International Climate Change

Posted on: 17 August 2018

Europe to see its very own ‘People’s Climate Case’ before the CJEU

Posted by: Frances Lawson

Following the somewhat unlikely example of the US leading the way in ‘People’s’ climate litigation, a similar action in Europe has just received the green light from Europe’s highest court. In this latest case, families from a number of European countries, as well as from countries far afield who are set to experience ever worsening climate impacts, are taking two of the EU’s three main institutions – the European Parliament and the Council of the European Union – to court over the alleged inadequacy of the EU’s climate targets to 2030.

Specifically, the Claimants – led by a Portuguese family and a legal team comprising Professor Gerd Winters – are asking the court to:

(1) declare the relevant EU legislation unlawful insofar as it allows the emission between 2021 and 2030 of a quantity of greenhouse gases corresponding to 80 % of the 1990 emissions in 2021 and decreasing to 60 % of the 1990 emissions in 2030;

(2) annul the relevant EU legislation insofar as it sets targets to reduce GHG emissions by 2030 by 40 % of 1990 levels; and

(3) order the defendants to adopt measures under the relevant legislation requiring a reduction in greenhouse gas emissions by 2030 by 50 %-60 % of 1990 levels, or such higher level of reduction as the Court thinks fit.

The Claimants’ arguments rely heavily on the customary international law principle not to cause harm to other States, as well as the environmental principles enshrined in Article 191 of the Treaty on the Functioning of the European Union (‘TFEU’). The Claimants’ additionally place weight upon the EU’s Charter of Fundamental Rights and contend that the current emissions reduction targets will result in the EU infringing a number of the rights protected by the Charter. Reliance is also made on the Paris Agreement, with the Claimants asserting that the EU’s targets are unlawful as they exceed the EU’s ‘equitable share of the carbon budget’ available to meet the 2 degrees target in the Paris Agreement.

Suffice to say that just for such a groundbreaking case to have received permission from the General Court speaks volumes about courts unprecedented willingness to entertain climate litigation. Should the case succeed, climate law and policy across the EU-28 will be forced into a major, and much-needed, gear shift.

The next step in the proceedings will be for the Parliament and Council to submit their Defence, which is expected within the next two months.

Further details about the Claimants arguments in law can be found from page 40 onwards in the Official Journal here