INTRODUCTION

Climate change litigation is booming across Europe under its different tenets and manifestations. At least 119 climate change lawsuits have been filed in 20 European countries since 2015 to seek more ambitious climate action by governments and companies in line with the best available climate science.

This chapter builds on a high-level roundtable held at the conference ‘Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward’ at Hasselt University on 18 February 2022.It aims to analyse key topics surrounding climate litigation in five European jurisdictions. The roundtable, moderated by the authors, comprised the following speakers, all high-level lawyers involved directly in climate change litigation cases in their respective jurisdictions:

• – Carole Billiet, Equal Partners, Belgium;

• – Sébastien Mabile and François de Cambiaire, Seattle Avocats, France;

• – Roda Verheyen, Rechtsanwalte Günter, Germany;

• – Sarah Mead, Urgenda Foundation, the Netherlands; and

• – Nigel Pleming KC, 39 Essex Chambers, the United Kingdom.

In addition to the synchronic comparative perspective, the approach followed at the roundtable discussion, as reflected in this chapter, looks at climate change litigation in Europe from a diachronic perspective. Thus, it aims to address past, present and future trends in climate litigation. Section 2 deals with selecting legal instruments for climate litigation in different legal systems and their successful deployment in courtrooms. Section 3 focuses on existing procedural and substantive hurdles, both legal and ‘meta-legal’ (or extra-legal), currently undermining climate change litigation in the above legal systems. Section 4 outlines potential legal and meta-legal elements, increasing the chances for successful climate change litigation in different European jurisdictions. Section 5 concludes by laying down a set of common threads of climate litigation in Europe.

ORIGIN, AIMS AND SPECIFICITY OF THIS VOLUME

Climate change litigation has come to the fore in recent decades as a global phenomenon, encompassing the societal striving for radical changes, the need to establish the responsibility of both private and public organisations in view of the compelling evidence of climate change, and the collective awareness of the significant efforts needed to achieve effective and ambitious greenhouse gas (GHG) emission reductions, in line with the best available climate science. In this regard, the initial wave of strategic climate change litigation is now leaving room for a more structural phenomenon, arguably enshrining climate change litigation as a transnational climate governance mechanism. Several underlying trends are being appraised, which underpin the always more considerable bulk of cases being brought before jurisdictions all over Europe at the regional and domestic levels.

This edited volume aims to contribute to the discussions on trends in climate change litigation in Europe, drawing from regional, comparative and sectoral perspectives. It builds on the conference entitled ‘Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward’ held at Hasselt University in Belgium on 18–19 February 2022, organised in cooperation with the British Institute of International and Comparative Law (BIICL) and Hasselt University.

The hybrid two-half-day event took stock of the current developments in climate change litigation in Europe while addressing systematically and comprehensively the latest relevant trends.

INTRODUCTION

In the last decade we have seen a fast growth of climate litigation, understood as cases that relate to climate change mitigation, adaptation or climate science. That rapid increase in climate litigation has occurred around the world. The 2017 UNEP Climate Litigation Report identified 884 cases brought in 24 countries, comprising 654 cases in the United States of America and 230 cases in all other countries combined. As of 1 July 2020, the number of cases had nearly doubled, with at least 1,550 climate change cases filed in 38 countries (39 counting the courts of the European Union). Those cases include approximately 1,200 filed in the US and over 350 filed in all other countries combined. Outside of the US, Australia has seen the largest number of cases.Although the number of cases in Europe, compared with the US and Australia, is lagging behind, probably the most iconic are nevertheless situated in Europe. In the last three years the numbers have gone up again.

DEVELOPMENTS UNTIL 2017

The annual conference of the European Union Forum of Judges for the Environment (EUFJE) in Oxford in October 2017 focused on climate change.It is striking that in several European countries – but certainly not all – and at EU level climate justice was developing gradually at that time, and it concerned almost exclusively very specific, often quite technical aspects of climate legislation, such as the European emissions trading system, support mechanisms for renewable energies,measures to make mobility more sustainable, permits for projects with a significant climate impact, or, on the contrary, permits for climate-friendly projects.

INTRODUCTION

The primary purpose of this chapter is to analyse how strategic climate litigation operates in Poland and its consequences for the socio-legal system. Strategic litigation is a process initiated to change the direction of politics; it is a legal dispute before a court that is motivated by social forces and the main goal is not to win the case, but to achieve broad public support. Strategic litigation changes the way social problems are understood, as individual claims become a social paradigm of normative change. This is possible by focusing activities on three aspects: naming (the social issue in legal terms), claiming (before the court) and blaming (political institutions). The first aspect indicates a dichotomy, in that litigation can either be defined as a strategy of fighting for the recognition of fundamental rights or as a strategy of obtaining the correct application of existing law. Legal claiming defines the boundaries of the dispute, which indicate the need to resolve a specific issue or the need for a fundamental systemic change. The last aspect is related to the attribution of responsibility (to public authorities and/or private entities).

This chapter is divided into three parts. The first deals with the law applicable to strategic litigation in Poland (section 2). Next, the (potential) need for change in the Polish approach to strategic climate litigation will be outlined (section 3). Finally, the significance of the balance between social communication and legal argumentation for strategic climate litigation-based storytelling will be examined (section 4).

INTRODUCTION

In recent years, climate-related litigation before European regional courts has increased and expanded swiftly. To frame this context, four of the most significant cases in the field can be highlighted: two before the Strasbourg Court and two before the Luxembourg Court. Currently pending before the European Court of Human Rights (ECtHR) is the Duarte Agostinho case, in which six Portuguese youths filed a claim against 33 Council of Europe countries for neglecting to take adequate measures to combat climate change. The Swiss KlimaSeniorinnen case is another climate case pending before the Strasbourg Court. It involves a group of senior women who have filed a lawsuit against the Swiss government, alleging that it has failed to uphold its obligations under the European Convention on Human Rights (ECHR) by failing to steer Switzerland onto a safe emissions reduction trajectory. The petition by senior women observes that their demographic group is particularly vulnerable to heat waves due to climate change. The two cases before the Court of Justice of the European Union (CJEU) are the People's Climate Case, in which 10 families, including children from EU and non-EU countries, petitioned the EU courts for more stringent greenhouse gas regulations; and the EU Biomass Case, in which plaintiffs from multiple EU countries challenged the Renewable Energy Directive on the grounds that it accelerated deforestation. Both cases were deemed inadmissible on standing grounds.

INTRODUCTION

Climate change is undoubtedly one of the most, if not the most, pressing issues of our time, one which will fundamentally affect the future, perhaps even the survival, of humankind. Since the 1992 UNFCCC Rio Convention and the subsequent Kyoto Protocol of 1997, to the Paris Agreement of 2015, up to the Glasgow Conference of the Parties (COP) of late 2021, political bodies at all levels have tried to find a way to tackle the issue through a coordinated and efficient response. Nonetheless, the general consensus is that the measures taken so far are simply not enough.2

As a result, in the last few years, a growing number of climate change cases have started to emerge in different parts of the globe, in what has now consolidated itself as a worldwide movement to defend the planet's health in the judicial arena. It is, after all, the judicial branch's role to intervene as a subsidiary protection mechanism once the substantive rights that have been affirmed both at statutory and constitutional level are violated.

In this struggle to stop, or at least stall, climate change by means of litigation, several substantive provisions and procedural mechanisms have been employed. Among the latter, the present chapter aims to situate the debate in a richer theoretical and empirical perspective by introducing the argument that representative actions, although an imperfect mechanism, in certain circumstances may be a vital tool for social change and for the protection of fundamental rights, such as that to a safe environment.

INTRODUCTION

In its 2022 report, the Intergovernmental Panel on Climate Change unequivocally asserts that all modelled pathways to limit global warming to 1.5°C entail a reduction of greenhouse gas emissions in all industries. Scientists hold thateffectively all new fossil fuel extraction projects must be halted.

The 1.5°C goal was set out in the landmark 2015 Paris Agreement, adopted by nearly 200 signatory States and thus far one of the most ambitious international binding treaties on climate change. Another main objective of the Agreement, as provided in Article 2.1, is strengthening the global response to the threat of climate change by making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development. The question of climate finance appears in the article establishing the temperature target. This framing attempts to underline the fact that financial flows are essential to the implementation and effectiveness of climate crisis mitigation and adaptation mechanisms. However, as the instrument is only binding for States, which often lack the funds to address the climate crisis, the participation of private financial 2 actors is indispensable.

The financial community understands this opportunity and has begun to adopt the terms of the Paris Agreement. It is now commonplace for ‘financial actors, with national and regional development banks leading the way, to talk in terms of aligning with the Paris Agreement as a necessary aspect of their business case.’

INTRODUCTION

The European Green Deal aims to reshape the functioning of the EU towards sustainable development so as to face urgent climate-related and environmental challenges. Chiti points out that this ambitious regulatory project not only deals with environmental protection, but in a sense brings about a transition from the current phase of European integration to another, with the intention of establishing a new societal order. The European Commission states that to make the Green Deal policies work and be accepted, active public participation is ‘paramount’. The importance placed upon participation raises questions as to how citizens will be effectively involved in the process of complex environmental decision-making in the creation of this new societal order under the European Green Deal.

Such complex environmental decision-making arises, for example, in mobilising climate-dedicated funding and facilitating sustainable investments to make the ambitions of the European Green Deal a reality. One of the key tools in this context concerns the Taxonomy Regulation. The Taxonomy Regulation aims at founding a unified EU green classification framework for investments, which entrusts the Commission with adopting delegated acts to determine whether or not an economic activity is sustainable in light of the regulation.

While the Taxonomy Regulation aims to classify environmentally sustainable investments and therefore has a potential influence on the internal market and individuals, the path for citizens to get involved in implementing this instrument is not so straightforward.

INTRODUCTION

Climate change is one of the most serious existential threats to the long-term survival of life on our planet today. The consecutive, scorching heatwaves that hit the European continent in June and July 2022, shattering temperature records in many countries, painfully illustrate that prolonged periods of persistent droughts, raging wildfires and record-breaking temperatures are becoming normal because of climate change. Recent reports showcase the existence of a large emission gap, with the signatories to the Paris Agreement's current pledges only capable of reducing carbon by about 7.5% by 2030, compared with previous unconditional nationally determined contributions (NDCs), whereas the Intergovernmental Panel on Climate Change (IPCC) indicated that in order to meet the internationally agreed climate targets, emissions should be reduced by 45% by 2030 compared to 2010. In order to meet these objectives, however, the Parties to the Paris Agreement must double their climate efforts if they are to reach the overarching goal of limiting global temperature rise well below 2°C by the end of the century.

Against this worrisome backdrop, strategic climate change lawsuits have recently emerged as a new and, in an increasing number of cases, unexpectedly successful lever to force governments to tackle climate change more decisively and systematically. As of May 2022, more than 1,800 climate lawsuits have been filed in more than 40 different jurisdictions.

INTRODUCTION

Despite a widespread sense of urgency in the climate discourse, the latest national climate pledges set the world on track for a global temperature increase of 2.7°C.Thus, the realistic chances of delivering the 1.5°C target are fast decreasing, with alarming implications for the most vulnerable populations and ecosystems in the world. Against this background, the number of climate cases challenging national mitigation policies have recently grown into a new wave of climate litigation. Following the lead of the Urgenda case, in Europe alone 15 cases have been filed with the aim of compelling more ambitious and thorough policies. These cases, defined by Maxwell, Mead and Van Berkel as ‘systemic mitigation cases’,go as far as requesting that governments comply with specific reduction pathways, in line with the most ambitious 1.5°C target.

Overall, systemic mitigation lawsuits pursue a climate justice purpose: to make industrialised countries take responsibility for climate change: a global problem for which they were major contributors, but whose consequences will hit more severely those who are the least responsible for it. Their goals are both material and symbolic, as they aim to change policies while also influencing the political discourse. As emphasised by Tessa Khan, former co-director of the Climate Litigation Network, by exposing the governments and fossil fuel industry's contribution to the climate crisis, these cases support the climate justice movement in drawing ‘a clear narrative of responsibility’.

INTRODUCTION

In times of rapidly increasing climate change, not only do parliaments and governments have to play their part in combating the emerging crisis, but also courts: the number of climate change-related cases is growing worldwide .Since climate change is a global problem that requires a global solution, it is of the utmost importance to assess internationally effective carbon reduction ambitions of nation-States as well as companies. Many national courts in recent years seem to have been well aware of the problem that their respective States cannot stop climate change on their own, but still acknowledge that this does not release them from any reduction obligations. This is an important first step towards internationally minded climate protection by States. Nevertheless, most courts struggle in finding an appropriate yardstick for State obligations beyond national borders. Apparently, this is not necessarily the case when assessing corporate reduction obligations, where indirect Scope 3 emissions – occurring anywhere in the supply chain of a product – can already be included, such as in the Milieudefensie case.

While most national climate protection policies as well as courts focus in their assessments only on territorial State emissions, this chapter attempts to highlight the role of indirect ‘imported’ emissions at State level. By including them in national policies, the national impact area increases substantially and reflects the true potential of national climate protection measures in enforcing international climate action.

INTRODUCTION

In late 2021, the 26th Conference of the Parties to the UN climate regime (COP26) took place in Glasgow. This conference's number, together with the fact that these events take place annually, reminds us that the international community has been debating the problem of climate change for more than a quarter of a century. The UN climate regime forms the institutional context of these deliberations. Many issues that shaped the evolution of the three treaties and decisionsof the UN climate regime reoccurred during the annual climate conferences and preparatory meetings, generally putting developed and developing countries in opposing camps. One example is the vaguely defined right to development, as will be shown below. In the context of mitigating climate change, this right is about preserving a carbon-intensive path to 3 economic growth, in order to realise social progress for future generations.

During the climate negotiations in the late 1990s, government representatives of developing countries insisted that their countries first needed to achieve economic growth before they would be able to address climate change, as was the case with other forms of environmental degradation. At the time, climate negotiators understood the phenomenon of human-induced climate change as an environmental problem. The institutionalisation of international climate cooperation thus followed the model of other multilateral environmental agreements. The need to balance development and environmental protection has influenced the evolution of the UN climate regime from the outset.

INTRODUCTION

The nature of greenhouse gas (GHG) emissions poses unique challenges for the conduct of climate change litigation. Arguably, GHG emissions result in harms affecting two types of interests. They affect the personal interests of a large number of individuals (divisible interests) as well as a collective good of a society (indivisible/diffused interest). Given these challenges, collective redress procedures offer procedural flexibility to cater for the nature of the interests involved whilst promoting efficiency in climate litigation. Such procedures achieve two objectives – they facilitate access to justice for claimants who would not normally seek such justice, and they assist in the enforcement of the law in a legal system.

However, the collective redress procedural landscape within the EU is not uniform across EU Member States. In particular, the architecture of collective redress procedures is diverse. Arguably, this state of procedural and conceptual fragmentation leads to uneven protection and challenges effective access to justice, particularly for GHG harms.

This chapter contends that in light of procedural reforms necessitated by Directive 2020/1828 for consumers, Member States are presented with an opportunity to enact domestic procedural changes to effectively enable representative organisationsto better act in claims relating to climate change. The chapter argues that the Directive's approach to standing, information provision and ‘redress’ remedies could, if transposed to the environmental sphere, enhance access to justice for climate change victims.