Category: Separation of powers

Categories
Elderly Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Evidence Fair trial Gender / women-led Imminent risk Keywords Margin of appreciation Paris Agreement Private and family life Right to life Separation of powers Standing/admissibility Switzerland Victim status Vulnerability

Verein KlimaSeniorinnen et al. v. Switzerland

Summary:
In 2016, the Senior Women for Climate Protection Switzerland (German: ‘Verein KlimaSeniorinnen’), a Swiss organisation, brought proceedings concerning the alleged omissions of the Swiss federal government to adopt an adequate climate protection policy. They submitted that current domestic climate targets and measures are not sufficient to limit global warming to a safe level. This failure to prevent climate-related disasters, they argued, represents a failure to protect the rights under Articles 2 and 8 ECHR (the rights to life and respect for private and family life, respectively) of the organization’s members. In particular, they submitted evidence that their specific demographic (older women) is particularly impacted by heatwaves, citing health impacts and excess mortality risks. The respondent State, they argued, has failed to comply with its positive obligations to protect their rights, read in light of the environmental law principles of precaution and intergenerational equity.

The applicants also invoked two procedural rights under the Convention, namely the rights in Articles 6 and 13 ECHR (right to a fair trial and right to an effective remedy, respectively). In this regard they argued that the domestic courts failed to take their case seriously and provide an effective remedy to contest the violation of their rights.

These claims were rejected by the domestic instances at three levels of jurisdiction. The Swiss Federal Supreme Court, in its ruling, considered that the case represented an actio popularis, concerned questions better suited to the political arena, and did not raise an arguable claim of a rights violation. As a result, the applicants took their case to the European Court of Human Rights in Strasbourg.

This case was only the second climate change-related case to come to Strasbourg. Like the Duarte Agostinho case, this application raised novel questions before the Court, including the issue of victim status in climate cases, the standing of (environmental) NGOs to bring cases to the Court, and the extent of the State margin of appreciation in regard to environmental protection measures related to climate change, and the extent of the positive obligation to protect individuals from the risks to their life and health posed by climate change.

On 9 April 2024, in a historic ruling, the ECtHR declared this case admissible in part (for the association) and found that there had been violations of Articles 6(1) and 8 ECHR. In doing so, this case became the Court’s leading climate judgment, and a model for further climate-related cases in this system.

Third-party interventions:
There were an unusually large (for the ECtHR) number of third party interventions in this case: 23 in total, including eight States. The KlimaSeniorinnen association provided copies of all of the third-party interventions; these are available here. Some of the third-party interveners were also granted leave to intervene orally during the hearing before the Grand Chamber.

Grand Chamber hearing:
This was the first climate case heard by the European Court of Human Rights, followed immediately by the Carême v. France case. The Court has adjourned its examination of six other climate cases until the Grand Chamber has ruled in the three climate change cases before it, meaning that leading judgments clarifying the Convention obligations around cliamte change can be expected in these cases.

During the hearing, submissions were heard from the applicants, the respondent State, and two of the 23 total third-party interveners (the Government of Ireland & the European Network of National Human Rights Institutions (ENNHRI). A live summary of the hearing is available here.

General findings of the Court in its judgment of 9 April 2024:
The Court’s judgment is prefaced by a number of general findings that reflect its intended nature as a leading case. Noting the need to ensure effective protection of Convention rights without undermining the prohibition of actio popularis cases under the Convention system, the Court acknowledged that it had a role to play here, finding that “the current situation (…) involves compelling present‑day conditions, confirmed by scientific knowledge, which the Court cannot ignore in its role as a judicial body tasked with the enforcement of human rights.” At the same time, noting “the necessarily primary responsibility of the legislative and executive branches and the inherently collective nature of both the consequences and the challenges arising from the adverse effects of climate change”, it held that the isuse of victim status here raised an issue of the separation of powers, requiring particular consideration. Noting the global and complex nature of climate change, it held that “the necessity of combating climate change involves various conflicts, the weighing‑up of which falls, as stated previously, within the democratic decision‑making processes, complemented by judicial oversight by the domestic courts and this Court.”

In light of this, and before assessing the case, the Court set out a number of general considerations relating to climate‑change cases. This includes questions of causation, including the finding that despite indirect causal links, “the essence of the relevant State duties in the context of climate change relates to the reduction of the risks of harm for individuals”, meaning that it could not apply”a strict conditio sine qua non requirement” to matters of causation. This section also includes issues of proof and evidence, and references the “evolution of scientific knowledge, social and political attitudes and legal standards concerning the necessity of protecting the environment”. Here the Court established that “there are sufficiently reliable indications that anthropogenic climate change exists, that it poses a serious current and future threat to the enjoyment of human rights guaranteed under the Convention, that States are aware of it and capable of taking measures to effectively address it, that the relevant risks are projected to be lower if the rise in temperature is limited to 1.5°C above pre-industrial levels and if action is taken urgently, and that current global mitigation efforts are not sufficient to meet the latter target” (para. 436). And, importantly, it discarded the “drop in the bucket” argument made by the respondent State, stating that “The relevant test does not require it to be shown that “but for” the failing or omission of the authorities the harm would not have occurred. Rather, what is important, and sufficient to engage the responsibility of the State, is that reasonable measures which the domestic authorities failed to take could have had a real prospect of altering the outcome or mitigating the harm” (para. 444). It also stressed that there is no right to a healthy environment in the ECHR, but that it can and has nonetheless dealt with other environmental cases, reiterating its past approach that “the crucial element which must be present in determining whether, in the circumstances of a given case, an environmental harm has adversely affected one of the rights safeguarded by the Convention is the existence of a harmful effect on a person and not simply the general deterioration of the environment” (para. 446). It also noted that it is conscious of its subsidiary role and the direct democratic legitimation of national authorities to make decisions on climate policy, but that where State policy affects Convention rights, it has competence to intervene and “the Court’s competence in the context of climate-change litigation cannot, as a matter of principle, be excluded” (paras. 449-451).

The Court also set out the relevant principles for interpreting the ECHR, including the living instrument approach and the fact that while the Court “does not have the authority to ensure compliance with international treaties or obligations other than the Convention” — including the Paris Agreement — it has consistently noted that it will interpret the Convention in harmony with other international law.

Admissibility:
On 9 April 2024, the Court declared this case admissible in part. Under Article 34 ECHR, it used this judgment as an opportunity to create new standards on victim status specific to climate-related cases. In doing so, it set out the general standards on victim status, noting that it did not admit actio popularis cases and that the ECHR “does not permit individuals or groups of individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention” (para. 460). It noted that the notion of victim status must be applied flexibly, and that it’s distinct from locus standi, i.e. representative actions.

The Court then issued general considerations on victim status and locus standi in climate cases, noting that “there is cogent scientific evidence demonstrating that climate change has already contributed to an increase in morbidity and mortality, especially among certain more vulnerable groups, that it actually creates such effects and that, in the absence of resolute action by States, it risks progressing to the point of being irreversible and disastrous” (para. 478).

It also held that (para. 479): the critical issues around climate change “arise from failures to act, or inadequate action”, meaning omissions in legislative or regulatory frameworks that require a special approach to victim status. Importantly, the Court also clarified that its findings on victim status in the context of complaints about omissions in climate policy “is without prejudice to the determination of victim status in circumstances where complaints by individuals concern alleged violations arising from a specific individual loss or damage already suffered by them” (para. 480), meaning that the specially approach spelled out for mitigation cases need not preclude other types of claims. However, it held, in the context of climate change, “a potentially a huge number of persons could claim victim status under the Convention”, which “would not sit well with the exclusion of actio popularis from the Convention mechanism and the effective functioning of the right of individual application” (para. 483). The Court clarified the difficult situation in which it found itself, between “disrupting national constitutional principles and the separation of powers” and depriving individuals affected in their rights from “any judicial recourse before the Court”, noting the “distinct representational disadvantage” of those most affected (para. 484). It then, in para 487 of the judgment, spelled out the criteria for individual victim status in climate cases. These are:

  • (a)  “a high intensity of exposure to the adverse effects of climate change”, i.e. a significant level and severity of risk of adverse consequences; and
  • (b) “a pressing need to ensure the applicant’s individual protection, owing to the absence or inadequacy of any reasonable measures to reduce harm.”

Given that there is no actio popularis under the Convention, the Court held, “the threshold for fulfilling these criteria is especially high”, and will depend on specific vulnerabilities and local circumstances as well as including considerations relating to: “the nature and scope of the applicant’s Convention complaint, the actuality/remoteness and/or probability of the adverse effects of climate change in time, the specific impact on the applicant’s life, health or well-being, the magnitude and duration of the harmful effects, the scope of the risk (localised or general), and the nature of the applicant’s vulnerability” (para. 488).

As to the standing of associations, the Court generally reiterated its previous Gorraiz Lizarraga and Others judgment, which had allowed representative standing for an organisation. It noted that recourse to collective bodies like associations can make defense of one’s interests more accessible in certain circumstances, including the context of climate change, noting that this general principle was also reflected in the Aarhus Convention, which it discussed extensively. The Court then set out some general principles on organizations’ victim status versus their standing as representatives of victims. In light of the former, it reiterated past case-law finding that “an association cannot rely on health considerations or nuisances and problems associated with climate change which can only be encountered by natural persons”. But it also recognized that understandings of the importance of litigation by associations had evolved, and that climate cases are complex and demanding and affect many individuals (para. 498). In addition, “the special feature of climate change as a common concern of humankind and the necessity of promoting intergenerational burden-sharing in this context (…), speak in favour of recognising the standing of associations before the Court in climate-change cases” (para. 499). However, this should not mean allowing an actio popularis: a test for associations’ standing is required. To design its test, the Court had regard to the Aarhus Convention while also noting key difference between its approach and that under Aarhus.

The test it devised for associations looks as follows: associations will have locus standi to bring climate cases about impacts on human lives and health where they:

  • (a) have been lawfully established in the relevant jurisdiction, or have standing to act there;
  • (b) pursue, under their statutory objectives, a dedicated purpose of defending the human rights of their members or other affected individuals in the jurisdiction concerned, and
  • (c) are genuinely qualified and representative to act on behalf of affected individuals in the jurisdiction who are subject to specific threats on their lives, health or well-being from climate change.

The Court also noted that it would consider additional factors, like the purpose for which the association was established, its non-profit character, the nature and extent of its activities, its membership and representativeness, its principles and transparency of governance and whether standing is in the interests of the proper administration of justice.

There was no need, however, to show that those on whose behalf the case has been brought would themselves have met the climate-specific victim-status requirements for individuals as set out earlier in the judgment.

Because the Court joined its actual analysis of the victim status requirement to the merits of the case, this is discussed in the following section.

Merits:
In setting out general principles on the applicability of Article 2 ECHR (the right to life), the Court noted past cases where the right was applicable to situations where there is a threat to life, but “where the person concerned did not die”. Although noting the evidence on vulnerable populations, the Court reiterated that the appropriate test here is one of whether there is a “real and imminent” risk to life, meaning that the risk must be serious, gennuine, sufficiently ascertainable and in physical proximity. It then tailored this last aspect to the nature of climate change, stating that it would suffice to show “an element of material and temporal proximity of the threat to the harm complained of by the applicant”. This means that, provided an applicant has victim status, “a serious risk of a significant decline in a person’s life expectancy owing to climate change ought also to trigger the applicability of Article 2.”

As for Article 8 ECHR, the Court stated generally that it was necessary to show an “actual interference” with the right, meaning that there needs to be “a direct and immediate link between the alleged environmental harm and the applicant’s private or family life or home”, and a

As for Article 8 ECHR, the Court stated generally that it was necessary to show an “actual interference” with the right, meaning that there needs to be “a direct and immediate link between the alleged environmental harm and the applicant’s private or family life or home”, and a certain level of severity. Drawing on its past environmental case-law, the Court went on to establish that “Article 8 must be seen as encompassing a right for individuals to effective protection by the State authorities from serious adverse effects of climate change on their life, health, well-being and quality of life” (para. 519).

The Court then considered the applicability of Art. 8 ECHR to the case before it. As concerned the applicant association, it found that it met the criteria for standing by associations as set out earlier in the judgment, describing the KlimaSeniorinnen association as “a vehicle of collective recourse aimed at defending the rights and interests of individuals against the threats of climate change in the respondent State”. The the complaints pursued by the association on behalf of its members, it held, fall within the scope of Article 8. The association accordingly had locus standi, and Article 8 was declared applicable to its complaint.

On applicants 2-5 (the individual applicants), the Court held that the threshold for meeting its two criteria (high-intensity exposure and a pressing need to ensure protection) was high. It was not enough to show that they were particularly vulnerable to the effects of climate change. The crucial paragraph of the judgment here is para. 533: “while it may be accepted that heatwaves affected the applicants’ quality of life, it is not apparent from the available materials that they were exposed to the adverse effects of climate change, or were at risk of being exposed at any relevant point in the future, with a degree of intensity giving rise to a pressing need to ensure their individual protection (…). It cannot be said that the applicants suffered from any critical medical condition whose possible aggravation linked to heatwaves could not be alleviated by the adaptation measures available in Switzerland or by means of reasonable measures of personal adaptation”. Their complaint was accordingly declared inadmissible.

On the claims under Article 2, the Court held that it was not necessary to analyze this further, noting that its analysis would “have regard to the principles developed also under Article 2, which to a very large extent are similar to those under Article 8 (…) and which, when seen together, provide a useful basis for defining the overall approach to be applied in the climate-change context under both provisions.”

The Court then recapitulated more general principles now on the merits proper. It held that the Article 2 and 8 positive obligations are generally quite similar, requiring the State:

  • (a)  to put in place an adequate legislative and administrative framework and govern the licensing, setting-up, operation, security and supervision of the activity;
  • (b) to apply that framework effectively in practice;
  • (c) to remain within their margin of appreciation;
  • (d) to exercise due diligence and consider all competing interests;
  • (f) to provide access to essential information enabling individuals to assess risks to their health and lives;

Noting also that “the scope of the positive obligations imputable to the State in the particular circumstances will depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation”.

In reviewing the domestic decision-making process, the Court has particular regard to the following considerations:

  • (a) Its subsidiary role;
  • (b) The need to consider all of the procedural aspects;
  • (c) The presence of appropriate investigations and studies;
  • (d) The public’s access to the conclusions of the relevant studies; and
  • (e) Whether or not the individuals concerned had an opportunity to protect their interests in the environmental decision-making process, i.e. participate effectively.

Turning to States’ positive obligations relation to climate, it first considered the State margin of appreciation. Having regard to the scientific evidence, the Court considered it justified to give climate protection considerable weight against competing considerations.

Regarding the margin of appreciation it distinguished between the scope of the margin as regards (i) the State’s commitment combating climate change and setting objectives in this respect, and (ii) the choice of means designed to achieve those objectives. The margin is more narrow with regard to the former. For the latter aspect, i.e. the choice of means, States have a wide margin of appreciation.

As to the content of States’ positive obligations under Article 8, this is primarily a regulatory obligation. This means that, in line with their international commitments, States need to put in place regulations and measures to prevent climate change. The global aims in the Paris Agreement are not enough; and “must inform the formulation of domestic policies, it is obvious that the said aims cannot of themselves suffice as a criterion for any assessment of Convention compliance of individual Contracting Parties to the Convention in this area. This is because “each individual State is called upon to define its own adequate pathway for reaching carbon neutrality, depending on the sources and levels of emissions and all other relevant factors within its jurisdiction.”

This means that Article 8 ECHR “requires that each Contracting State undertake measures for the substantial and progressive reduction of their respective GHG emission levels, with a view to reaching net neutrality within, in principle, the next three decades” (ca. 2050). To avoid a disproportionate burden on future generations, this means immediate action needs to be taken and adequate intermediate reduction goals must be set for the interim period. The Court spelled out that this must be part of a binding regulatory framework at the national level, followed by adequate implementation, and that “the relevant targets and timelines must form an integral part of the domestic regulatory framework, as a basis for general and sectoral mitigation measures.”

In para. 550, the Court set out the criteria it would use to decide whether a State has remained within its margin of appreciation, namely whether the authorities had due regard to the need to:

  • “(a) adopt general measures specifying a target timeline for achieving carbon neutrality and the overall remaining carbon budget for the same time frame, or another equivalent method of quantification of future GHG emissions, in line with the overarching goal for national and/or global climate-change mitigation commitments;
  • (b) set out intermediate GHG emissions reduction targets and pathways (by sector or other relevant methodologies) that are deemed capable, in principle, of meeting the overall national GHG reduction goals within the relevant time frames undertaken in national policies;
  • (c) provide evidence showing whether they have duly complied, or are in the process of complying, with the relevant GHG reduction targets (…);
  • (d) keep the relevant GHG reduction targets updated with due diligence, and based on the best available evidence; and
  • (e) act in good time and in an appropriate and consistent manner when devising and implementing the relevant legislation and measures.”

These mitigation measures, it added, must be supplemented by adaptation measures aimed at alleviating the most severe or imminent consequences of climate change, taking into account particular protection needs.

The Court also set out procedural safeguards, namely

  • (a) The publicity of relevant information; and
  • (b) The availability of procedures to take into account the views of the public, and in particular the interests of those affected.

Applying these principles to the case before it, the Court held that it could “take into account the overall situation in the respondent State”, including relevant information that came to light after the domestic proceedings, but that here, given an ongoing domestic legislative process, its assessment was limited to examining the domestic legislation as it stood on the date of the (internal) adoption of the judgment, which was 14 February 2024.

The Court noted that the currently existing 2011 CO2 Act (in force since 2013) required that emissions reductions of 20% by 2020 compared with 1990 levels. However, as far back as August 2009, the Swiss Federal Council had found that the scientific evidence under a 2-2.4°C warming limit required a reduction in global emissions of at least 50-85% by 2050 compared with 1990 levels. Industrialised countries (like Switzerland) had to reduce their emissions by 25-40% by 2020 compared to 1990 levels. for the higher 1.5°C limit, emissions would have to decline continuously, and the pathway 20% by 2020 pathway was insufficient to achieve that objective.

As the Government acknowledged, domestic assessments found that even the reduction target for 2020 had been missed. Between 2013 and 2020, Switzerland reduced its emissions by around 11% compared with 1990 levels, indicating the insufficiency of the authorities’ past action to take the necessary measures to address climate change.

A proposed revision of the CO2 Act for 2020-2030 proposed an overall reduction of 50% of emissions, including a domestic reduction of 30% by 2030 and measures to be taken abroad (“external emissions”). This proposal was rejected in a popular referendum in June 2021. Here the Court held that, “irrespective of the way in which the legislative process is organised from the domestic constitutional point of view”, there was a legislative lacuna, pointing to a failure on the part of the respondent State to fulfil its positive obligations under Article 8 to devise a regulatory framework setting the requisite objectives and goals.

Reflecting the updated Swiss NDC, the Climate Act was enacted, and envisages the principle of a net‑zero emissions target by 2050, but several lacunae remain, and “the Court has difficulty accepting that the mere legislative commitment to adopt the concrete measures “in good time” (…) satisfies the State’s duty”, especially because “the introduction of that new legislation is not sufficient to remedy the shortcomings identified in the legal framework applicable so far.”

Currently, the Swiss goal used more emissions than even a globally equal “per capita emissions” approach would entitle it to use.

The Court rejected the Government’s argument that there was no established methodology to determine a country’s carbon budget, and noted that an NDC under the Paris Agreement was not an appropriate substitute. The Court approved of the reasoning of the German Federal Constitutional Court in Neubauer, where it rejected the argument that it was impossible to determine the national carbon budget by emphasizing the principle of common but differentiated responsibilities under the UNFCCC and the Paris Agreement.

Thus, “while acknowledging that the measures and methods determining the details of the State’s climate policy fall within its wide margin of appreciation, in the absence of any domestic measure attempting to quantify the respondent State’s remaining carbon budget, the Court has difficulty accepting that the State could be regarded as complying effectively with its regulatory obligation under Article 8” (para. 572). This meant that there had been a violation of Article 8 of the Convention (by a majority of 16-1).

On the issue of Article 6 ECHR, concerning the right of access to a court, the Court held that the issue of victim status should again be joined to the merits, and the Court again dove in with general principles, finding that it did not per se need to tailor these principles to the nature of climate change cases.

Examining these principles in the case before it, the Court held that “it cannot be said that the individual applicants’ claim was frivolous or vexatious or otherwise lacking in foundation in terms of the relevant domestic law (…). The Court is unable to agree with the finding of the FSC that the individual applicants’ claim could not be considered arguable for the purposes of Article 6 § 1 of the Convention” (para. 618). It went on to find that interests defended by the association meant that the “dispute” raised by it had a direct and sufficient link to its members’ rights. Finding that Article 6 (1) applied to the complaint of the applicant association, the Court also considered it to have victim status.

For the individual applicants, however, the Court found that the dispute they had brought concerning the failure to effectively implement mitigation measures was not directly decisive for their specific rights. They had not shown that there was a sufficiently imminent and certain effect on their individual rights, and this part of their complaint was inadmissible.

For the association, among other things, the Court rejected the domestic courts’ findings that there was still some time to prevent global warming from reaching the critical limit, and noted that they “did not engage seriously or at all with the action brought by the applicant association.” There had accordingly been a violation of Art. 6(1) ECHR, with the Court emphasizing “the key role which domestic courts have played and will play in climate-change litigation”.

The applicants also complained that they had not had access to an effective remedy within the meaning of Article 13 of the Convention. Here the Court noted that Article 6 is a lex specialis to Article 13, the latter being absorbed by the more stringent requirements of Article 6, so there was no separate issue in its regard.

Remedies:
The individual applicants had made requests for just satisfaction for damage under Article 41 ECHR, but the organisation did not, so no award was made. The Court did award costs and expenses to the amount of EUR 80,000.

The applicants had also made an Art. 46 claim for a general measures order. Here the Court noted that it is primarily for the State to choose, under the supervision by the Committee of Ministers, the means to be used domestically to discharge its obligation to comply with the Court’s judgment, as long as the means are compatible with the conclusions and spirit of that judgment. The Court went on to hold that, “having regard to the complexity and the nature of the issues involved, the Court is unable to be detailed or prescriptive as regards any measures to be implemented in order to effectively comply with the present judgment.” It noted the State’s broad margin of appreciation choose the means to discharge its Convention obligations, and found that the State was thus better placed than the Court to decide which specific measures to take.

Separate opinions:
A separate opinion by Judge Eicke is annexed to this judgment. He disagreed with the majority in several points, especially victim status and the merits of Art. 8. He presented his view as a disagreement of a “fundamental nature” that “goes to the very heart of the role of the Court within the Convention system and, more generally, the role of a court in the context of the unique and unprecedented challenges posed to humanity” because the majority had exceeded “the permissible limits of evolutive interpretation”.

According to Judge Eicke, the majority judgment creates a new right to “effective protection by the State authorities from serious adverse effects on their life, health, well‑being and quality of life arising from the harmful effects and risks caused by climate change”. While acknowledging the seriousness of the threat of climate change, and noting “(a) the absolute need for urgent action and (b) the sheer complexity of the challenges climate change (and the other aspects of the “triple planetary crisis”) pose (geo-)politically, practically, logistically as well as legal,” he argues that the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances (Article 2(2) Paris Agreement) is “difficult to reconcile (if not wholly inconsistent) with the Court’s primary role of ensuring observance of a common minimum standard of protection applicable equally to all Contracting Parties”.

On victim status, Eicke argues that “there was, in fact, no dispute and no uncertainty about the “victim” status of the individual applicants in relation to the Article 6 § 1 complaint in this case; and therefore no need to join that question to the merits”. He sets out and adheres to the previously established case-law on victim status, refusing to join the majority in creating a new approach tailored to climate cases and arguing that exceptions should only be possible where individual applications document victim status are not “ever” likely to be possible. He argues that the judgment creates an actio popularis.

Under Articles 2 and 8, Eicke argues that while it would have been possible to find a procedural violation of Articles 2 or 8, “the substantive violation of Article 8 which the majority seeks to construct from this starting premise has no basis either in the text of the Convention nor in any of the Court’s case-law.” He considers that “the Court would already have achieved much if it had focussed on a violation of Article 6 of the Convention and, at a push, a procedural violation of Article 8 relating in particular to (…) the right of access to court and of access to information”. He accuses the majority of trying “to run before it could walk”, and “giving (false) hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change”, and mentions the risk that this judgment will distract from other efforts to tackle climate change.

Implementation measures taken:

N/A

Date of decision:
It was announced on 26 March 2024 that the Grand Chamber would issue its judgment in this case, along with the two other climate cases pending before the Grand Chamber, in a hearing to be held on 9 April 2024 at 10:30 a.m. The judgment and a summary were made available on the Court’s HUDOC database immediately after the hearing.

Type of Forum:
Regional

Status of case:
This case was communicated to the respondent State, Switzerland, on 17 March 2021. On 26 April 2022, a Chamber of the Court relinquished jurisdiction in favour of the Grand Chamber, held a public hearing in this case on 29 March 2023. A webcast of the hearing is available here. On 9 April 2024, the Court issued its judgment in the case.

Suggested case citation:
ECtHR,Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, no. 53600/20, judgment (Grand Chamber) of 9 April 2024.

Links:

Webcast of the hearing:
To watch a webcast recording of the public hearing in this case, which was held before the Grand Chamber of the European Court of Human Rights on 29 March 2023, click here (available in French and English).

Last updated:
9 April 2024

Categories
2020 Climate activists and human rights defenders Domestic court Fossil fuel extraction Mexico Right to a healthy environment Right to health Separation of powers

Mexican Center for Environmental Law v Mexico

Summary:
This case revolves around the 2020 amendments to Mexico’s General Law on Climate Change, specifically the termination of the Climate Change Fund established in 2012. The fund’s purpose was to attract and direct resources, both national and international, towards climate change initiatives. The Mexican Center for Environmental Law (CEMDA) filed a petition seeking legal protection to annul this aspect of the reform, arguing that it was regressive in safeguarding the human right to a healthy environment and exacerbated transparency issues. The initial court ruling dismissed the request, stating that the reform did not impede any rights but rather reallocated resources to the Federal Expenditure Budget. CEMDA appealed to a Collegiate Tribunal, which, recognising the case’s significance, referred it to the Mexican Supreme Court. On 12 April 2023, the Supreme Court maintained that judges should not assess the suitability of public policies, emphasising that climate change strategy falls under the executive and legislative branches’ jurisdiction. The Court upheld the prior decision, rejecting CEMDA’s claim.

Claim:
The contention in this case asserts that eliminating the Climate Change Fund through the 2020 amendments to Mexico’s General Law on Climate Change infringes the constitutional right to a healthy environment. CEMDA contends that this modification impedes the effective addressing of climate change by dismantling a dedicated fund intended to attract public and private resources for climate-related actions. In addition, CEMDA maintains that the reform gives the government discretionary power to utilise these same resources to support fossil fuels, potentially putting Mexico’s international commitments to environmental preservation at risk. Thus, the fundamental issue at hand is whether the elimination of the Climate Change Fund breaches the constitutional right to a healthy environment.

Decision:
On 12 April 2023, the Mexican Supreme Court ruled that the elimination of the Climate Change Fund does not violate the constitutional right to a healthy environment. The Court held that it is not within the jurisdiction of judges to evaluate the suitability of public policies; such decisions fall under the purview of the executive and legislative branches. The Court emphasised that the modification of the strategy to combat climate change, including the dissolution of the Climate Change Fund, is a matter of public policy, and legislators have the freedom to determine appropriate mechanisms. The Supreme Court concluded that CEMDA’s arguments failed to demonstrate the unconstitutionality of the reform. Moreover, the Court found no evidence that the resources formerly allocated to the Climate Change Fund, post-modification, would not be used correctly, transparently, and equitably. Consequently, the lower court’s decision was upheld, and CEMDA’s claim was rejected.

Links:
The case documents are accessible via Climate Case Chart: Click here

Status of the case:
Decided.

Suggested citation:
Mexican Center for Environmental Law (CEMDA) v Mexico [2020] Amparo No 1200/2020, decided 12 April 2023.

Last updated:
12 December 2023.

Categories
2022 Chile Domestic court Emissions reductions/mitigation Gender / women-led Non-discrimination Right to a healthy environment Right to health Right to life Separation of powers

Women from Huasco & Others v. Government of Chile & Ministries of Energy, Environment and Health

Summary:

On 25 November 2021, a group of women from the city of Huasco, alongside Doris Zamorano, a member of a civil society organization in Huasco, brought a constitutional action against Chile’s omission in coordinating the early closure of two coal-fired power plants. The Chilean government had signed closure agreements with owners of various thermoelectric power plants, but the two plants in question were absent from these agreements. They would be subject to the general clause requiring closure of all coal-fired power plants by the year 2040. The petitioners argued the emissions from the powerplants and the uncertainty as to their closure in advance of the year 2040 contributes to interferences with their exercise and enjoyment of fundamental rights. In particular, they point to the governmental authorities’ awareness about the persistent local air pollution and treatment of Huasco as a ‘sacrifice zone,’ as well as Chile’s climate mitigation commitments.  

On 2 May 2022, the Court of Appeals of Copiapo dismissed the petition on the ground that adjudication of the issues raised by the petitioners was beyond its competence. The petitioners have filed an appeal against this decision before the Supreme Court of Chile.

Claims:

The applicants argue that the State’s omissions consist in its failure to close two coal-fired power plants, failure to justify the exclusion of the two power plants from the list of plants due to be closed earlier than 2040 pursuant to its climate policy, and toleration of emissions from the two power plants despite no compensation being granted for the negative environmental impacts from their operation. The petition alleges that these omissions violate their constitutional rights to equality, to life, physical and psychological liberty, to an environment free from contamination, and to the protection of their health, as well as a breach of the State’s administrative duty not to act arbitrarily. In support of the latter contention, the petitioners relied on the administrative law principles of service of the human person, coordination between State organs and the environmental principles of prevention and precaution. Further, they argued that the normative content of the State’s duty were to be informed by Sustainable Development Goals, International Labour Organisation Guidelines on Just Transition, UN Framework Convention on Climate Change, Paris Agreement and Chile’s 2020 NDC Communication under the Paris Agreement. By way of evidence, the petitioners relied on reports of high levels of air pollution in the city of Huasco, and a comparative analysis of morbidity rates and incidences of respiratory illnesses in Huasco and Caldera, a similar city that was not in the vicinity of coal-fired power plants.

The petitioners requested the Court of Appeals of Copiapo to order the concerned state organs to (i) establish and implement a plan to effect the early closure of the two power plants, and (ii) establish a compensation plan for historical and current emissions of the power plants to redress the environmental and health-related impacts.

In his reply, the Minister of Energy challenged the appropriateness of a judicial review of complex public policies which were the result of a democratic and representative participative process. The Minister also elaborated on the procedural history and content of the government’s policy on decarbonisation, and the limits of the legal competences of the various Ministries vis-à-vis regulation of private actors in the energy sector, to rebut the petitioners’ arguments about the State’s breach of administrative duties. The reply submitted by the Minister of Environment argued that there is no omission attributable to the Ministry of the Environment since regulation of power plants falls within the authority of the Ministry of Energy, and that environmental management instruments were enacted to improve the air quality in Huasco. The Minister of Health submitted a similar reply. The Undersecretary General of the Presidency argued that State authorities lack the power to order the early closure of the said power plants, and that all of the authorities named in the petition had taken relevant measures in relation to the factual situation described by the petitioners.

Decision:

On 2 May 2022, the Court of Appeals of Copiapo rendered its decision wherein it rejected the petition. The Court noted that petitioners’ action for constitutional review of the State’s omission suggests that they disagree with its actions which form part of the public policy on decarbonisation of the country. However, this policy was developed and implemented with the participation of various state organs (with the Ministry of Energy being at the head of them) and it is not for the Court to substitute itself for them and order a replacement or modification of such policy. The Court also noted the involvement of non-State stakeholders, including both actors from the industry and civil society, in the establishment of the decarbonisation policy.

Additionally, with respect to closure of power plants, the Court noted that State organs do not have the authority to demand closures and that such an outcome can only be achieved through agreements between the State and the concerned owners of the power plants. The Court concluded that the fact that the agreement concluded between the State and the owner of the two power plants in question does not envisage a concrete plan for their closure, as it does for some other power plants, does not evince arbitrariness.

Links:

The case documents are accessible via Climate Case Chart (click here).

Status of the case:

The case is pending in appeal before the Supreme Court of Chile.

Last updated:

08 August 2023.

Categories
2023 Biodiversity Children and young people Deforestation Domestic court Emissions reductions/mitigation Farming Indigenous peoples' rights Loss & damage Right to a healthy environment Sea-level rise Separation of powers Standing/admissibility United States of America Victim status Vulnerability

Navahine F., a Minor v. Dept. of Transportation of Hawai’i et al.

Summary:
In January 2022, fourteen young people filed suit against the Department of Transportation of the US state of Hawai’i, its Director, the state’s Governor, and the State itself. In Hawai’i Circuit Court, they alleged that the state’s transportation system violated the Hawai‘ian Constitution’s public trust doctrine and the right to a clean and healthful environment that it enshrines. The plaintiffs argued that the state and its authorities had “engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation projects that lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions”. Arguing that Hawai’i was the most carbon-dependent state in the nation, they sought declaratory and injunctive relief. They made a variety of arguments about the destruction of the Hawai’ian environment, coral reefs, native species of plants and marine life, and beaches; about their health and well-being, including about climate anxiety and about existing health conditions that are aggravated by the effects of climate change; about flooding and its impact on their ability to go to school; about water and food security, including impacts on traditional food sources, traditional and indigenous ways of life and culture; about wildfires; and about climate anxiety.

Claims made:
The plaintiffs note that Article XI, section 1 of the Hawai’i Constitution requires Defendants “[f]or the benefit of present and future generations,” to “conserve and protect Hawai’i’s natural beauty and all natural resources.” Article XI, section 1 further declares that “[a]ll public natural resources are held in trust by the State for the benefit of the people.” The Constitution also explicitly recognizes the right to a clean and healthful environment. Noting the special vulnerability of Hawai’i to climate-related ecological damage, including from sea-level rise, and the disproportionate harm to children and youth, including the lifetime exposure disparities concerning extreme events such as heat waves, wildfires, crop failures, droughts, and floods, they allege that the state of Hawai’i, through its Department of Transportation, has “systematically failed to exercise its statutory and constitutional authority and duty to implement Hawai’i’s climate change mitigation goals and to plan for and ensure construction and operation of a multimodal, electrified transportation system that reduces vehicle miles traveled and greenhouse gas emissions, and helps to eliminate Hawai’i’s dependence on imported fossil fuels”.

Ruling on Motion to Dismiss:
On 6 April 2023, the First Circuit Court rejected the respondent’s motion to dismiss the case for failure to state a claim. The state had argued that the public trust doctrine did not apply to the climate, “because climate is not air, water, land, minerals, energy resource or some other “localized” natural resource.” It had also argued that any efforts by the state would not have an impact on climate change given the scale of the problem.

The Court held in this regard that, in any event, the state as trustee had an obligation to keep its assets, i.e. its trust property, from falling into disrepair. It thereby rejected the argument that climate change was “too big a problem” and the idea that the state had no obligation to reasonably monitor and maintain its natural resources by reducing greenhouse gas emissions and planning alternatives to fossil-fuel heavy means of transportation. The Court also recognized that “the alleged harms are not hypothetical or only in the future. They are current, ongoing, and getting worse.”

On the argument that the applicants did not have a sufficient interest in the case, the Court held that the plaintiffs “stand to inherit a world with severe climate change and the resulting damage to our natural resources. This includes rising temperatures, sea level rise, coastal erosion, flooding, ocean warming and acidification with severe impacts on marine life, and more frequent and extreme droughts and storms. Destruction of the environment is a concrete interests (sic).”

Finding that arguments based on the political question doctrine were premature in this case, and citing case-law finding that this doctrine does not bar claim based on public trust duties, the Court denied the motion to dismiss the case.

Trial date set:
It was announced in August 2023 that trial dates for this case had been scheduled for 24 June-12 July 2024 at the Environmental Court of the First Circuit for Hawai’i. This would make this only the second-ever constitutional rights climate case to go to trial in the United States, after the Held and others v. Montana case. The case will be heard by First Circuit Judge John Tonaki.

Further information:
For the ruling of the First Circuit Court, see here.

Suggested citation:
First Circuit Court of the State of Hawai’i, Navahine F., a Minor v. Dept. of Transportation et al., Civ. No. 1CCV-22-0000631, ruling of 6 April 2023.

Last updated:
16 August 2023

Categories
2023 Domestic court Emissions reductions/mitigation Margin of appreciation Paris Agreement Separation of powers Spain Standing/admissibility Victim status

Greenpeace Spain et al. v. Spain

Summary:
In 2020, three environmental NGOs (Greenpeace, Ecologistas en Acción and Oxfam Intermón) challenged the level of ambition of the Spanish government’s domestic greenhouse gas emissions reductions targets in what has been described as the first-ever Spanish climate case. At the material time, the Spanish ambition was to reduce emissions by 23% by 2030 (compared to 1990 levels); the three NGOs argued that this target should have been more ambitious, at 55%. In the absence of any response to the challenge by the Government, in September 2020, the three NGOs filed an administrative appeal to the Spanish Supreme Court. In 2023, the Supreme Court dismissed the case, with the plaintiffs announcing their intention to seize the European Court of Human Rights in Strasbourg.

Claims made:
These proceedings challenged delays in the adoption of the National Integrated Energy and Climate Plan (‘Plan Nacional Integrado de Energía y Clima’ or PNIEC), as required under European Union law (by 31 December 2019, see EU Regulation 2018/1999), as well as its low level of amibition. The Spanish government missed this deadline, only transmitting its PNIEC to the European Commission on 31 March 2020. In their pleadings, the applicants argued that the Spanish state must take more ambitious measures in order to guarantee respect for human and environmental rights for present and future generations.

Ruling:
On 24 July 2023, the case was decided by the Spanish Supreme Court, which rejected the appeal in full. The Court noted the formal nature of the complaints about delays in the adoption of the plan, and emphasized the short time frame for the adoption of the PNIEC imposed by EU law, as well as the complexity of decision-making within multi-level governance frameworks, which meant that the plan could not be considered void as a whole.

As concerns the level of amibition of the plan, the Supreme Court noted the need to decide this case under Spanish law, and not the case-law from other jurisdictions that had been cited by the applicants; it also noted the need to respect the concrete legal obligations that Spain had assumed under the Paris Agreement, as well as the need to balance climate action with the interests of a sustainable economy.

The Court held that the State had a wide margin of discretion in this context, and that the case was asking it to exceed its role by not only declareing an acceptable emissions target, but accordingly by imposing far-reaching changes to Spain’s economic policy. It noted that while the targets under the Paris Agreement were minimum targets (“at least”), as were those under EU law, the Spanish legislator had chosen to adhere to these minima, and not to exceed them.

On the fundamental rights claim, the Court referred to EU law on locus standi, especially the Armando Carvalho case. It emphasized the need to prevent voiding the criterion of direct and individual concern. Accordingly, it found that the alleged infringement of human rights by the PNIEC was not sufficient in itself to render these claims admissible. The decision to adhere to the minima set out under EU law could not be considered arbitrary, but instead constituted a legitimate exercise of the Spanish government’s constitutional powers.

Further proceedings:
After the ruling was issued, Lorena Ruiz-Huerta, counsel for the plaintiff organizations, announced their intention to take this case to the European Court of Human Rights in Strasbourg in order to “force the State to protect the human rights that are seriously threatened by climate change”.

Suggested citation:
Spanish Supreme Court, Greenpeace Spain et al. v. Spain, no. 1079/2023, 24 July 2023, ECLI:ES:TS:2023:3556.

Further information:
For the Supreme Court’s ruling (in Spanish), see here.

The applicants’ pleadings (in Spanish) are available via ClimateCaseChart.com.

Last updated:
4 August 2023

Categories
2020 Canada Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Non-discrimination Right to life Separation of powers

Lho’imggin et al. v. Canada

Summary:
This case was brought by two houses of the Wet’suwet’en indigenous group against Canada on 10 February 2020. The plaintiffs argue that the Canadian government has violated their constitutional and human rights by failing to meet its international commitments to reduce greenhouse gas emissions. They argue that the effects of warming are already being felt on their territories, including in the form of negative health effects. They also argue that the historical treatment and ongoing discrimination against indigenous peoples in Canada exacerbate the trauma of climate change. They invoke, among other things, their rights to life, liberty and security of person, and the right to equality.

The Federal Court granted a motion to strike out the claim on 16 November 2020, finding that the case was not justiciable, lacked a reasonable cause of action, and did not seek legally available remedies. The plaintiffs appealed to the Federal Court of Appeal on 10 December 2020; the appeal was still pending in August 2022.

Relief sought:
The applicants seek several different forms of relief. These include declaratory relief concerning Canada’s obligations to reduce its emissions and respect the plaintiffs’ rights, including the rights of future member of the Wet’suwet’en indigenous group. The plaintiffs also seek an order requiring the government to amend its environmental assessment statutes that apply to extant high GHG emitting projects, and an order requiring a complete, independent and timely annual account of Canada’s cumulative greenhouse gas emissions in a format that allows a comparison to be made with Canada’s fair carbon budget.

Findings of the Federal Court:
Among other things, the Federal Court found that “this matter is not justiciable as it is the realm of the other two branches of government. This broad topic is beyond the reach of judicial interference. [It did] not find that there is a sufficient legal component to anchor the analysis as this action is a political one that may touch on moral/strategic/ideological/historical or policy-based issues and determinations within the realm of the remaining branches of government.” It also found, concerning this case, that “not only is there not sufficient legality, but the remedies sought are not appropriate remedies, but rather solutions that are appropriate to be executed by the other branches of government.”

Further reading:
The full text of the judgment of the Federal Court is available via climatecasechart.

Suggested citation:
Federal Court of Ottowa, Lho’imggin et al. v. Her Majesty the Queen, Order of 16 November 2020, 2020 FC 1059.

Categories
2021 Children and young people Domestic court Right to a healthy environment Right to life Right to property Separation of powers United States of America

Reynolds and Others v. Florida

Summary:
In this case, eight young people asserted that the “deliberate indifference” of the US state of Florida, its Governor Ron DeSantis, and other state agencies had violated their “fundamental rights of life, liberty and property, and the pursuit of happiness, which includes a stable climate system”. On 9 June 2020, the Circuit Court for Leon County dismissed their case, finding that it could not grant the relief requested in light of the separation of powers clause contained in the state’s constitution. The claims in question were considered nonjusticiable because they “are inherently political questions that must be resolved by the political branches of government.”. On appeal, on 18 May 2021, the First District Court of Appeal rejected the applicants’ appeal, affirming the lower court’s finding that the lawsuit raised nonjusticiable political questions.

Further information:
Both the Circuit Court’s judgment and the Court of Appeals’ affirmation of the first-instance judgment can be found at www.climatecasechart.com.

Categories
2022 Adaptation Czechia Deforestation Domestic court Emissions reductions/mitigation European Convention on Human Rights Evidence Paris Agreement Private and family life Right to a healthy environment Right to health Right to life Right to property Separation of powers Standing/admissibility Victim status

Klimatická žaloba ČR and others v. Czechia

Summary:
This case was brought by a group of applicants, named in the brief as the climate action NGO Klimatická žaloba ČR, a municipality, two peasants, several foresters, and a man from Prague who suffers from environmental anxiety. The case was brought on 21 April 2021, and contested failures to provide adequate and necessary mitigation and adaptation measures to protect against the adverse effects of climate change. It alleged that the Government’s failures to adequately address climate change violated the rights to life, health, a healthy environment, and other rights guaranteed by the Czech constitution, the Czech Charter of Fundamental Rights and Freedoms, and the European Convention on Human Rights.

The applicants sought a declaration that the Czech government failed to respect their rights by ensuring sufficient emissions reductions to meet the Paris Agreement’s targets. They also sought an order setting the Czech carbon budget at 800 Mt CO2 from January 2021 until the end of the century.

In June 2022, the court of first instance issued a judgment that was partially favorable to the the applicants. However, in February 2023 the court of second instance annulled the first-instance judgment, referring the case back to the first-instance court. More details about the judgments follow below.

Judgment of 15 June 2022:
On 15 June 2022, the Municipal Court of Prague issued a (now overturned, see below) judgment in this case. It rejected the action against the Government of the Czech Republic. However, it found that the Ministry of the Environment, the Ministry of Industry and Trade, the Ministry of Agriculture and the Ministry of Transport had failed to provide specific mitigation measures leading to a 55% reduction in greenhouse gas emissions by 2030 compared to 1990 levels. These authorities were required to have a complete and precise plan of measures in place to meet this goal, which was not the case at the time of judgment; they were accordingly enjoined to cease their interference with the applicants’ rights by adopting an adequate mitigation plan.

Admissibility:
Citing the environmental case-law of the European Court of Human Rights, the court noted that inaction in protecting the environment may violate human rights, as well as the right to a favourable environment under Article 7 of the Czech Constitution and Article 35(1) of the Czech Charter of Fundamental Rights and Freedoms. It accordingly recognized the standing of the individual applicants in the case. Because domestic law grants associations the right to bring cases not only concerning their own rights, but also concerning those of their members, and because the court found that climate change affects the entire territory of the Czech Republic, the applicants associations had standing to bring an interference action. Likewise, the applicant municipality had standing, given that climate change can affect the legitimate interests of citizens living in its territory and that its basic duty “is to take care of the overall development of its territory and the needs of its citizens, and to protect the public interest. It is therefore desirable that a municipality should be able to take care of the rights of its citizens to a favourable environment in the same way as an environmental association”.

Reasoning on the merits:
In its (now-overturned) judgment, the court noted that the Czech Code of Administrative Justice does not allow an action for interference to protect the rights of third parties (actio popularis / public interest litigation), but found that the applicants’ affectedness in the present case was sufficiently direct, noting that “the link between climate change and human (in)action is so compelling and close that, when considering the directness of interference, the two are an inseparable whole.” It argued that the applicants had suffered a direct interference with their right to a favourable environment, given that the case was about climate change’s “local adverse manifestations” (para. 198). Citing the precautionary principle (para. 211) and IPCC reports (para. 216-220), the court went on to find that “living in sustainable climatic conditions [is] a prerequisite for the undisturbed exercise of other human rights, such as the right to life, health, property rights, the right to engage in economic activity” (para. 210). It recognized that climate change has adverse impacts on human living conditions, including through heat stress, the spread of infectious diseases, and reduced diversity and access to food (para. 221). Citing the Urgenda case, the court went on to find that climate change interfereed directly with the applicants’ right to a healthy environment (para. 224-225), and that “[r]esidence, age, sex, health, etc. only determine the extent of the interference” (para. 223).

The court found that while the Paris Agreement was part of the domestic legal order, and bound the Czech Republic, its 2 degree target was not legally binding. However, drawing on scholarship, the IPCC, and the Urgenda judgment, the court found that the obligation in Art. 4(2) of the Paris Agreement to implement mitigation measures to achieve the Czech nationally determined contribution (NDC) was binding on the State (para. 248-250). Although the Czech Republic had not in fact submitted its own NDC, the EU had set emissions levels for all Member States, and the resulting emissions reduction target was individually applicable to the Czech Republic (para. 251). Citing developments taking place as part of the EU’s Green Deal, it found that “the Defendants should have established a plan for achieving the Paris Agreement’s (EU NDC) 2030 target without undue delay” (para. 280). It noted too that “the Defendants have no reasonable reason to wait until 2023 to develop and then implement the measures.” Failing to fulfil the corresponding emissions reductions obligations, the court held, constituted a violation of the applicants’ rights.

The Municipal Court agreed with the applicants and the scientific studies, including IPCC reports, that they had submitted in evidence “that a global carbon budget of 900 GtCO2 since January 2018 is consistent with the Paris Agreement commitment” (para. 239). The court extensively engaged with the different evidentiary bases of the argument.

In terms of adaptation measures, the court found that the Defendants had not breached their obligation to adopt and implement adaptation measures under Article 5(4) of the European Climate Law. The Defendants had adopted an extensive action plan reflecting adaptation gaps, based on scientific knowledge, and involving a range of public and private actors (para. 329).

In a paragraph of central importance, and revolving around the “drop in the ocean” argument, the court held that:

“[C]limate change would also occur if the defendants acted to mitigate and adapt to climate change. However, if the defendants had properly fulfilled their obligations, climate change would have been milder and averting dangerous climate change under Article 2(1)(a) of the Paris Agreement would have been more likely. This conclusion follows from the non-negligible impact of human activity on climate change. Defendants’ failure to act is therefore a partial cause of the current adverse impacts of climate change. The Municipal Court notes that the individual responsibility of the States Parties to the Paris Agreement cannot be excluded by reference to the level of emission contributions of other States. Such an approach would make effective legal protection impossible where the State in question is not a significant emitter of greenhouse gases on a global scale and would be inconsistent with the principle of common but differentiated responsibility of the Parties under Article 2(2) of the Paris Agreement” (para. 325).

This quotation, and those throughout this post, come from the unofficial translation of the judgment provided by the applicants.

The court did not examine the complaints concerning the rights to property, to private and family life, to life and health, to carry out economic activity and to self-government.

Remedies:
The Court issued not only a declaratory but also a constitutive ruling, meaning that it instructed the authorities to remedy their inaction and adopt a mitigation plan that is sufficiently specific within the meaning of Article 4(2) and (14) Paris Agreement and aims at meeting the EU NDC target. The choice of specific mitigation measures leading to a 55% reduction in greenhouse gas emissions by 2030 compared to 1990 was left to the defendants’ discretion. The court held that it “could not, in view of the principle of separation of powers, order the defendants to develop specific mitigation measures” (para. 334). It did, however, reimburse the costs of the proceedings.

Judgment of 20 February 2023:
On 20 February 2023, the Supreme Administrative Court of the Czech Republic, examining an appeal on points of law by the Ministry of the Environment, annulled the decision of the Municipal Court of Prague and referred the case back to it. The decision to overturn was mainly based on the fact that the obligation to reduce GHG emissions by 55% is collectively shared by all Member States of the European Union, but a specific distribution of these obligations has not yet been establish by EU law or policy. The Supreme Administrative Court also found that the applicants had not sufficiently specified the areas in which the defendants had allegedly breached their obligations by inaction, therefore interfering with the rights of the applicants.

Date filed:
21 April 2021

More information:
The complaint is available here (in Czech).

An unofficial translation of the first-instance judgment into English and a press release are available from the applicants.

The second-instance judgment is available here (in Czech, through the Sabin Center for Climate Change Law’s Climate Case Chart database). A commentary of this decision by a lawyer member of Klimatická žaloba ČR is available here (in Czech).

Suggested citations:
Municipal Court of Prague, Klimatická žaloba ČR and others v. the Czech Republic and others, Judgment No. 14A 101/2021 of 15 June 2022.

Supreme Administrative Court of the Czech Republic, Klimatická žaloba ČR v Czech Republic [2023] 9 As 116/2022 – 166 of 20 February 2023.

Last updated:
15 June 2023