Climate litigation: European rulings set legal precedents for government accountability

Jennifer Venis, IBA Multimedia JournalistTuesday 21 April 2020

In February, the Court of Appeal in England and Wales found plans for a third runway at Heathrow Airport unlawful, as they were incompatible with commitments the UK government made in line with the United Nation’s Paris Agreement on climate change. The Court effectively determined that the Paris Agreement constitutes government policy that must be taken into account in accordance with national law, setting a precedent for accountability regarding international climate commitments.

Freerk Vermeulen, a partner at NautaDutilh in Amsterdam, says ‘it is internationally important that the Court of Appeal held the [less than two degrees celsius] temperature target in the Paris Agreement to be enforceably binding upon the United Kingdom. Both the Court of Appeal and the Dutch Supreme Court acknowledge that governments should be able to convincingly show that its policy is and will remain in line with the Paris Agreement’.

The Heathrow decision follows the Supreme Court of the Netherlands (the ‘Supreme Court’) ruling in the Urgenda case, in which Dutch law firms Höcker and NautaDutilh co-represented the environmental non-governmental organisation Urgenda. The ruling of 20 December 2019 set a historic precedent, finding that the Dutch government has a duty to reduce greenhouse-gas (GHG) emissions under the European Convention on Human Rights (ECHR).

Both the Court of Appeal and the Dutch Supreme Court acknowledge that governments should be able to convincingly show that its policy is and will remain in line with the Paris Agreement

Freerk Vermeulen
Partner, NautaDutilh

Melinda Taylor, European Regional Forum Liaison Officer of the IBA Human Rights Law Committee, told Global Insight ‘this case law also has clear implications as concerns current responses to the Covid-19 pandemic, specifically, states cannot prioritise economic or political goals over the more fundamental duty to respect and ensure the right to life, under Article 2 of the ECHR’.

In 2013, Urgenda and 900 co-plaintiffs launched a lawsuit against the Dutch government, alleging that the Netherlands’ GHG emission levels were unlawful, breaching the government’s duty of care as per the Dutch Civil Code and Articles 2 and 8 of the ECHR. Urgenda argued ‘this duty of care principally means that a reduction of 25% to 40%, compared to 1990, should be realised in the Netherlands by 2020’.

The State argued it had no legal obligation under national or international law to take measures to achieve the reduction targets in Urgenda’s claims, and that the Netherlands’ relatively low contribution to global emissions precluded it from taking more significant precautionary measures.

Vermeulen was lead counsel on NautaDutilh’s Urgenda team and believes it is not for governments to advance such an argument, because there would be no effective judicial remedy if every country could avoid responsibility. He adds, ‘there is common ground to the effect that there is this principle of global responsibility. So every state has to make efforts proportionate to its contribution to this global risk’.

In 2015, the District Court of The Hague (the ‘District Court’) ruled in favour of Urgenda, becoming the first court to place a positive legal obligation on a state to take precautions against climate change. However, the District Court determined that Urgenda could not rely on Articles 2 and 8 of the ECHR because as a collective it cannot be designated as a direct or indirect victim. When the government appealed the ruling, Urgenda cross-appealed regarding its reliance on the ECHR.

The Dutch government also appealed The Hague Court of Appeal’s 2018 ruling in favour of Urgenda, but the Supreme Court decision last December upheld the previous rulings. The Supreme Court relied on non-binding international norms and commitments, such as the UN Framework Convention and its Conference of the Parties decisions, to confirm that the Dutch government must introduce measures to reduce GHG emissions by 25 per cent compared to 1990 levels by the end of 2020.

The Supreme Court also determined that Urgenda could rely on Articles 2 and 8 of the ECHR, and thus the government’s failure to reduce emissions would be a violation of not only the rights of Urgenda’s collective and co-plaintiffs, but present and future Dutch citizens.

Taylor, who is also an international human rights counsel in The Hague, says ‘by translating these concepts into legally enforceable obligations, the [Urgenda and Heathrow] judgments demonstrate that governments can no longer pay lip service to the need to fight climate change: given its global and local ramifications, courts are increasingly willing to step in to ensure that the rights to life, and a safe and healthy environment, transcend short-term political cycles or immediate development pressures.’

The government had argued these decisions were beyond the judiciary’s remit, but the Dutch courts and the Court of Appeal in the Heathrow case repeatedly clarified that the rulings were not attempts to determine policy.

Vermeulen says ‘the Supreme Court judgment repeatedly flagged the element of effective remedy, in the sense that if a court – on the basis of those materials – does not acknowledge that there’s a specific minimum threshold at which human rights will be infringed, then actually it’s not granting an effective legal remedy’.

Tim Strong, Co-Chair of the IBA Litigation Committee and a partner at Taylor Wessing in London, believes ‘the Heathrow decision, in contrast to Urgenda, is not a ground-breaking decision. It is simply what happens with any judicial review’. However, he acknowledges the importance of climate litigation as a tool to hold governments accountable when international bodies and agreements lack enforcement capabilities.

In the Heathrow case, the Court of Appeal was required to determine whether the UK government’s plan for a third runway at Heathrow airport as described in the Airports National Policy Statement (ANPS) was compliant with section 5 of the Planning Act 2008, which requires the relevant infrastructure project to have taken account of government policy on climate change.

The ruling’s significance stems from its determination that the Paris Agreement constitutes government policy. Although the Agreement has not been incorporated into domestic law, the Court found that public statements by government officials and the ratification of the Agreement before the creation of the ANPS meant it should have been taken into account.

Strong is clear that the ruling does not mean there will never be new, lawful plans for a third runway at Heathrow, but he believes the case will encourage heavier scrutiny of government infrastructure projects. In that sense, the verdict may ‘ensure that climate considerations are not overlooked when these planning processes are undertaken, and sometimes that will result in projects being withdrawn or changed radically’.