Birgit Engel –

More and more environmental lawsuits reveal a lack of access to justice for individuals and organizations in national and international courts. Citizens have to fight in court for what multinational corporations have been handed on a silver platter by numerous Free Trade Agreements: the possibility to sue for economic damages caused by climate change impacts.

Global environmental justice is under threat with alarming consequences for human rights. The examples are manifold: multinational corporations that contribute to the degradation of the environment; worsening climate and working conditions through monoculture farming; resource extraction and investments in fossil fuel-based industries; the rising, energy-intensive standard of living with devastating global consequences for the climate, people and the environment; free trade agreements that open up unimagined possibilities for corporations to sue states in order to be able to continue their destructive economic policies; state reprisals against organisations that campaign for human rights and environmental justice.

And in the middle of it all, shrinking spaces for civil society organisations and people who have to live with the consequences of these policies and economic activities every day through no fault of their own. It is not surprising, therefore, that in recent years more and more private individuals and organisations are resorting to national and international courts to use existing legislation to assert their claim to a healthy and liveable future.

Churup Glacier Saul Lliuya – Copyrights Germanwatch

But why is it so difficult to actually claim environmental and human rights, which are regulated by national and international legal texts and conventions, through the judicial system?

People’s climate case

Regardless of the actual content, many lawsuits fail at the admission stage. The recent dismissal of the People’s Climate Case by the European Court of Justice impressively shows why this is and leaves open the question whether it is actually legal. This case is supported by numerous international and European civil society organisations, among them CAN-Europe and ASTM Luxembourg, who presented the case together with Greenpeace and the Mouvement Ecologigue at the Klimadag 2018 of Climate Alliance Luxembourg.

“The recent decision of the European Court of Justice (ECJ) on the People’s Climate Case is a confession of failure. It was not even a decision on the issue itself, but to reject the case is to deny the plaintiffs’ access to justice..This is not just about the personal climate change impacts of the plaintiffs: they represent all of us – and that is what makes this decision a joke in the international legal framework. At the same time, multinational corporations are granted legal, privileged access to justice via free trade agreements and arbitration tribunals – with devastating consequences for people and the environment. There is nothing more anti-democratic and short-sighted than this.” – Birgit Engel, Coordination Climate Alliance Luxembourg at ASTM

Brought to court in 2019 against the European Parliament and the European Council as EU legislators by ten families from France, Kenya, Portugal, Italy, Fiji, Germany, Romania as well as the indigenous Saami youth organisation whose fundamental rights and living conditions are affected by the climate crisis, the People’s Climate Case could have become a landmark in human and environmental rights under the EU Charter on Fundamental Rights. The families „took the EU to court criticising its 2030 climate target to reduce emissions by at least 40% as being insufficient to address the climate crisis and thus failing to protect their human rights such as their right to health, life, occupation and property[1]“.

The Court’s explanatory statement, however, which confirmed the decision of the European General Court in second instance on procedural reasons, is nothing more than a legal loophole. The European Court of Justice based its ruling on a court decision from 1963, the Plaumann formula, according to which an „individual“ concern was to be interpreted as „unique“ and not as „personal“ concern. „(…) the CJEU has set the barriers for individual concern for natural or legal persons very high: the contested act must affect them “by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually just as in the case of the addressee.”[2]

At the European Court of Justice April 2021, Copyright Morris Kemp

As climate change impacts are not peculiar to the plaintiffs but rather a collective consequence, thus, the whole process is about access to justice, no word on climate change itself, which turns the decision in fact into a denial of the European Convention on Human Rights with the intention of preventing many more people from filing lawsuits.

Once again, the EU blatently failed to ensure access to justice in environmental matters and to join many other national and supranational Courts that play an important role in holding governments accountable for their climate inaction. The question remains as to how the EU will explain the contradiction that more people will be harmed in their health and professional existence by the ongoing climate change while less legal protection will be granted to them.

Wendel Trio, Director of the Climate Action Network (CAN) Europe said: „(…) It is a shame the European Court of Justice distanciates itself from other courts by refusing to take up the matter and hiding itself behind outdated procedural rules. If the EU is to make sense to its citizens, it will need to recognise that accountability is key to ensure a well functioning democracy. The EU urgently needs to step up the protection of its citizens, by both increasing climate action and providing access to justice to all its citizens.”

The judgement also ignores the influence of the Aarhus Convention whose Compliance Committee (ACCC) confirmed in 2017 that European Courts have systematically violated the right to access to justice for both individuals and NGOs in environmental lawsuits for many years.

What is more, according to art. 47 of the EU Charter, the ECJ should have given an answer to the plaintiffs’ question on where to seek protection of their rights, which the institution did not do. The only remaining way to access climate justice in this case is through the European Court of Human Rights (ECHR) in Strasbourg, as it stands outside the European legal system and is bound by the European Convention on Human Rights.

Complaint by six Portuguese young people

In October 2020, because of the “importance and urgency of the issues raised” the European Court of Human Rights granted priority to a case filed by six adolescents between eight and twenty-one from Portugal, just a few weeks before the EU was due to make a decision on its 2030 emissions target.

Already aware of the global impacts of climate change, the adolescents decided to act after the 2017 devastating forest fires in Portugal and a temperature rise to 44°C.

A rural road in the Pedrogão Grande region was encircled by flames at the time and became a deadly trap for almost three dozen people, as were the burning forests for thousands of animals. “I am very afraid of having to live on a sick planet,” eight-year-old Mariana Agostinho from Leiria told the German Press Agency dpa when filing the complaint in September 2020. “That’s when the penny dropped for me. We experienced the consequences first hand and I realised how urgent it is to act to stop climate change,” added Mariana’s sister Claudia (21).

The young people sued 33 European countries for insufficient climate targets: too high emissions, too few reduction measures. With the acceptance of the lawsuit by the European Court of Human Rights for endangering the future of the next generation, the states concerned (the EU states plus Norway, Russia, Great Britain, Turkey, Switzerland and Ukraine) as well as the international corporations based there were forced to act. The ECHR had initially given them until the end of February 2021 to submit revised measures. However, instead of aligning national measures with the Paris Agreement, which would correspond to an overall reduction of 65% of current emissions, the sued governments petitioned the ECHR in a coordinated effort to reverse its decision to fast-track an unprecedented climate change case.

The court rejected this motion on February 26th, confirming that the young people were facing an imminent danger and denied the states’ application to defer scrutiny of their climate policies by judging the case as inadmissible.

As a result of the Court’s decision, these countries must now attempt to defend the compatibility of their climate policies with the Paris Agreement’s 1.5°C global warming target. If this does not happen, average global temperatures are expected to rise by three degrees by 2100 – including ice melt, rising sea levels, floods, fires, droughts and storms. Entire regions of the earth would no longer be suitable for human habitation, with serious consequences for other overpopulated regions due to overuse and climate-induced migration.

The states now have until 27 May 2021 to revise their national targets and to submit their defences to the youth applicants’ case. Then, the youth plaintiffs will have to respond to the arguments of each of the 33 states.

Gerry Liston, legal advisor of the Global Legal Action Network (GLAN), which is providing legal support to the young people, explains the special nature of this case with the multi-layered approach of the lawsuit, the question of how states contribute to global emissions within and outside their borders. States are not only responsible for the emissions that occur within their national territory and which are currently addressed with far too low reduction targets. They are also responsible for the export of fossil fuels, the virtual emissions associated with the import of goods, and the economic activities of multinational corporations that are legally bound to the states.

Why is this action against cross-border climate change so unique? First, it is the unusual procedure: The ECHR can normally only be invoked if a case has first been brought before a domestic court. However, it is not feasible for young people to file lawsuits in 33 countries at the same time and to see the cases through to the highest national courts, according to the ECHR. The majority of cases filed in Strasbourg are already dismissed at an earlier stage, making this an unprecedented success for the young people. Furthermore, this case is the first international climate lawsuit with the power to issue binding legal rulings. It has the potential to become a landmark within the context of corporate impunity: If this climate case is successful, the sued countries would be legally bound, to tackle the overseas contributions to climate change made by their multinational enterprises as well as to ramp up their own domestic emissions cuts.

Climate litigations, May 2020 – Copyright Grantham Institute

In many other countries, access to justice for individuals or civil society usually involves even greater hurdles, including in Ecuador.

Waorani Community’s suit against fossil fuel company for contributing to climate change

On 26 January 2021, the Provincial Court of Sucumbios ruled in favour of nine girls who had petitioned the Ecuadorian state a year earlier to shut down some 450 natural gas flares, a still-active relic of oil exploitation by Chevron-Texaco and later Petro-Oriental SA since 1967. Petro-Oriental is a subsidiary of Chinese transnational companies China National Petroleum Corporation (CNPC) and China Petrochemical Corporation (SINOPEC), in the Amazon region, particularly in the provinces of Sucumbíos and Orellana. This Chinese company has not only entered into Latin America but also in Africa and other territories in a rather aggressive manner.[3]

The plaintiffs had to overcome many judicial hurdles before achieving this,victory, from the rejection of the injunction to the plaintiffs’ appeal and five postponements of the second hearing: all this can be seen as delaying tactics by the state and the multinationals involved, who speak, for example, of non-existent studies proving increased cancer risks in the oil-producing area. Yet Acción Ecológica, ASTM’s partner organisation, already published such a study in 2017 together with the NGO Clínica Ambiental.

Ecuador – Copyright ASTM

“This ruling is historic because it recognises the violation of several rights of indigenous communities: health, nature and a healthy environment,” said María Espinosa, lawyer for the NGO Amazon Frontlines. “And it recognises that the Ecuadorian state has also systematically violated international obligations, in this case in the fight against climate change.”

But this is not the only legal success in recent years: in 2019, the indigenous Waorani prevented oil drilling in Block 22. In the same year, the indigenous Kichwa stopped the construction of a hydroelectric plant on the Piatúa River in court because of a lack of consultation and a flawed environmental impact assessment.

Lawyer Pablo Fajardo, representing the girls and the Union of People Affected by Texaco (UDAPT), put the ruling in perspective, saying the lawsuit did not demand an end to oil drilling, only to the flaring of natural gas. It is to be feared that this decision, just like the landmark ruling against Texaco-Chevron in 2011, will not be implemented, in this case because important details are missing from the ruling, such as when the flares are to be turned off.

More than $600 million is spent annually by Ecuador on gas imports, Fajardo added. “The flares burn more gas in one year than the demand of the whole country, and we could take advantage of that.” Moreover, just by switching off the flares, Ecuador’s greenhouse gas emissions could be reduced by 24%, the judges said in their ruling.

There are many more ongoing cases that could have been cited here, such as. the lawsuit of a Peruvian farmer against RWE. But this is only the beginning of a wave of lawsuits for global environmental justice that show to what extent people all over the world are willing to fight for their environmental rights and not to let their lives be determined by ecoanxiety.

Maike and Michael Recktenwald, German plaintiffs in the People’s Climate Case said:„ (…) The Court’s decision will not make us stop. The climate movement will continue getting bigger, stronger and demanding justice as more and more people are hit by the climate crisis. (…) We will keep up our legal fight to hold big emitter countries accountable, to enforce consistent climate protection and to guarantee our fundamental rights.”

Similarly, 13-year-old André, one of the Portuguese youths, stated that as long as countries and corporations do not adjust their climate targets to limit global warming to 1.5°, “we will continue to fight with more determination than ever“.