Tag: ECHR

Climate Change is a Human Rights Issue, the ECHR finds.

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland (application no. 53600/20) the European Court of Human Rights on Tuesday held, by a majority of sixteen votes to one, that there had been: a violation by Switzerland of Article 8 (right to respect for private and family life) of the European Convention on Human Rights;and, unanimously, that there had been: a violation by Switzerland of Article 6 § 1 (access to court).

The case concerned a complaint by four women and a Swiss association, Verein KlimaSeniorinnen Schweiz, whose members are all older women concerned about the consequences of global warming on their living conditions and health, claiming that the Swiss authorities are not taking sufficient action, despite their duties under the Convention, to mitigate the effects of climate change.

The court held that the four individual applicants did not fulfil the victim-status criteria under Article 34 of the Convention and declared their complaints inadmissible. However, the applicant association, did have locus standi to bring a complaint regarding the threats arising from climate change in Switzerland on behalf of those individuals who could arguably claim to be subject to specific threats or adverse effects of climate change on their life, health, well-being and quality of life as protected under the Convention.

The Court found that Article 8 of the Convention encompasses a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life. A contracting State’s main duty is to adopt, and to apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change. it noted that in line with the international commitments undertaken by the member States, most notably under the United Nations Framework Convention on Climate Change (UNFCCC) and the 2015 Paris climate agreement, and in the light of the compelling scientific advice provided, in particular, by the Intergovernmental Panel on Climate Change (IPCC), States need to put in place the necessary regulations and measures aimed at preventing an increase in GHG concentrations in the Earth’s atmosphere and a rise in global average temperature beyond levels capable of producing serious and irreversible adverse effects on human rights under Article 8.

Effective respect for those rights requires States to undertake measures to reduce their GHG emission levels, with a view to reaching net neutrality, in principle within the next three decades. In this respect, States need to put in place relevant targets and timelines, which must form an integral part of the domestic regulatory framework, as a basis for mitigation measures. there had been critical gaps in the process of putting in place the relevant domestic regulatoryframework, including a failure by the Swiss authorities to quantify, through a carbon budget orotherwise, national greenhouse gas (GHG) emissions limitations.

 Furthermore, the Court noted that Switzerland had previously failed to meet its past GHG emission reduction targets. The Swiss authorities had not acted in time and in an appropriate way to devise and implement the relevant legislation and measures in accordance with their positive obligations pursuant to Article 8 of the Convention, which were of relevance in the context of climate change.

The Court also found that the rejection of the applicant association’s legal action, first by an administrative authority, DETEC, and then by the national courts at two levels of jurisdiction, amounted to an interference with their right of access to a court. The Court found that the national courts had not provided convincing reasons as to why they had considered it unnecessary to examine the merits of the complaints. They had failed to take into consideration the compelling scientific evidence concerning climate change and had not taken the association’s complaints seriously. As there had been no further legal avenues or safeguards available to the applicant association, or individual applicants/members of the association, the Court found that there had been a violation of Article 6.1 of the Convention.

The Court also gave judgments in two other climate change cases. In Carême v. France Court declared inadmissible the application by a former inhabitant and mayor of the municipality of Grande-Synthe, on the ground that the applicant did not have victim status within the meaning of Article 34 of the Convention.In Duarte Agostinho and Others v. Portugal and 32 Others the Court declared the application inadmissible for non-exhaustion of domestic remedies. There were no grounds in the Convention for the extension of extraterritorial jurisdiction to other Convention States, in the manner requested by the applicants.

The message seems to be, if you can establish victim status under Article 34, and you have exhausted domestic remedies, you may well have success in proceeding in the ECHR against your State for a violation of Article 8, and, possibly Article 6.1, for a claim that it is not doing enough to protect you from the adverse impacts of climate change. NGOs throughout Convention States are doubtless taking note.

Meanwhile, in a civil action against Shell in the Netherlands brought by an NGO, the appeal by Shell against the first instance decision in 2021, began on 2 April and is due to conclude on 13 April.

Weather report. GHG litigation update.

1. The US

Montana

Held v Montana is an action by sixteen young people in Montana challenging the constitutionality of the State’s fossil-fuel based energy system, alleging that this breached their rights, including the right to a ‘clean and healthful environment’ as set out in the Montana Constitution. The action specifically targeted a provision in The Montana Environmental Policy Act (“MEPA”) which contains a limitation (the “MEPA Limitation”) that prevents the State from considering the impacts of greenhouse gas (“GHG”) emissions or climate change in environmental reviews of its energy economy. Since the claim was commenced, clarifications to the MEPA Limitation were signed into law in April 2023, further explicitly prohibiting “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders” for MEPA reviews of new energy projects.

On 14 August 2023 District Court Judge Seeley held that the plaintiffs had standing to bring the action, as they have a “fundamental constitutional right to a clean and healthful environment, which includes climate as a part of the environmental life-support system.” Montana’s GHG emissions and climate change were found to be proven factors in causing climate impacts to Montana’s environment and harm and injury to the Plaintiffs. Montana’s GHG emissions could be fairly traceable to the MEPA Limitation. The MEPA limitation was held to have violated the plaintiff’s right to a clean and healthy environment by prohibiting analysis of GHG emissions and corresponding impacts to the climate of energy projects, as well as how additional emissions will contribute to climate change or be consistent with the Montana Constitution, and was unconstitutional. An injunction was granted prohibiting the state government and public bodies in accordance with the unconstitutional statutes. Montana has sixty days within which to appeal.

California

On 17 September 2023 a suit was filed by the State of California in the San Francisco which alleges that various oil and gas misled the public for decades about climate change and the dangers of fossil fuels and seeks compensation from those companies to help fund recovery efforts related to California’s extreme weather events, from rising sea levels to drought and wildfires, that have been exacerbated by human-caused climate change.

2. Europe

Two cases are currently before the European Court of Human Rights, brought by claimants from different ends of the age spectrum.

First, Verein Klima Seniorinnen v Switzerland, involving the effect of climate change on elderly women in Switzerland, amounting to violation of their rights under Articles 2 (right to life) and 8 (right to respect for private and family life) of the Convention., and was heard on 29 March 2023. Second, 27 September 2023 the hearing began in Duarte Agostinho and others v Portugal and 32, involving claims brought by young people in Portugal, aged 11-24, alleging that signatories to the Paris Agreement have failed to comply with their commitments, amounting to a violation of their rights under Article 2 and 8 of the Convention.

3. The Oceans

The law of unintended consequences may be applying to the IMO’s 2020 Sulphur Cap. This change was made to preserve human health, due to the toxic nature of sulphur aerosols, but may also have contributed to global warming. Sulphur aerosols also reflect sunlight, and as a result have a cooling effect, and are believed to have masked some of the effects of global warming, especially in the regions of heavy maritime traffic such as the North Pacific and North Atlantic regions. An analysis in July 2023 by Carbon Brief https://www.carbonbrief.org/analysis-how-low-sulphur-shipping-rules-are-affecting-global-warming/ states,

“Carbon Brief’s analysis suggests that the additional warming due to the IMO regulations on marine fuel is approximately equivalent to two additional years of global greenhouse gas emissions from human activity at their current rate. While this does not fundamentally change where the world is headed in terms of warming by 2050, it does make it more difficult to limit warming to 1.5C over the next few decades. However, the change in radiative forcing due to a drop in SO2 emissions remains highly uncertain, especially over the oceans… Taking the high end of the range of estimates of radiative forcing could result in up to 0.18C additional warming by 2030 and 0.25C additional warming by 2050, though most studies have found lower forcing estimates than this.”