Last week families from across the EU launched the first strategic climate court case against the European Union (EU).

Some European governments have already been challenged in court on their climate policies, but for the first time the EU is being taken to court in an effort to force law-makers to increase ambition.

By taking a case to the General Court, the plaintiffs are targeting not one particular government but all the current 28 member-states. There has not been a case on a similar scale previously.

The plaintiffs ask the court to rule that climate change is a human rights issue

The case – dubbed ‘The People’s Climate Case’ – is the latest in a new surge of strategic cases seeking to push governments to increase their action on climate change.

The case has been brought forward by 10 families from Portugal, Germany, France, Italy, Romania, Kenya, Fiji, and the Saami Youth Association Sáminuorra. The families have brought the case against the EU before the General Court of the European Court of Justice. The case is funded by German NGO ‘Protect the Planet’ and supported by the ‘Climate Action Network’, Europe’s largest NGO coalition working on climate and energy issues, representing over 1700 NGOs.

The families say that the failure of the EU’s climate policies is materially damaging their lives and livelihoods. Anchoring the case to a human rights issue, they claim that their physical well-being will be increasingly adversely affected by droughts, flooding, heat waves, sea level rise and the disappearance of cold seasons as a result of climate change.

Specifically the families claim that the EU has failed, and continues to fail, to meet its urgent responsibilities to limit the emission of greenhouse gases (GHGs). Specifically the case argues that the EU’s current domestic GHG reduction target, to reduce emissions by 40% compared to 1990 levels by 2030, is too low to meet the requirements of higher ranking EU and international laws.

The families say that the continued emission of GHGs leading to climate change is contrary to the principle of equality (Articles 20 and 21, EU Charter); the principle of sustainable development (Article 3 TEU, Article 11 TFEU, Article 37 EU Charter, Article 3 UNFCCC); the no harm principle in international law; and EU’s environmental policy (Article 191 TFEU).

Three EU acts support emissions reductions so it is these acts the case targets, asking the government to make them more ambitious. They are the 2018 amendment of the Emission Trading Scheme Directive; the Effort Sharing Regulation; and the Land Use, Land Use Change and Forestry Regulation.

Citizens, like those in the People’s Climate Case, are using human rights to put pressure on their governments

The case, while a landmark for the EU, is one of a group cases that have emerged over the last few years in which citizens are using climate litigation as a form of bottom-up pressure to influence governments and corporations to mitigate, adapt or compensate for losses resulting from climate change.

Other recent cases of strategic litigation against governments have also asked for increased ambition to protect the fundamental rights of citizens and the global environment. Tying climate court cases to human rights is a new phenomena, and one that has started to see some success.

The new EU case follows the strategy used by the Juliana v U.S. case which asserted that the US government’s affirmative actions that cause climate change violate the youngest generation’s constitutional rights to life, liberty, and property.

The People’s Climate Change also challenges the incompatibility of recent EU regulation with the right to health and life, the rights of children to such protection and care, the right to own and use property, and the right of equal treatment (all protected by the EU Charter).

Rights claims in climate change litigation direct the public and political attention to the individual detrimental human consequences of climate change. In this regard, the newest case acknowledges that infringement of fundamental rights affect each family in a distinct manner. For instance, increasing temperatures and reducing rainfall will affect farmers (as is the case of the Portuguese, French and Romanian families). Sea level rises will affect people living in coastal areas (as in the case of the German and Fijian families). Each family will suffer in a different way.

Moreover, the People’s Climate Case is the first to claim that individuals living outside of the EU are entitled to invoke EU fundamental rights to health, occupation, property and equal treatment that are violated because of action caused within the EU territory. The application justifies the inclusion of a family from Kenya and a family from Fiji on the basis that the rising temperatures in Kenya and sea level rise in Fiji are attributable to climate change. Climate change in turn is linked to GHG emissions. EU countries–together the third biggest emitter–have a share of responsibility for those emissions.

Could the case succeed?

The outcome of this case is difficult to anticipate.

First, the EU Court needs to confirm that the plaintiffs have a right to sue. In other words, the court must decide that the 10 families and the Saami Youth Association have standing. It is not certain that the case will pass this first hurdle. In the European legal system individuals can only challenge legal acts if they are directly and individually affected by them. This case, therefore, would set a precedent.

Even if the plaintiffs pass this first obstacle, a legal victory is uncertain. Elsewhere only a handful of strategic cases against governments had some degree of success.

One of the first cases, Massachusetts v Environmental Protection Agency (EPA) (2007), settled that addressing climate pollution is EPA’s responsibility in carrying out the Clean Air Act. The Urgenda v The State of the Netherlands (2015), in which the Hague order the Dutch government to increase the ambition of their emissions reductions targets (from 17% by 2020 compared to 1990 levels to 25%) is still under appeal. Overlooked, but a strong precedent, the Ashgar Leghari v. Federation of Pakistan (2015) case stated that the national government’s delay in implementing the country’s climate policy framework violated citizens’ fundamental rights.

When it comes to deciding on environmental law cases, the Court of Justice of the EU is considered to be a force for good. It tends to follow a precautionary approach and interpret EU environmental Directives within the spirit of protecting the environment.

However, climate change is not only a particularly challenging problem for policymakers to address. It is also challenging for the Courts to understand and frame. In deciding this case–and new cases yet to come–Judges will have to push many existing legal doctrines and frameworks to their limits.

Joana Setzer is a Research Officer at the Grantham Research Institute on Climate Change and the Environment. The views expressed in this commentary are those of the authors and not necessarily those of the Grantham Research Institute.

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