A high-ranking international human rights court that only hears cases that raise a “serious question” will consider three challenges beginning this week that accuse European governments of not doing enough to curb greenhouse gas emissions — the first such lawsuits to be reviewed by the powerful bench.
The European Court of Human Rights in Strasbourg, France, could order governments to speed up efforts to cut carbon dioxide — a judgment that would only bind the nations named in the lawsuits. But such a ruling could open the door to similar challenges in other countries and set precedent for determining whether government officials’ failure to act on climate change violates human rights.
Ramifications of a decision of that nature could even reach the United States, said Pat Parenteau, an emeritus professor at Vermont Law and Graduate School.
“Europe is still a major market for American companies, and things that happen in Europe have ripple effects,” Parenteau said. He noted that a landmark 2021 ruling from a court in the Netherlands finding that Shell PLC must slash its greenhouse gas emissions could “affect the world” because the company has holdings across the globe.
“Things that are happening in Europe will have indirect effects on our policies,” he said.
Parenteau said the European Court of Human Rights’ interest in the climate cases comes as jurists in Europe, Latin America and Africa are beginning to recognize a right to a healthy environment.
“You’re seeing law emerging in other parts of the world, and you’ve got to believe that U.S. courts at some point are going to take note of that,” he said.
The European court’s first case, to be heard Wednesday, focuses on the health effects of heat waves fueled by climate change. In Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council, a group of older women say they’re disproportionately hurt by their government’s failure to do enough to curb greenhouse gas emissions.
The second case, Carême v. France, was brought by the former mayor of a town near Dunkirk who says the nation has failed to take every appropriate measure to reduce emissions.
A third case, filed by six young people in Portugal, will be heard later this summer. In Duarte Agostinho v. Portugal and 32 Other States, the youths accuse 33 nations of jeopardizing the next generation by not acting decisively to address global warming.
Similar lawsuits brought by young people in the United States have struggled to gain traction. A lawsuit filed against the federal government was rejected by an appeals court in 2020 and is now awaiting revision in a lower bench. Judges in several states, including Alaska and Utah, have also found that similar youth climate lawsuits raise issues that should be resolved by legislators.
One case, however, Held v. State of Montana, may soon be the first youth-led climate case to go to trial in a U.S. court (Climatewire, Dec. 1, 2022).
“As a court mandated to confront human rights violations head on, the importance of the Grand Chamber’s judgments in these historic cases addressing the single greatest threat to human rights cannot be overstated,” two attorneys and a scientist for Our Children’s Trust — the Oregon-based law firm behind many of the U.S. youth climate cases — wrote for Strasbourg Observers, a blog that covers the European Court of Human Rights.
The court’s grand chamber, composed of 17 judges, only hears a select number of cases, and its findings cannot be appealed.
Human rights-based climate cases have been galvanized by a 2019 decision, State of the Netherlands v. Urgenda Foundation, in which Dutch judges found that government leaders had a legal duty to take stronger climate action to protect human rights.
The European Court of Human Rights in late 2020 took the unusual step of fast-tracking Portugal’s Duarte case. The Global Legal Action Network, the British nonprofit that represents the young challengers, said the move reflects the “importance and urgency of the issues” at the heart of the dispute.
Observers say the three cases that are currently before the European Court of Human Rights raise a number of obstacles for the bench.
All three lawsuits charge officials with not moving aggressively enough on climate change, but human rights challenges have traditionally focused on government action — rather than inaction, said Ankita Gupta, a Toronto-based associate at Osler, Hoskin & Harcourt LLP.
Speaking last week at a workshop on the cases hosted by Columbia University’s Sabin Center for Climate Change Law, Gupta suggested it may be easier for parties to argue that a government action has violated human rights.
“The challenge when you argue that it is inaction, is a risk of a court finding that is creating an obligation for the government” to act, she said. Such a finding, she added, could raise questions about separation of powers.
Armando Rocha, an assistant professor at the Lisbon School of Law at the Catholic University of Portugal, said the Duarte case has the potential to deliver a landmark decision, but he suggested that the challenge has “structural deficiencies.”
The youths will need to demonstrate a link between emissions and climate change, Rocha said at the same Columbia event, calling the connection “clear and undisputed, but from a legal angle also very much distant.” He said that may be especially true for some of the claims in the case, including that the youth are suffering from allergies and sleep disruption that is worsened by rising temperatures.
The young litigants must also get over a legal hurdle that often requires parties to first pursue solutions outside of the courts, Rocha said.
“They’ve invoked the urgency of climate change and as members of a younger generation with less resources and tools,” he said of the Duarte challengers. “Can age and urgency qualify as an exception to the rule that they must first exhaust domestic remedies?”
Young challengers in the case will likely argue that if they were required to wait for the 33 countries named in the lawsuit to act, “we will be at the end of the century, and the problem of climate change calls for a different approach,” Luc Lavrysen, a justice of the Constitutional Court of Belgium and an environmental law professor at Ghent University, said at the Columbia event.
But to demonstrate legal standing, the challengers will have to show “reasonable and convincing evidence that the likelihood of a harm will occur,” Lavrysen said. “Mere suspicion or conjecture is insufficient.”
Corina Heri, a postdoctoral researcher in the Climate Rights and Remedies Project at the University of Zurich, said the court has the power to decide whether failure to mitigate climate change violates human rights, but it’s unclear whether it will do so.
“I’m relatively sure that the court won’t sit down and rewrite domestic climate laws, but that doesn’t mean it can’t offer redress,” she said at the Columbia event. Most significantly, she said, the court could issue a declaratory judgment, finding that a violation took place.
“Even if none of that happens and it’s just a finding they are admissible, it would be a success,” she said. “It would send a signal that the court is willing to hear these cases.”
First up: Switzerland
The Swiss challengers, who plan to take a train to Strasbourg for the Wednesday hearing at the European Court of Human Rights, first filed suit in 2016, alleging that various federal agencies had failed to uphold their obligations under the Swiss Constitution and the European Convention on Human Rights.
The suits failed in Switzerland, but in Strasbourg, the women plan to argue that the nation has breached two articles of the European Convention that protect the right to life and the “right to a normal private and family life.”
The Swiss government has argued that it has “long recognized” global warming and is committed to fighting it.
But government officials told the court that the Swiss challengers have failed to prove a causal link between the country’s “alleged omissions” and the effects of heat waves.
They said the Swiss government believes that “global warming is a global phenomenon and that only resolute action by all states, combined with changes in behavior by private actors and all citizens, will enable us to find lasting solutions to this immense challenge.”