Out-Law Analysis | 22 Jul 2021 | 1:16 pm | 5 min. read
The catastrophic impact of recent floods in Germany, The Netherlands, Belgium and Luxembourg will embolden activists who feel more needs to be done to address the risks of climate change.
Many activists have already gone to court in Europe to force governments and businesses to take more radical action to reduce their greenhouse gas emissions or pay damages. This trend is only likely to grow.
In May 2021, the district court in The Hague ruled that Royal Dutch Shell (Shell) must cut its global carbon emissions by 45% relative to 2019 levels by 2030.
The case against Shell was brought by a group of non-governmental organisations (NGOs) led by Friends of the Earth Netherlands (Milieudefensie) and around 17,000 individual claimants.
The court ruled to strike out the claims brought by individuals but considered the NGOs’ claims to be admissible, though only to the extent that they related to the interests of current and future generations of Dutch residents and Dutch inhabitants of the low-lying, flood prone, area around the Wadden Sea.
The NGO’s claims were deemed not to be admissible in respect of the interests of current and future generations of the world’s population as a whole. This aspect of the judgment could be relevant to other climate change litigation. It suggests climate-related litigation brought against business will fall at the first hurdle unless claimants can demonstrate they themselves are susceptible to the impacts of global warming or that they represent the interests of others who are this way affected.
Research suggests there are hundreds of thousands of people in the UK susceptible to the impacts of global warming. According to the research, undertaken by Deltares and published in Nature Communications, 426,000 people live less than two metres above sea level in the UK. This figure could increase to 599,000 by 2100, it is estimated, should there be a one metre rise in sea levels – which is the predicted rise should high greenhouse gas emissions continue.
Activists may find it more difficult to succeed with climate-related claims in the UK than in the Netherlands, however.
In its ruling the district court in The Hague agreed that there were many factors contributing to climate change and that no one company could be held solely responsible, but it said Shell owed “a significant individual best-efforts obligation” to play its part by reducing emissions attributable to the activities of the corporate group.
The court ruled that Shell owed an “unwritten standard of care” under the Dutch civil code to Dutch residents, requiring it to limit global warming to the 1.5˚C cap set out in the Paris climate change agreement. This standard of care also incorporated Shell’s obligations under human rights law – while the court acknowledged that the European Convention on Human Rights (ECHR) could not be invoked directly against a private organisation, as opposed to a public body, it used the ECHR to assess the standard of care Shell owed to residents. The court considered the Article 2 ‘right to life’ and Article 8 ‘right to respect for private and family life’ as particularly relevant to this assessment.
The ECHR has also been considered in the context of climate change litigation in Belgium. Following a claim brought by the NGO Klimaatzaak, on behalf of 58,000 citizens as co-claimants, a Brussels court recently ruled that the Belgian state had committed an offence under Belgian’s civil law and had breached the ECHR by not taking all “necessary measures” to prevent the “detrimental” effects of climate change. Again, breaches of Articles 2 and 8 of the ECHR were used as the basis for the claim. It is likely activists will seek to rely on similar arguments in future cases too.
Recent developments in France reflect the courts’ willingness in some jurisdictions to hold governments accountable in terms of their climate change obligations. On 1 July 2021, the Council of State (Conseil d’Etat) – the highest French administrative court – ruled that the French government had failed to take sufficient action to mitigate climate change and ordered it to take additional measures to redress that failure.
The French municipality of Grande-Synthe and several associations had petitioned the Conseil d’Etat in 2019 to annul the government's refusal to take additional measures to achieve the Paris Agreement’s target of reducing greenhouse gas emissions by 40% by 2030. From those proceedings, the Conseil d’Etat had given the government, in November 2020, three months to justify how they could meet the 2030 target without adding to the measures already adopted.
After examining the arguments put forward by the French government, the Conseil d'Etat sided with the claimants, observing that the decrease in emissions in 2019 was limited and that the decrease seen in 2020 was as a direct result of the pandemic and therefore could not be considered sufficient to establish a trend meant to achieve the 2030 targets. The decision of the Conseil d’Etat coincided with the publication of a report of the High Council for Climate, which noted that if a decrease in gas emissions was recorded in 2019, "the decrease observed in 2020 is mainly attributable to measures related to the Covid-19". The report also said: "Current efforts are insufficient to ensure that the 2030 targets are met."
In addition, the Conseil d’Etat held that France does not appear to be on track to meet its interim targets towards achieving its 2030 target. The projected trajectory provides, in particular, for a 12% decrease in emissions for the period 2024-2028, but the Conseil d’Etat said this did not appear to be achievable if additional measures are not adopted quickly.
This landmark decision was facilitated by the government’s own admission that the measures currently in force did not make it possible to achieve the set targets for 2030. This necessitates a review of the national low-carbon strategy, especially if the objectives set for all EU countries are to be achieved – i.e. a 40 to 55% reduction in emissions by 2030 compared to their 1990 level. If the revised strategy lacks ambition it is likely the Conseil d’Etat will be asked again to review its consistency with France’s emissions reduction targets.
German law makers were recently forced to hastily amend its Climate Protection Act after the country’s Constitutional Court ruled the legislation was unconstitutional in parts.
Another case brought in Germany has raised the prospect of climate-related claims becoming more global in nature.
Saúl Luciano Lliuya, a Peruvian farmer, has argued before the German courts that multinational electricity producer RWE is liable for a share of the costs of installing flood defences to address the threats posed by global warming to a melting glacial lake near his home. He has argued that if RWE is contributing 0.47% to greenhouse gas emissions that it should contribute 0.47% towards the cost of the flood defences.
Though a court in Germany initially dismissed the case on the basis that there was no “linear causal chain” between the emissions of RWE and specific climate change impacts, an appeal court subsequently found that Lliuya’s claim is at least admissible.
If Lliuya’s claim succeeds following a hearing of all the evidence, it could pave the way for others to raise similar litigation against other businesses globally in a court within their respective jurisdictions.
With contributions from Christian Lütkehaus and Valentine Morand of Pinsent Masons.
20 Jul 2021
28 May 2021