement cases
In other types of cases, however, climate litigation saw important advancements this year. Two domestic courts in Germany and Netherlands have significantly limited the ability of corporations to seek compensation for the effects of climate policies on their assets, directly affecting two pending investor-state dispute settlement (ISDS) cases, Uniper v. the Netherlands and RWE v. the Netherlands. In an anti-arbitration injunction brought by the Dutch government in Germany (The Netherlands v. RWE and Uniper), the Higher Regional Court of Cologne declared in September 2022 that both ICSID arbitral claims were inadmissible. The court found the arbitral clause of the Energy Charter Treaty incompatible with EU law and thus invalid in intra-EU arbitrations. The Court’s decision can be appealed. However, after the decision was handed down, the German government announced that it would take over 99% of Uniper in exchange for which the company agreed to withdraw its ICSID claim against the Netherlands (Uniper v. the Netherlands). Uniper’s ICSID proceedings are currently paused until January 2023.
In RWE and Uniper v. the Netherlands (Ministry of Climate and Energy), the District Court of the Hague held that energy companies RWE and Uniper could not claim financial compensation from the government for the mandatory phase-out of coal-fired electricity production. The court ruled that there is no “unlawful interference” with property rights based on EU case law. The court further decided that the measures taken by the Dutch State to reduce carbon dioxide emissions are proportional and that the interests of the owners have been sufficiently taken into account when adopting the law. Based on these arguments, the court concluded that the Prohibition on Coal in Electricity Production Act, demanding that companies phase out coal use by 2030, does not place an “individual and excessive burden” on the energy companies.
Courts in Latin America have limited government’s actions that affect human rights
In Latin America, courts in Ecuador and Brazil have limited the government’s authority to adopt policies that negatively affect the environment based on the effects of climate change on human rights. In Herrera Carrion et al. v. Ministry of the Environment et al., an Ecuadorian court ordered gradual and progressive elimination of gas flares, holding that the authorizations for the activities disregard various international commitments made by Ecuador in environmental matters, as well as affect the plaintiffs human rights. The Brazilian Supreme Court went one step further in PSB et al. v. Brazil and held that the executive branch has a constitutional duty to execute and allocate the funds of the Climate Fund to mitigate climate change, based on both the separation of powers and the constitutional right to a healthy environment. The court further found that the judiciary, in turn, must act to avoid the regression of environmental protection because environmental law treaties – including the Paris Agreement – constitute a particular type of human rights treaty, which enjoy “supranational status” and are above regular laws in the legal hierarchy (see an analysis of the decision here).
Courts still have wildly different views on whether it is necessary to assess climate impacts in environmental impact assessments
In April 2022, the Chilean Supreme Court ruled that climate change should be considered in environmental assessment in Mejillones Tourist Service Association and others with the Environmental Evaluation Service (SEA) of Antofagasta. The Supreme Court held that the environmental impact assessment (EIA) must include climate change impacts in the review process of the project’s environmental permit. In contrast, in R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others), the United Kingdom (UK) Court of Appeal found in February 2022 that it was lawful not to consider the end-use greenhouse gas emissions in the EIA of a decision to expand new wells for the production of hydrocarbons (crude oil). In Japan, the Osaka High Court found in Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan that an EIA of two new coal-fired units did not need to consider carbon dioxide emissions as this was a policy issue (see an assessment of the pending cases challenging coal power plants in Japan here). The British Columbia Court of Appeals in Canada also found that a permit to operate a rock quarry did not need to consider climate change in Highlands District Community Association v. British Columbia (Attorney General). The court found that the broad discretion granted to the decision maker under the Mines Act imposes no mandatory requirements.
In total, in 2022, we saw 47 new cases filed in 25 jurisdictions, including first time jurisdictions such as Finland and Russia. Separation of powers issues continued to limit the ability of courts to interfere with climate action in some countries. However, courts in other jurisdictions have further engaged with judicial oversight of climate action by the legislative and executive bodies, especially when these interfere with human rights. With the regional expansion of climate litigation to additional jurisdictions and with the broadening scope of climate action challenged by plaintiffs, we will likely continue to see a wide diversity of approaches to the role of courts in climate change. 2023 is sure to be a big year, bringing even more decisions delineating the responsibilities of different stakeholders on climate change, including with a first climate judgment from the European Court of Human Rights.