Landmark ECtHR judgment turns the dial on climate change litigation

The Grand Chamber of the European Court of Human Rights has delivered its much-awaited judgments in three high-profile climate change cases.

 

Of the three, Verein Klima Seniorinnen Schweiz v Switzerland is likely to prove a landmark ruling for anyone involved in climate change and environmental litigation. Its headline conclusion is that Article 8 of the European Convention on Human Rights (“the Convention”) encompasses a right for individuals to effective protection from the state from the serious adverse effects of climate change. Across 650+ paragraphs, the Court has delivered a detailed and - at times robust - judgment highlighting the unique nature and effects of climate change, stressing the role governments and the courts need to play when responding to climate change, and analysing how those factors interact to impact the human rights of individuals and associations under the Convention.

The judgment is likely to lead to further litigation and this in turn is likely to increase the pressure on the UK Government to ensure that it continues to set clear targets and meet them, that it acts consistently when it comes to implementation, and that it makes policy in an open and transparent way. Whilst not quite throwing the door wide open, the European Court has given potential claimants something to work with – the vital next question is how courts in the UK will respond.

the background

The factual backgrounds of the complaints before the Court varied considerably, but at their heart, they all concerned questions of how Convention rights - in particular, Article 2 (the right to life) and Article 8 (the right to respect for private and family life) - are to be interpreted and applied in light of the effects of climate change.

The first action (“VKSS” or the “Swiss case”) was brought by four Swiss women aged over 80 and an association, Verein KlimaSeniorinnen Schweiz, which represents over 2000 Swiss older women. Their complaint centred on the fact that the Swiss authorities had not taken sufficient action to mitigate the effects of climate change, and that this was adversely affecting their lives, living conditions and health in breach of Articles 2 and 8. In particular, they argued that the Swiss government had failed to introduce suitable legislation or put in place proper measures to meet its climate change targets in line with international commitments. They raised a further Article 6 (access to justice) ground citing the failure of the Swiss domestic courts to properly consider their requests.

Duarte Agostinho and ors v Portugal and ors (“Agostinho”) concerned a complaint made by six children and young adults who argued that Portugal, along with 32 other states, had breached the Convention by failing to tackle greenhouse gas (GHG) emissions in line with their commitments under the Paris Agreement. The group argued that both the current and future effects of climate change were attributable to the respondent states, and were impacting their lives, well-being, mental health and the peaceful enjoyment of their homes.

A third complaint (Carême v France or “Carême”) related to France’s alleged failure to take appropriate steps to prevent global warming. The complainant, a former resident and mayor of the municipality of Grande-Synthe, argued that this amounted to a violation of Articles 2 and 8.

Given the overlapping nature of the substantive issues, the complaints were all heard and ruled on by the same composition of the Grand Chamber, and the judgments were handed down together on 9 April.

 

roadblocks for two complaints

The Agostinho and Carême complaints both came unstuck on not-wholly-unexpected procedural grounds.

The complaint in Agostinho was deemed inadmissible against the 32 states who were made respondents alongside Portugal on account of the fact that all the members of the complainant group were Portuguese. The Court drew a distinction between the responsibility for climate change (which all states shared) and the question of jurisdiction, and held that extending jurisdiction extraterritorially would lead to the unsatisfactory position of states having to meet obligations under the Convention even where they had no control over the applicants or the territory where the impact of climate change was being felt.

In any event, the complainants had failed to exhaust domestic remedies in Portugal before bringing the complaint to the Court. The Court reiterated the position that (a) it is not a court of first instance, and (b) it did not have the capacity, nor was its function to deal with the finding of basic facts which were properly within the domain of domestic courts.

The complaint in Carême was declared inadmissible because the applicant had no relevant links with Grande-Synthe (the region where he argued the impact of climate change arose) and, moreover, he did not currently live in France. Accordingly, the Court found – on a fairly conventional reading of the Convention – that the complainant did not have victim status under Article 34.

 

vkss - breaking new ground

It is the decision in the VKSS case that has attracted the most attention. The Court (by 16 votes to 1, with Judge Tim Eicke dissenting) made several key findings that are likely to be of interest to claimants and governments.  

Standing 

As a preliminary point, the Court found that the four individual complainants did not have the requisite victim status to bring a complaint because they had not demonstrated a high intensity of exposure to the adverse effects of climate change or a pressing need to ensure their individual protection. However, the Court accepted the standing of VKSS as a representative association after giving particular consideration to climate change being a “common concern of humankind” and “the necessity of promoting intergenerational burden-sharing in this context” (paragraph 499).

The Court’s finding reflects its concerted - and some commentators suggest contrived - effort to balance the risk of ruling out effective challenges by well-established organisations on the one hand, and the risk of opening the floodgates to climate change litigation on the other. It is worth noting that the Court does not establish a general right for associations to bring claims, and paragraph 502 in particular sets out a clear set of criteria that associations would need to meet to acquire victim status.

Climate change and Article 8

The key substantive conclusion from the Court was 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.” This is a notable evolution in the Court’s jurisprudence given the previous use of Article 8 in environmental contexts had been limited to harm from specific sources – where the harm can be localised and identified, and a clear causal link can be drawn between the harm and the effect e.g. exposure to pollution or environmental hazards.

The Court made a number of interesting observations: 

• While it acknowledged that addressing climate change will depend largely on the actions of the legislature and the executive, it noted that "democracy cannot be reduced to the will of the majority of the electorate and elected representatives, in disregard of the requirements of the rule of law" (para 412).
• The Court highlighted the “widely acknowledged inadequacy of past State action to combat climate change” and the fact that the threat of climate change had already been recognised by governments worldwide and confirmed by scientific knowledge (para 413).
• Recognising the peculiarities of climate change and its impacts, the Court considered it necessary to apply a “tailored approach” as regards the various Convention issues which may arise in the context of climate change (para 422). This is a striking assertion that now clearly marks out climate change from other types of environmental harm.

The Court then drew a distinction between a state’s commitment to combating climate change and setting targets on the one hand, and their choice of means to achieve those targets on the other. The Court found that while states should be accorded a wide margin of appreciation for the latter aspect, the former called for a reduced margin of appreciation for states in light of the nature and gravity of the threat of climate change.

To give its conclusion on the scope of Article 8 further teeth, the Court prescribed positive obligations on states to ensure the effective protection of the rights of individuals. These include adopting target timelines for achieving carbon neutrality, setting out intermediate emissions reduction targets and pathways, ensuring targets are updated with due diligence and in line with best available evidence, and to act in good time and in a consistent manner when implementing legislation and measures.

These are not boxes that need to be individually ticked – instead an overall assessment would need to be made against this rubric when considering a state’s response to climate change.

Paragraph 554 also stressed the need for transparency from authorities when it comes to decision-making processes, and the need for procedures that ensure that public views are taken into account.

On applying these principles, the Court found the Swiss regulatory framework to have “critical lacunae… including a failure by them to quantify, through a carbon budget or otherwise, national GHG emissions limitations” and that there had been previous failures in meeting past GHG emission reduction targets. Overall, the Court concluded that the Swiss authorities had exceeded their margin of appreciation and failed to comply with their positive obligations.

A cautionary note

The sole dissent came from Judge Eicke, the UK judge at the ECtHR. His view was that the majority had “tried to run before it could walk” and had gone beyond what was legitimate and permissible for the Court to do.

He warned that the judgment could end up proving counterproductive (paragraph 69 of his dissent) and that:

• It would prove an “unwelcome and unnecessary distraction” for national and international authorities, and would detract attention from ongoing legislative and negotiating efforts.
• It created a significant risk that authorities would be tied up in litigation about any regulations and measures they had adopted, and would lead to lengthy and uncertain execution processes in relation to any judgments.

Article 6 and access to justice

The Court also concluded that VKSS’s legal action in Switzerland had been rejected by both the administrative authority and the domestic courts on the basis of inadequate and insufficient considerations, and that there had therefore been a violation of Article 6. The Court emphasised the key role that domestic courts have played and will continue to play in climate change litigation, and stressed that complaints "cannot automatically be seen as…involving a political issue which the courts should not engage with" (paragraph 634).

 

vkss and the uk courts

There is a lot still to be digested from what is a long and layered judgment. But there are some initial observations to make on the possible impact of the case in UK courts.

The Human Rights Act 1998 requires courts to “take account” of decisions from Strasbourg, and to interpret legislation in a way that is compatible with the Convention as far as possible. VKSS is therefore likely to be front and centre in climate change cases in the UK going forward.

In an otherwise successful challenge to the Government’s Net Zero Strategy (R (Friends of the Earth Ltd & Ors v SSBEIS [2022] EWHC 1841 (Admin)), the High Court was faced with an Article 2 and Article 8 ground of a similar nature to that in VKSS. Holgate J found the argument to be “too ambitious” at the time and dismissed the ground on the basis that “the Strasbourg decisions upon which [Good Law Project and Joanna Wheatley] relies did not involve circumstances or issues comparable to those posed by climate change, for example the national and global effects involved or the extensive nature of the national measures required” and that the ground went beyond the “permissible incremental development of clear and constant Strasbourg case law permitted in domestic courts.” That reasoning arguably no longer holds.

Overall, it seems likely that claimants will look to challenge the UK Government if it falls short of meeting its positive obligations. It is by no means an open door – for starters, the UK Government’s package of targets, policies, and proposals is far more comprehensive than the Swiss authorities’ plans. But claimants now have a route to test the Government on whether it has, for example, kept its targets updated based on the best available evidence, or whether it has acted promptly and consistently when devising and implementing legislation and other measures.

The degree of transparency and extent of public participation in the UK’s decision-making process around climate change may also be the subject of future challenges, and a possibly under-discussed effect of the judgment is how fear of litigation may itself drive changes in how decisions are made.

It won’t be long before the approach of domestic courts in the post-VKSS world is tested – a judicial review brought by Friends of the Earth and two individuals against the UK Government’s National Adaptation Plan is being heard at a ‘rolled-up’ hearing in June. The claimants are arguing that Articles 2 and 8 have been violated as a result of what they term to be a ‘deficient’ plan to protect people and property from the impacts of climate change. While the context is markedly different in so far as the plan under challenge deals with adapting to climate change rather than mitigating its effects, the reasoning in VKSS will no doubt be feature in the claimants’ submissions.

A final thought on Article 6 - the judgment warns against domestic courts treating climate change claims as political issues that the courts should steer clear of. Whether this drives a shift in how English courts approach climate change cases, particularly at a permission stage, will be interesting to watch. My tentative prediction is that domestic courts will continue to approach such challenges with a degree of caution – with some of Judge Eicke’s concerns and the wider political debate around the Convention playing a part in that caution too.

The Government will also point to the fact that the judgment focuses on the setting of targets rather than the choice of means to achieve them. As I note above, the judgment reaffirms the wide margin of appreciation that states continue to have when making operational choices and adopting policies. This distinction may well prove crucial in future claims.

 

further information

If you have any questions or concerns about the topics raised in this blog, please contact Sahil Kher.

 

about the authors

Sahil is a senior associate in the public law team. His practice covers all aspects of public law from judicial reviews to public inquiries, with particular expertise in environmental and climate change judicial reviews, planning challenges, human rights-based challenges, and public procurement litigation.