Climate litigation: recent developments

Last year we looked at three key litigation trends in environmental litigation including the increase in climate litigation. We have seen that trend continue with a growing number of successful cases challenging governments and companies on climate change. In 2019, although dismissed for procedural reasons, a German court ruled against the government in a case where it had failed to meet its own climate target set for 2020. Similar cases were also brought in Italian and Irish courts. In 2020, the Supreme Court of the Netherlands imposed a duty on the Dutch government to prevent climate change on the basis of fundamental rights. This momentum has continued into 2021 with more significant cases across Europe.

Germany

On 29 April 2021, Germany's highest court ruled that the Federal Climate Change Act 2019 was incompatible with fundamental rights. A claim challenging the Federal Climate Change Act 2019 had been brought by environmental activists with the support of a number of environmental NGOs.

The specific provisions deemed in breach of fundamental rights were those governing national climate targets and the annual emission amounts permitted under the Act until 2030. The court found that these provisions "irreversibly offload major emission reduction burdens onto periods after 2030" and in doing so narrow the options available to reach climate neutrality after 2030 in line with the Paris Agreement. The court also found that the provisions setting out targets beyond 2030 were not sufficiently stringent nor detailed so as to ensure climate neutrality is achieved in time.

Significantly, in relation to fundamental rights, the court explained that with every area of human life still being associated with the emission of greenhouse gases, every freedom is potentially affected by the obligations to reduce emissions being postponed. The court found that the legislator's failure to: (1) take precautionary steps to ensure a transition to climate neutrality which respects fundamental freedoms; and (2) set out sufficiently detailed and rigorous targets, jeopardised the futures of those bringing the action.

By way of remedy the court ordered that by the end of 2022 new provisions should be enacted providing greater detail as to how targets will be adjusted for periods after 2030.

The German Government has reacted quickly to the ruling, committing to enactment of the changes specified by the court.

Belgian Government

In Belgium, the non-profit organisation Klimaatzaak / L'Affaire Climat joined by over 60,000 citizens, brought a similar claim against the country's federal and regional authorities arguing that their green recovery targets were unlawful.

The claimants allege that the Belgian Government has failed to take sufficient action to prevent climate change and in doing so has breached their obligations to Belgian citizens under the Belgian civil code, the constitution, and the European Convention on Human Rights.

The claimants are seeking:

assurance that climate targets set by governments and authorities will become legally binding;
a finding that the Belgian Government has not made its 2020 targets as required by the Paris Agreement; and
the introduction of new neutrality targets in compliance with EU's Green Deal. These should require 42% neutrality by 2025, 55% by 2030 and complete neutrality by 2050.

Although the claim was originally brought in 2014, it has been delayed due to a procedural question about whether the litigation should be conducted in French or Dutch. On 26 March 2021 oral arguments were completed, with a judgement expected around the beginning of July.

National Bank of Belgium

Also in Belgium, Client Earth, a British environmental NGO, brought an action against the National Bank of Belgium alleging it has failed in its obligations in relation to environmental protection and human rights.

ClientEarth's argument centres on the European Central Bank's (the ECB) Corporate Sector Purchase Programme (CSPP) which the National Bank of Belgium (the NBB) is in charge of implementing locally. This programme allows the ECB and eligible National Central Banks to buy bonds issued by non-banks established in the euro area. ClientEarth is arguing that the ECB, in administering the CSPP, is failing in its environmental obligations because bonds may benefit companies responsible for environmental pollution.

Netherlands

Finally, on 26 May 2021 a Dutch court ruled that Shell must cut its CO2 emissions by 45% by 2030 compared with 2019 levels. The challenge was brought by the Netherlands branch of Friends of the Earth who argued that Shell had breached its legal duty of care and human rights. Shell argued that there was no legal basis for the case and that governments alone are responsible for meeting the Paris targets. It is anticipated that Shell may appeal the decision.