Legal proceedings against climate change
Over the last few years, we are witnessing an increase in the number of climate change litigation around the world. The expansion is both geographical and quantitative. Some cases are taking place in the United States, in France, others in Colombia and even in Pakistan. There is a real global awareness of the urgency and danger of the climate situation. An increasing number of associations and NGOs are no longer hesitating to initiate legal proceedings against states or entities that they consider to be responsible for climate change in the hope of obtaining a condemnation forcing them to act and take concrete decisions and measures to reduce the effects of climate change.
A first step in this direction was made in the Urgenda climate case.
The Urgenda case
Urgenda is a Dutch foundation engaged in developing plans and measures to prevent climate change. In 2012, the foundation decides to request, on behalf of the interests of more than 900 residents of the Netherlands, the Dutch courts to issue an order instructing the State to limit the volume of greenhouse gas emissions in the Netherlands.
On 20 December 2019, the Dutch supreme court confirmed the decision of the Hague Court of Appeal which states that the Dutch State is obliged to reduce, by the end of 2020, the emission of greenhouse gases originating from Dutch soil by at least 25% compared to 1990.
This is a historic decision regarding climate change litigation, because for the first time, a supreme court acknowledged the existence of a scientific consensus on the seriousness of climate change, the contribution of human activities to climate change and the obligation of States to set national targets for the reduction of greenhouse gas emissions. This decision will inspire other jurisdictions and that it will have a considerable impact in international discussions on climate change.
Does this apply to private companies?
First of all, it should be pointed out that although the majority of legal actions are directed against States, there are already legal actions initiated against large companies. For example, a French public collectivities and associations joined forces to bring a lawsuit against Total on January 28, 2020. They accuse the giant energy company of inaction on climate change and are taking legal action to force the Total Group to take the necessary measures to drastically reduce its greenhouse gas emissions. There is also an action, still ongoing, of the NGO Friends of the Earth Nederland against the fossil fuel combustion company Shell. This case is particularly interesting because the lawyer of Friends of Earth was also the lawyer of Urgenda and the arguments put forward are directly inspired by those of the Urgenda case.
In order to determine whether it is possible to conclude from the Urganda decision that companies have an obligation to reduce their greenhouse gas emissions, it is necessary to analyse whether the arguments used by the Dutch Supreme Court can be extended to private companies. Basing our arguments on those of Friends of Earth is essential, considering that at the end of the day, the goal of their action is to apply the Urgenda decision to a private company.
In the Urgenda case, the Supreme Court begins by pointing out that the dangers and imminent consequences of climate change are internationally recognised. There is a high degree of consensus between the climate scientist that a reduction of greenhouse gas emissions is necessary to avoid extreme climate consequences. Those observations were included in various international agreement, including the Paris Agreement of 2015 which was signed by a lot of countries, including the Netherlands. So the State acknowledged and agreed with the facts stated above. There was therefore a genuine commitment by the Netherlands to reduce their greenhouse gas emissions.
Secondly, the Supreme Court states that the Dutch State has violated the article 2 of the ECHR, which protects the right to life, and the article 8, which protects the right to respect for private and family life. They based their decision on an interpretation of the two provisions of the ECHR according to which those provisions create a duty of care implying that a state has an obligation to take appropriate and suitable measures to protect the citizens if there is a real and immediate risk to people’s life and well-being and if the state in question is aware of that risk.
Regarding private companies, it is more complicated to attribute to them a commitment to reduce their greenhouse gas emissions since, unlike States, private companies aren't parties to major international agreements related to the climate such as the Paris Agreement of 2015 or the Kyoto Protocol. However, this doesn’t mean that companies are untouchable. One possibility would be to provide evidence that a company not only acknowledges the existence of the dangers of global warming but also acknowledges its role as a contributor.
If the company does not change its behaviour and continues to exploit pollutants by neglecting the dangers of global warming or by having an unambitious climate policy despite being aware of the dangers and the risks for the population, the company's negligent behaviour may be interpreted as illegal in the sense that it would be a deliberate violation of Articles 2 and 8 of the ECHR.
The European Convention on Human Rights must be respected by states, but it has an indirect horizontal effect and therefore must also be respected by companies. That means that even if the duty of care invoked in the Urgenda case is based on an interpretation of Articles 2 and 8 that only has been applied to states, you can also use it against companies. Friends of the Earth also makes the argument that since some large fossil fuel companies emit a much higher amount of greenhouse gases than States such as the Netherlands, thus if the Netherlands has a duty of care implying that it must take measures to limit its greenhouse gas emissions because they were too dangerous, these private companies must, by analogy, have an even more important duty of care.
Every company can be individually called to account in that respect if, on the basis of its own conduct, we can determine that the company doesn’t take suitable measures and really puts in danger the lives and welfare of the Dutch citizens.
Are judges to save the planet?
In the decision of 20 December 2019, the Dutch Supreme Court clearly ruled that the state has an obligation to set a target for the reduction of greenhouse gas emissions. Currently, it is not possible to determine with certainty whether this obligation does or does not apply by analogy to private companies. It will of course depend on each specific case.
The arguments put forward above appear legally solid at first sight, even if, at the end of the day, they do not guarantee a positive outcome for the associations. This uncertainty is due to the fact that, unlike states, private companies are not parties to international conventions in which they commit themselves to achieving a certain level of reductions of greenhouse gas emission within a certain period of time. Therefore, they cannot be held accountable for such an obligation. This is the reason why the majority of lawsuits are directed against governments. The chances of success are more higher.
These ambiguities might soon be over. The Dutch courts will soon have to rule on the lawsuits of Friends of Earth Nederland against Shell. If Shell is condemned to an obligation to reduce its greenhouse gas emissions, the decision will be as historic as the Urgenda decision because for the first time a private company will be considered responsible for global warming and will have an obligation to reduce its contribution.
Avocat Sub Rosa Legal