Energy and climate change: The most significant climate change litigation decision yet?

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20), the European Court of Human Rights (ECtHR) issued arguably the most impactful and far-reaching ruling on climate change by any European court. The decision has the potential to impact individuals, businesses, and governments in a radical way by casting the law (and courts) rather than governments (and parliaments) as the ultimate body responsible for deciding whether public authority action and inaction are appropriate in the context of climate change. Furthermore, if NGOs determine that a public authority has not acted appropriately, they now have a basis to intervene.

Facts

Verein KlimaSeniorinnen Schweiz (i.e. “the applicant association”) and four of its members (i.e. “the individual applicants”) applied to the ECtHR alleging that their human rights were being violated by Switzerland’s failure to take sufficient action against climate change. The individual applicants consisted of female senior citizens who suffer from health issues exacerbated during heatwaves – one of whom died during the proceedings. The applicant association was a Swiss non-profit organisation, which advocates for climate controls and represents over 2,500 women with an average age of 73.

On 25 November 2016, the applicants requested the Federal Council, Federal Department of the Environment, Transport, Energy and Communications, Federal Office for the Environment and the Federal Office for Energy in Switzerland to provide legal remedies regarding omissions by the Swiss Confederation vis-à-vis climate protection. The application was dismissed, as were appeals on 25 April 2017, 27 November 2018, and 5 May 2020.

The applicants turned to the ECtHR, lodging their application on 26 November 2020.

The application accused the Swiss Confederation of failing to enact and implement adequate climate change legislation to effectively protect life (Article 2), ensure respect for private and family life (Article 8), and provide proper access to courts (Article 6).

The Chamber to which the application was originally allocated relinquished jurisdiction in favour of the Grand Chamber. The President of the ECtHR decided that “in the interests of the proper administration of justice” the case should be assigned to the same composition of the Grand Chamber as the cases Carême v. France and Duarte Agostingo and Others v. Portugal and 32 Others, which also concerned the failure of States to take sufficient actions to tackle climate change. The ECtHR handed down judgments in all three cases on 9 April 2024.  The cases against France and Portugal were found to be inadmissible.

Decision

In its decision, the ECHR enunciated that the task of the judiciary is to ensure the necessary oversight of compliance with legal requirements and nothing more. The ECtHR made a distinction with earlier environmental case-law to take into account the particularities of climate change and various European Convention on Human Rights (ECHR) issues, which may arise in the context of climate change.

Article 34 - Victim Status

Each applicant contended that they were a victim within the remit of Article 34.

The ECtHR considered that to be a victim in the context of climate change, an individual must suffer a high intensity of exposure to the adverse effects of climate change or there must be a pressing need to ensure the individual protection of the applicant. It held that the individual applicants failed to fulfil this particularly high criteria.

However, the ECtHR allowed the applicant association to bring the claim, given the shared human concern and need for “intergenerational burden-sharing” precipitated by climate change. It was also noted that associations are more able to bear the challenge and cost of climate change litigation than individuals who suffer personally. The ECtHR (drawing on the Aarhus Convention) clarified the test it used to evaluate an association’s standing:

502. The association in question must be:

1. lawfully established in the jurisdiction concerned or have standing to act there;
2. able to demonstrate that it pursues a dedicated purpose in accordance with its statutory objectives in the defence of the human rights of its members or other affected individuals within the jurisdiction concerned, whether limited to or including collective action for the protection of those rights against the threats arising from climate change; and
3. able to demonstrate that it can be regarded as genuinely qualified and representative to act on behalf of members or other affected individuals within the jurisdiction who are subject to specific threats or adverse effects of climate change on their lives, health or well-being as protected under the Convention.

The ECtHR also noted that in the context of climate change, an association will not be subject to the requirement to show that the members on behalf of whom it brings the case must meet the victim-status requirements as individuals.

Article 2 - Failing to Protect Life Effectively

The ECtHR chose not to examine the application in relation to Article 2, noting that the relevant principles are similar to those under Article 8.

Article 8 - Respect For Private and Family Life

The ECtHR found that there was a violation of the right for respect for private and family life under Article 8.

It held 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”.

As a result, the ECtHR ruled that Switzerland owed positive obligations concerning climate change under Article 8: “the State’s obligation under Article 8 is to do its part to ensure such protection. In this context, the State’s primary duty is to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. This obligation flows from the causal relationship between climate change and the enjoyment of Convention rights”.

The ECtHR held that Switzerland failed to comply with this newly stated positive obligation, as “critical gaps” existed in its climate change legislation. Such failures included not quantifying a carbon budget or limitations on GHG emissions and failing to meet its own past GHG emission budgets.

The ECtHR acknowledged that states have a wide discretion to adopt their own legislation and mitigation principles. Switzerland, however, had gone beyond this discretion and failed to implement plans to reach net neutrality in a timely manner. According to the ECtHR, Switzerland had failed to “to act in good time and in an appropriate and consistent manner regarding the devising, development and implementation of the relevant legislative and administrative framework”.

Article 6 - Proper Access to Court

The applicants further alleged that their right to a fair trial had been breached. Although the Swiss courts had proffered reasoning for dismissing the individual applicant’s application (their action was considered an actio popularis not appropriate for legal remedy), no such logic was presented for the applicant association.

In not giving a rationale for the dismissal, the ECtHR considered that the Swiss courts had fettered the applicants’ right to access a court and Article 6 was violated.

Articles 41 and 46 – Just Satisfaction and Binding Force and Execution of Judgments

The applicant association did not submit a claim for damages. Instead, it requested the Court to indicate that “the State would need to take all suitable measures to allow it to achieve a level of annual emissions compatible with its target of attaining a minimum reduction of 40% in GHG emissions by 2030, and carbon neutrality by 2050.”

Given the complexity and the nature of the issues raised in the application, the ECtHR found that it could not prescribe specific measures to be implemented by a State to effectively comply with its judgment and that a State would be better placed to assess the specific measures to be taken to comply with the ECHR requirements.

Dissent

Judge Tim Eicke of the UK issued a partial dissent, stating that the ECtHR was wrong to extend the meaning of Article 8 in this way and arguing that the adoption of a far narrower approach in line with the ECtHR’s previous jurisprudence was a more appropriate remedy.

Judge Eicke highlighted the ECtHR’s subsidiary role to the States in relation to questions of social and economic policy, which required the careful weighing up of competing rights and interests. According to Judge Eicke, the 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”, as well as the new corresponding “primary duty” imposed on the Contracting Parties had no basis in Article 8 or any other provision of or Protocol to the ECHR.

Comments

While it remains to be seen how this decision will be implemented, it has the potential to be the most far reaching and controversial climate change decision of any European court. In summary:

1. Article 8 has been interpreted to create 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”. This could create a positive obligation on States who need to freshly consider whether their legislation and mitigation plans reach this requirement and are compliant with the new standard.
2. In this respect, the 46 states that are party to the ECHR must “adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change”. Considering the ECtHR’s findings, States may consider implementing more rigorous legislation relating to regulation of GHG emissions, along with stricter enforcement mechanisms to ensure compliance.
3. Pivotally, the above obligations are relevant not just to emissions created within a State’s territory, but also to embedded emissions (i.e. emissions generated by imports into the State). As such, the obligations have the potential to impact a State’s foreign policy and laws concerning trade and tariffs.  These regulatory changes could lead to potential claims against States by foreign investors if they are implemented in a manner that breaches the State’s obligations under relevant bilateral or multilateral investment treaties.
4. The concept of a victim under Article 34 has been expanded to include associations, even where that association represents members who would not be able to invoke victim status as individuals. This is the case despite the fact that Article 34 stipulates that an association should be a victim itself. This definition has the potential to vastly increase the pool of potential climate litigants. Furthermore, in granting associations standing in this manner, the ECtHR has created a potential path for actio popularis claims, which it professes to seek to curb.
5. The decision will impact the 46 member States who are parties to the ECHR, including the EU, the UK, Azerbaijan, Türkiye and Georgia. 
6. For those in the UK, section 6 of the Human Rights Act 1998 (HRA 1998) means that all public authorities (including the courts) have an obligation to act in a way that is compatible with Article 8. In addition, in considering what Article 8 means, the HRA 1998 requires that a court or tribunal must consider any judgment, decision, declaration or advisory opinion of the ECtHR. Although there is a debate about what this means, the starting point is that domestic courts should follow a clear and constant line of decisions, especially if the decisions emanate from the Grand Chamber. The Climate Change Act 2008 and associated law set out a mechanism for UK carbon budgets to 2050. The devolved nations have additional legislation. The Scottish Government recently announced eliminating its national 2030 greenhouse gas reduction target and is considering changing annual targets to five yearly budgets.  As a result of the above decision, there will be more scrutiny of whether existing approaches accord with the decision and whether the implementation of existing approaches are effectively applied.
7. The ECtHR’s decision garnered mixed reviews. For some, this has the potential to create a radical change in domestic law that may have a serious and wide-ranging impact on all areas of government (including creating positive obligations to act). For others, this is a clear elaboration and application of ECHR principles given the known and increasing risk associated with the present and long-term issues raised by climate change, which are unlikely to lead to any significant changes in the States’ policy.
8. This decision will doubtless be welcomed by many and criticised by others, but could have serious implications for complex polycentric decisions where it may elevate climate change above factors that do not benefit from protection.  For example, it may require a government to reduce the import of goods from outside its territory due to carbon footprint (even where those imports assist to alleviate poverty in developing countries with a view to materially enhancing standards of living and fair trade).
9. The ECtHR decision may also impact upon other climate change litigation pending before international courts and tribunals. On 29 March 2023, the United Nations General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice (ICJ) on the obligations of States regarding climate change.  The ICJ was asked to clarify “what are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations” and “what are the legal consequences under these obligations for States”. Similar requests for advisory opinions in relation to States climate change obligations are also pending at the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights. While the ICJ and other tribunals are not bound by the ECHtR decision, it may have a persuasive effect.

As a result of this decision, NGOs and courts will have an enhanced role in reviewing all aspects of government conduct concerning climate change objectives.  This is likely to be leveraged strategically by NGOs and create near term opportunities and risks for the private sector as well as significant challenges for governments in requiring consideration of climate change impact across a much wider range of policies than before.

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