Climate change litigation has become a trend in international law, where legal action is taken to hold not only business organisations but also governments accountable for polluting activities. Climate litigation is a term referring to legal practices towards climate change mitigation. There is the conception that political views are evermore delaying the action on climate change, this article discusses how a movement towards a green economy can disproportionally affect EU Member States, and how a better course of action can be made.
European governments are under scope to uphold regulatory requirements and prevent foreseen consequences. The EU as the main driver of lowering climate change effects with the reduction of GHG gas emissions, has put in efforts towards a Europe without gas emissions by 2050. Unfortunately, the youth climate movement has not been satisfied as matters are not moving fast enough. Although there are instruments such as the UNFCCC, the Paris Agreement, the Kyoto Protocol, and the European Green Deal, the necessary mechanisms are not emplaced for governments to take the best action, although the goal are clear and states have to take the necessary steps to ensure these are respected, there is an unequal position at how all states should act as unfortunately there is no policy that is a “one size fits all”.
In 2019, the Urgenda Climate case made history as the first ever case brough forward against a government who was not doing enough to prevent climate change. The lack of climate action was then made a reason to bring forward governments to court in order to hold them accountable to confirm that there was enough being done to prevent climate change. Thus, for the first time ever, it can be seen how environmental law that is a body composed of mostly soft law, has had a major impact on global affairs. It is no longer about protecting an environment but takes a look at the nexus of environment with human rights. This case has shown how the international legal system holds great influence in political discourses. The question that now comes is how can European policy makers avoid the uprising of lawsuits that can come to Europe. As it stands, more than 60 cases were brought to the European Court of Human Rights, already showing the steps many are willing to take to ensure a sustainable future for the next generations.
This landmark case can become a base for climate policies beyond the Dutch borders. It opened the eyes of many as it showed how a state is also a minor contributor to climate change if it does not do enough to cut emissions, regardless if it is a minor contributor to global warming and climate change.[1] This proved how international courts are gaining momentary force on dealing with issues that pertain to domestic governments. There might be doubts on how courts have such a great influence in political matters, yet when arguments such as human rights can be called upon in an European country it is under the court’s jurisdiction. The outreach of this form of litigation is through tort law that needs as sufficient proof the casual link between the damage done by a company to the harm received to another party. It was common to see how civil societies, NGO, or international organisations would go after private individuals, however, now a state can be called upon and put on the spotlight as a guilty party for non-action.
It should not be overlooked how steps towards a more green economy ends up becoming a form that enhances vulnerability of Member States. In fact, the local authorities end up becoming pressured by external forces undermining their conduct. For example, in 2021 the company Shell was under reduction obligations that it did not comply with, this resulted in imminent violation.[2] It was deemed that the Belgian authorities were at “fault”( within the meaning of article 1382 of the Old Civil Code) as they were not prudent in implementing climate policies. Companies such as Shell, were under the thumb of both hard and soft law, it was finalised that Shell must cut 45% of carbon dioxide emissions by 2030. Although this was a correct method to go about the issue it has to be shown how there was an absolute downfall for private companies to have to comply with the reduction of CO2 obligations. Unfortunately, European countries face the lack of policy guidance, not giving space for adaptive measures to be taken. Lack of consistent coordination between states in terms of climate change actions not being sufficiently clear. Adaptation strategies to prevent climate litigation to take place is construed of multiple economic factors. For instance, fines on multi businesses cannot be a solution as there cannot be a standard finning system them would fit all EU countries.
The strategy behind climate change litigation proves as a problem for EU legislators, in which there is contradiction on the outreach for the goals to reduce carbon emissions by 2050 whilst there are minimum efforts to ensure the objectives are met. At the end of the day, there is still the obligation to exercise due diligence in to make sure there are no transboundary harms to other nations. The best course of action would be through a development of a network of information that could end up helping in preventing transboundary effects to other nations. Moreover, having transparency and growing interest in sustainable businesses from the market participants would become a great way to move forward with climate procedures being taken internally, hence reducing chances of a lawsuit.
[1] https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/
[2] https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBDHA:2021:5339
By The European Institute for International Law and International Relations.
