Author: Corina Heri

In Sharma v. Minister for the Environment, issued today by the Federal Court of Australia, a group of children and their litigation representative, Sister Marie Brigid Arthur, argued that the Australian Minister for the Environment owes them and other Australian children a duty of care in approving coal mining projects because of the risk of climate change related harms, and sought an injunction against the project.

The case concerned a decision by the Minister to approve the extraction of coal from a coal mine. The judge considered the available evidence about the degree of risk and the magnitude of the risk of harm alleged by the applicants, as well as the foreseeability and likelihood of that harm arising and being caused or contributed to by coal-related CO2 emissions. The judge concluded that the Minister does have a duty of care towards children, but rejected the application for an injunction.

The judgment recognizes that “the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures, is on a continuum in which both the degree of risk and the magnitude of the potential harm will increase exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.”

At issue was the question of whether the emissions from the mine would be within the remaining carbon budget to be respected in order to keep warming below 2 degrees Celsius. On this, and putting the onus of compliance with this budget on the respondent Minister, the Judge held that he did not have sufficient evidence to concluded that this would not be the case. He noted that:

“The Minister called no evidence. The Minister essentially contended that the Court should infer that the 100 Mt of CO2 would likely be emitted in accordance with the Paris Agreement. There is no sufficient basis for that inference. The Minister relied upon little else than speculation, in circumstances where the evidence showed that at least one of the potential consumers of the coal is not a signatory to the Paris Agreement.”

For the full judgment, see here.

Today, in a history-making judgment in the case brought by Milieudefensie and other climate activist groups and NGOs, the Hague District Court found that the corporate actor Royal Dutch Shell has obligations to fight climate change. Specifically, it found that RDS must reduce its emissions by 45% by 2030, and that potential sacrifices that this might require in terms of corporate growth or investments do not outweigh the risks of harms posed by climate change. The Court in particular underscored the impact that RDS has in terms of emissions, it capacity to make a change in this regard, and the harmful effects of climate change in finding that the corporation not only had an obligation of result to reduce its emissions, but also an obligation of conduct to encourage suppliers and consumers to reduce their emissions.

The Court held that because Royal Dutch Shell has the “power and the means” to reduce harmful CO2 emissions, it has to do its part in this regard, which is not contingent on reductions by other actors. During the sessions, RDS argued that it alone cannot prevent climate change. The Hague District Court agreed, but found that this was not what was required, as States, other corporations and individuals are equally responsible for reducing their emissions. It dismissed this argument on the basis that RDS was not solely being held responsible for dangerous climate change, finding that the responsibility of others cannot serve to invalidate RDS’s own obligations.

RDS also argued that, that if was no longer able to trade in fossil fuels, others would take its place in doing so. The Court again noted that all actors must reduce their CO2 emissions, not just RDS. This might limit growth and new investments by RDS, but these possible sacrifices must be taken into account in the fight against dangerous climate change.

The judgment, in Dutch, was delivered via livestream.

For a translation of this ground-breaking judgment into English, see https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2021:5339

On 4 June, Lucas Roorda and the Utrecht Centre for Accountability and Liability Law will organize a discussion of this case at 15h. Send an e-mail to UCALL-Studentassistent@[nospam] uu.nl to join.

On 4 June at 15h, researchers at the University of Utrecht will host a discussion of yesterday’s judgment in the Milieudefensie v. Royal Dutch Shell case before the Hague District Court. To join Lucas Roorda and the Utrecht Centre for Accountability and Liability Law:, find out more and register for the event, by e-mailing UCALL-Studentassistent@[nospam] uu.nl.

#Youth4ClimateJustice, who are behind one of the ECtHR’s pending climate change cases — Duarte Agostinho and Others v. Portugal and 32 Other Member States — have set up a website publishing all of the third party interventions and state observations relevant to the case. This creates a degree of transparency that is unusual before the ECtHR, and it provides an overview of the many submissions involved in a case against so many states.

For the third-party interventions, click here.

For the government observations (not yet filed), click here.

GLAN’s Gerry Liston has recently published an article entitled “Enhancing the efficacy of climate change litigation: how to resolve the ‘fair share question’ in the context of international human rights law” in the Cambridge International Law Journal.

The abstract reads as follows:

The ambiguity surrounding what constitutes a State’s fair share of the global burden of mitigating climate change has undermined the ability of domestic climate change litigation to bring about emissions reductions which are collectively capable of meeting the goal of the Paris Agreement. When confronted with challenges to the adequacy of States’ mitigation efforts, domestic courts have also drawn on States’ international human rights law obligations. This paper argues that when applying these obligations, the uncertainty surrounding the fair share question must be resolved so as to ensure individual mitigation obligations which are collectively consistent with the Paris Agreement. The analysis focuses on the obligations under the European Convention on Human Rights and outlines how general principles of law applicable in situations involving causal uncertainty could be invoked to address the fair share question.

For more, click here.

In an order today, the First Senate of the German Federal Constitutional Court (Bundesverfassungsgericht) held that the provisions of the German Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the annual emission amounts allowed until 2030 are incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards. 

A press release in English is available here.

The case in short:

By 2030, the German Federal Climate Change Act (Bundes-Klimaschutzgesetz – KSG) requires a reduction in greenhouse gas (GHG) emissions by at least 55% relative to 1990 levels. It sets out the applicable reduction pathways by means of sectoral annual emission amounts. In its order, the First Senate held that the legislator, in introducing these provisions, had not violated its constitutional duty to protect the complainants from the risks of climate change or failed to satisfy the obligation to take climate action arising from Article 20a of the German Basic Law (Grundgesetz – GG).

However, it held that the challenged provisions of the KSG do violate the freedoms of the complainants, some of whom are still very young. The provisions irreversibly offload major emission reduction burdens onto periods after 2030. The constitutional climate goal arising from Article 20a GG, interpreted in light of the Paris Agreement, means limiting the increase in the global average temperature to well below 2°C and preferably to 1.5°C above pre-industrial levels. This means that the reductions required after 2030 will have to be achieved with ever greater speed and urgency. Because virtually all aspects of human life still involve the emission of GHG, practically every type of freedom is potentially threatened by drastic restrictions after 2030. As a result, the legislator should have taken precautionary steps to mitigate these major burdens in order to safeguard fundamental rights. The statutory provisions adjusting the reduction pathway for greenhouse gas emissions from 2031 onwards do not ensure that the necessary transition to climate neutrality is achieved in time. Legislation must be enacted by 31 December 2022 that must specify in greater detail how the reduction targets for GHG emissions are to be adjusted after 2030.

For an inofficial English translation of the judgment from the Sabin Center, see here.

For a comment by Anna-Julia Saiger in the Völkerrechtsblog, see here.

On 9-10 June 2021, the Centre for Fundamental Rights at the Hertie School, the Grantham Research Institute on Climate Change and the Environment at the LSE, the University of Stirling and the Center for Human Rights and Global Justice at NYU will organize a workshop on International Human Rights Courts and Bodies at the Edge of the Climate Tipping Point.

The aim of this workshop is to appraise the potentials and limits of bringing climate crisis cases before international human rights courts and bodies. For a full programme and more information, click here.