Climate change litigation: Recent landmark verdict from the European Court of Human Rights can change the game

Climate change litigation is an evolving field where the role of the judiciary is increasingly notable. Courtrooms are seeing a rise in cases where individuals and organizations are calling upon governments and corporations to step up their environmental responsibilities. In Norway, the proactive involvement of NGOs in environmental issues is illustrated by the current lawsuit regarding the validity of the Plan for Development and Operation (PDO) for the Tyrving, Yggdrasil, and Breidablikk oil fields, as well as the “climate lawsuit” that was decided by the Supreme Court in 2020 and is currently awaiting a conclusive judgement from the European Court of Human Rights (ECtHR).

The ECtHR has recently issued judgements in cases that address the impact of climate change on fundamental human rights and state responsibilities. This marks a development in climate-related litigation. Although the full implications of these decisions are yet to unfold, they will likely be the subject to debate for the foreseeable future.

The ECtHR judgements and key takeaways:

Overview and dismissal

On 9 April 2024 the ECtHR delivered its judgement in three cases concerning the scope of the European Convention on Human Rights (ECHR) regarding the adverse effects of climate change:

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland: A group of senior women from Switzerland, particularly vulnerable to the health consequences of heatwaves, argued that their government had failed to protect their rights to life and privacy as guaranteed by Articles 2 and 8 of ECHR.
Carême v. France: The former mayor of Grande-Synthe, France, brought legal action against the French government for insufficient action against rising sea levels threatening his coastal city, claiming a violation of his rights to life, privacy, and property.
Duarte Agostinho and Others v. Portugal and 32 Others: Six Portuguese youths born between 1999 and 2012 sued 32 European countries, including Norway, for failing to provide adequate protection against the predicted increase in heatwaves and wildfires over their lifetimes.

The Court dismissed the latter two cases on procedural grounds. The Carême v. France case was dismissed because the former mayor no longer resided in Grande-Synthe or France and thus lacked the sufficient link with Grande-Synthe. Therefore, he did not possess the “victim” status required under Article 34 of the ECHR.

The Duarte Agostinho case faced dismissal due to multiple procedural issues. The Court determined that Norway and the 31 other member states (excluding Portugal) could not be held responsible for the claims brought by the Portuguese children, as the matter did not fall within their jurisdiction. Additionally, these Portuguese youths did not meet the “victim” status criteria, and for the claims against Portugal specifically, the case was dismissed because the youths had not exhausted all domestic legal remedies before bringing the matter to the Court.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

In the case against Switzerland, the Court did however allow the complaint from the association Verein KlimaSeniorinnen Schweiz and found that Switzerland had violated the ECHR.

In its judgement, the Court held that Article 8 of the ECHR includes the right to effective state protection from the serious adverse effects of climate change on individuals’ lives, well-being, and quality of life.

The Court’s decision to grant the association, which represents over 2,500 women aged 64 and above, ‘victim’ status is a significant step towards holding states accountable for insufficient action in dealing with climate change. By allowing organizations to act on behalf of groups of individuals who might not by themselves meet the high threshold in ECHR art. 34 to be considered a ‘victim’, the ECtHR ensures that these groups have access to effective legal remedies to protect their rights. It shows the Court’s recognition of the specific risks faced by certain demographics, and their need for access to effective remedies.

The court’s criteria for assessing state compliance with climate obligations:

The judgement draws a clear line between the ambition of climate goals, where states are afforded limited discretion, and the implementation of specific measures to achieve these goals, where they enjoy a wider discretion. This distinction is crucial as it acknowledges the complexity of policymaking while ensuring that states remain firmly committed to their overarching climate objectives.

To assess whether a state’s climate policy complies with ECHR obligations, the Court established a test that includes ensuring that states have:

Goals for carbon neutrality and a total carbon budget, or another equivalent method for quantifying future greenhouse gas emissions, in line with national and/or global climate commitments.
Greenhouse gas emissions reduction targets and pathways that are capable of meeting the national reduction goals within relevant timeframes.
Evidence demonstrating whether the state has met, or is in the process of meeting, the relevant emissions targets.
Procedures keeping the climate targets updated with due diligence, based on the best available science.
Timely and appropriate action in the formulation and implementation of relevant legislation and measures.

Switzerland was found to be in non-compliance with its obligations under Article 8 of the ECHR due to several concrete failings in its approach to climate change. These failings included:

Insufficient Regulatory Framework: The ECtHR highlighted that Switzerland’s existing regulatory measures were inadequate: The 2011 CO2-act did not provide proper measures beyond the year 2024, and the recently adopted Climate Act’s promise to implement concrete measures “in good time” was insufficient to meet the urgent need for effective climate protection (paragraph 567).

Lack of a Quantified Carbon Budget: Switzerland had not established a quantified national GHG emissions budget, which is an essential tool for tracking and planning progress towards emissions reduction. The Court emphasized that relying on Nationally Determined Contributions (NDCs) under the Paris Agreement was not a substitute for a concrete carbon budget. This lack of quantification hindered Switzerland’s ability to align its climate policies with international commitments and relevant climate research (paragraphs 569-571).

Unmet Emissions Reduction Targets: The Court pointed out that Switzerland had previously failed to meet its GHG emissions reduction targets. For instance, the 2011 CO2 Act aimed for a 20% reduction by 2020 compared to 1990 levels, but by 2020 the actual reduction was around 11%, demonstrating a shortfall in Switzerland’s climate action. Furthermore, the Swiss Federal Council’s own assessments indicated that the targets set were not ambitious enough to meet the global commitments to limit warming to well below 2°C, and ideally to 1.5°C, above pre-industrial levels (paragraphs 558-559).

What Does This Mean for Norway?

The climate change actions brought in Norway have this far mainly rested or been decided on constitutional grounds, as the Norwegian constitution includes specific provisions relating to environmental protection (section 112).

The recent judgement from the ECtHR makes it clear that protection from the adverse effects of climate change is a fundamental human right, and that states and governments must adhere to their international climate change commitments. The judgement might prompt a review of Norway’s environmental strategies to ensure they are aligned with the European Convention on Human Rights. The Court’s decision points to the importance of an appropriate regulatory framework, a national greenhouse gas emissions budget, and the pursuit of emissions reduction targets.

The long-term impact of the judgement on the ongoing climate change litigation in Norwegian courts and before the ECtHR is still to be ascertained, but the debate is undoubtedly ‘en route’.