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Climate Jurisprudence

With the climate conference in Paris and the entry into force of the agreement reached there, the basis for climate disputes arose. This term refers to the rapidly growing number of lawsuits over climate change, both to redress the effects of climate change and to put pressure on various actors to take more ambitious measures to tackle climate change. When it comes to climate justice, it is a broad term. This includes not only disputes in which citizens or environmental organizations hold a government or a company against it for alleged future damage to health and the environment due to climate change. This includes charges against fossil fuel or mining companies for the environmental and climate impacts of their operations, or against companies failing to comply with environmental and climate laws for alleged climate damage.

The People’s Climate Case is one of the most well-known climate disputes. In it, 36 people from different countries of the European Union (including Germany, France, Italy, Portugal and Romania) and beyond (such as Kenya and Fiji) together with an organization Saami Youth Association Sáminuorra faced the European Parliament and the Council. The resulting lawsuit is known as the People’s Climate Case. In it, these citizens, who worked mainly in the agricultural and tourism sector, argued together with the organization that their livelihoods are affected by climate change, among other things. In their view, the European Union would not do enough to combat dangerous climate change or to protect them from the effects of climate change. To this end, the EU target to implement the agreements made at the climate conference in Paris to reduce greenhouse gases by 40 percent by 2030 is insufficient, according to citizens. That is why the European Parliament and the Council have been brought before a European court and concrete measures have been demanded that will lead to a greater limitation of greenhouse gas emissions.

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The basis was Article 263 of the Treaty on the Functioning of the European Union (TFEU). However, according to the European court, a number of conditions must be met for a successful appeal to this article. One of the most important conditions is self-interest. Indeed, under the fourth paragraph of Article 263 TFEU, any natural or legal person may initiate proceedings against an act addressed to or directly and individually concerned with that person and against a regulatory act that is of direct concern to him. The conditions are directly and individually cumulative, that is, both conditions must be met. And the latter cumulative condition was not met in this case, according to the European court. The judge considered that the citizens, together with the organization, cannot be classified as the addressee of the disputed legislation, so that their appeal was declared inadmissible. The fact that citizens are affected in one way or another by climate change does not necessarily mean that their appeal is also admissible, even if they had bigger financial interests than common people, according to the European court. After all, if such a view were used, everyone would be admissible and Article 263 TFEU would thus lose its meaning.
Based on the People’s Climate Case, it thus appears that setting a climate claim in court is not yet so self-evident. Demonstrating direct self-interest is a major hurdle that the plaintiffs have to overcome. The same also applies to demonstrating a link between a cause (the policy act or lack thereof, or a business activity) and an effect (the expected or established damage to the environment or health due to climate change). It must also be made plausible that any judgment will contribute to avoiding the damage. It should be borne in mind that a judge cannot or may not take the place of the government or politicians. A judgment cannot therefore contain concrete policy measures.

Urgenda is another high-profile case that was pursued against the government due to insufficient climate policy. In the meantime, this climate case against the Dutch state about reducing greenhouse gas emissions by 25% in 2020 compared to 1990 has also gained international fame. This was the first case in Europe in which an NGO (St. Urgenda) and 886 citizens approached the government about the dangerous consequences of climate change and stated that the government has a duty of care and must therefore take action to protect the citizens. The reason behind this climate issue was an increasing number of disturbing reports from scientists and analyses from the IPCC, on the basis of which almost all countries of the world decided in Paris in 2015 that the global temperature rise should be limited as much as possible. According to the plaintiffs, the Dutch state admittedly recognized the urgency of the climate problem but took too few measures to prevent dangerous climate change. That is why the plaintiffs have started the Urgenda climate case against the Dutch state. On the basis of the unlawful act provision from the Dutch Civil Code, the court ruled in the first instance that the Dutch State has a duty of care, which it has not complied with due to insufficient action in the context of climate policy. According to the court, the Dutch state acted unlawfully against St. Urgenda and had to reduce greenhouse gas emissions by 25% in 2020 compared to 1990. The Dutch state appealed against this decision. However, on October 9, 2018, the appeal brought by the Dutch state was dismissed by the court of appeal. According to the Court of Appeal, the duty of care existed not only on the basis of the national provision, but also in view of human rights as enshrined in Articles 2 and 8 of the European Convention on Human Rights (ECHR). The Dutch state’s appeal in cassation was also to no avail and they were definitively wrong on 20 December 2019. Contrary to the People’s Climate Case, the Urgenda climate case was successful at the national level.

Dutch Environmental Defence (Milieudefensie)against Shell is a more recent challenge in terms of climate justice that citizens entered in the Netherlands. This time, however, it is a matter of Dutch Environmental Defence (Milieudefensie), a climate and environmental organization and 17,000 co-plaintiffs against a well-known company Shell. Again, the plaintiffs refer to it in 2015 by 196 countries signed climate agreement in Paris which agreed to as much as possible to limit the global average temperature increase, the dearest among 1.5 degrees. According to the plaintiffs, Shell says it embraces this climate agreement, but in practice, however, the opposite would appear, and Shell would continue to focus on extracting oil and gas, but also delaying environmental legislation for example the ‘regulatory chill’. Shell thereby causes serious climate damage, according to the plaintiffs. After all, they believe that Shell does not take its own responsibility not to harm society and the climate, while Shell as one of the largest polluters on earth (number 9 to be precise) does. That includes not only according to prosecutors respecting the climate agreement in Paris, but also the rights that are threatened under. That is why Milieudefensie and co-plaintiffs go to court. The underlying aim is that Shell is thus forced to causing dangerous climate damage or shifting. The actual requirement is that Shell 45% less CO2 emissions in 2030 compared to 2019. Some compensation is not applied in this case and is therefore tantamount to a change. The plaintiffs are in fact convinced that if Shell through this lawsuit is forced to take on would have to drill for oil and gas, this enormous impact on the climate. In essence, Milieudefensie’s climate case can be described as a preventive action to ensure that (further) climate damage is prevented.

Milieudefensie’s climate case against Shell is the first in history to require a company to bring its business plans into line with the Paris Climate Agreement or to adjust its business plans. However, the ruling in this case will undoubtedly also have consequences for other fossil fuel companies. If these companies do not take action of their own accord, they can be held similarly responsible in court for any dangerous climate damage they cause. With the continuation of this case by Milieudefensie, the tension is also increased for these companies to take action themselves and switch to, for example, other energy sources such as wind, sun and water. At the beginning of December, the case of Milieudefensie against Shell will be taken to court. Four hearing days are scheduled. The verdict will follow a few months later. These developments are closely followed by Law & More. Would you like to stay informed about developments in the field of climate justice? Are you a company that (possibly) will be faced with a similar procedure and do you want to know what your legal position is? Then contact Law & More. Our lawyers are experts in the field of sustainability and procedural law and are happy to help you.

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