STATES BEFORE THE COURT: Will lawsuits protect the environment?

One of the greatest challenges of today's society is the ongoing climate change. Human influence increases the concentration of greenhouse gases and subsequently warms the atmosphere and ocean. States are committed to mitigating the deteriorating effects of climate change, but the current pace is insufficient. Citizens are therefore increasingly trying to enforce the active approach of states before courts, and courts impose various obligations on states.

Most states in the world, including Slovakia, undertook in the year 2015, through the Paris Agreement, to intensively reduce the effects of the climate crisis by reducing greenhouse gas emissions. However, the states are not meeting their emission reduction commitments at a sufficient pace. The inaction of states in tackling climate change is increasing the dissatisfaction of society, which seeks the right to the protection of the environment. Initiatives are increasingly emerging around the world seeking to achieve the adoption of effective measures through the so-called climate lawsuits.

The connection of the negative effects of climate change with a specific polluter is still problematic, despite scientific progress, which is why most lawsuits are directed against the states. Courts have repeatedly sided with citizens in their ruling on climate lawsuits and imposed various obligations on the states leading towards active reduction of emissions. In order to achieve emission reductions, the states must regulate the industries that contribute most to their production. The key industries are transport, cement production and energy production from fossil fuels.

In their decisions, the courts recognize the right of citizens to the protection of the environment and state that the states have a duty to protect it. Environmental protection is therefore a real claim, which citizens can enforce against the state in court. In other words, the states are obliged to take action leading towards the reduction of emissions. However, if their efforts are not sufficient, they interfere with the rights of citizens and citizens then have a real possibility to defend themselves against such interference before a court, which has the competence to impose obligations on the states.

Will there be a climate lawsuit in Slovakia?

Manifestations of climate change are increasingly perceived in Slovakia as well, especially in the form of extreme heatwaves, the merging of the seasons and extreme weather changes. In proportion to the intensity of these changes, public interest in the problem of climate change and its solution is also increasing. However, specific steps to solve this problem are still absent in Slovakia. There is no comprehensive legislation to address this issue.

Just like in the other states, in Slovakia, as a result of insufficient state activity, various citizen initiatives are emerging, which try to prevent such inaction by various means. The Climate Needs You initiative has come to the forefront, which, through a petition, seeks to ensure that the government recognizes the climate crisis as one of its main priorities and takes specific steps to address it. The petition was well received, with almost 130,000 people signing it, which is a result comparable to similar initiatives abroad.

The petition was discussed by the Plenum of the National Council of the Slovak Republic, which subsequently issued a non-binding resolution in which it reiterated the commitments from the government's program statement. The state of climate emergency has not been declared and the requirements set out in the petition have not been met. Given the reaction of state authorities, the initiative is likely to step up its activity following examples from abroad. It is therefore possible that the courts in Slovakia will also decide whether the state is sufficiently fulfilling its obligations and, if necessary, determine the steps that it will have to take to fulfil them.

The Defendant Czech Republic

The initiative to combat state inaction in relation to climate change has also emerged in the Czech Republic. The association Czech Climate Litigation aims to legally persuade the state to address the climate crisis. It assumes that the state should respect the rights of its citizens and protect them, so it should pursue a responsible policy with regard to climate change. It considers the Czech Republic's plans to reduce greenhouse gas emissions and further sustainable development to be insufficient. It considers the climate lawsuit to be a way of forcing the state to act responsibly towards the society.

In April 2021, the association Czech Climate Litigation filed an administrative claim against the Government of the Czech Republic and its ministries. The association claims that the Czech Republic violates its legal obligations arising from the legal order of the Czech Republic, including international obligations. According to the association, the government does not consider the climate change seriously, postpones the necessary laws, does not follow its own policies and does not invest in clean technologies. Therefore, the association demands the court to determine that public authorities are interfering in the rights of citizens by failing to take sufficient measures to reduce emissions and to stipulate that public authorities are obliged to refrain from such interference.

It is therefore possible that in the foreseeable future we will have a court verdict assessing whether the Czech Republic is sufficiently fulfilling its obligations in relation to the climate. If the court decides that the state is not making sufficient efforts in this regard, it will be interesting to monitor what obligations it will impose on state authorities. The degree of specificity of the imposed duties and the intensity of the intervention of the judiciary in the agenda of the executive power also differ significantly in the countries of the European Union. Due to a similar legal order, the Czech and Slovak courts are often inspired by each other. Therefore, this decision of the Czech court will be of great importance for Slovakia as well.

With regard to the development of similar cases before the European courts, it can be expected that in the Czech Republic, too, the climate lawsuit will reach the Czech Supreme Administrative Court, or the Constitutional Court. Pending the final decision on this claim, we have a number of decisions from the European environment that often inspire initiatives arming against the states.

How have the climate lawsuits been decided by European courts?

For climate protection the decision of the Dutch Supreme Court in the year 2019 was ground-breaking. In the year 2015, the Dutch Non-government organisation Urgenda filed a lawsuit against the state. It has based it on scientific studies, according to which the policies presented by the state to mitigate the effects of climate change are not sufficient.

The court of first instance agreed with this conclusion and stated in its decision that the state has a duty to protect its citizens from the effects of climate change. Despite public opinion, which enthusiastically accepted this decision, the state authorities appealed against it. The case came before the Dutch Supreme Court. It upheld the decisions of the lower courts and imposed a very specific obligation on the state to reduce greenhouse gas emissions by at least 25% compared to the year 1990, by the end of the year 2020.

It also stated that the set goals should be interpreted as a minimum standard and the state should ensure that it meets the set goals to the highest extent possible and is not satisfied merely with achieving the set goals.

In contrast, in the year 2020, the Irish Supreme Court ruled on a lawsuit filed by the organisation Friends of the Irish Environment. It argued that the "mitigation plan", which is the Irish equivalent of climate protection and emission reduction policy, did not meet legal requirements because it did not specify the ways in which this objective was to be met. The court of first instance ruled in favour of the state, stating that the plan did not have to contain specific objectives. However, the Supreme Court later ruled that the mitigation plan was not detailed enough and ruled that state authorities must revise it. However, unlike the Dutch court, it did not set a specific level of obligation for public authorities.

We can also consider the judgment of the Paris Supreme Administrative Court to be another ground-breaking decision. In the year 2018, four French associations fighting for climate protection decided to join forces and set up the Affaire du siècle initiative. The initiative prompted a petition to gain sufficient support for a lawsuit against the state for inaction in the fight against climate change. The petition was successful, signed by more than 2 million people, and the initiative brought an action before the Paris Administrative Court.

The Affaire du siècle requested the court to rule that the measures taken by the public authorities in relation to the climate were insufficient and imposed the obligation on the state to comply with its obligations under the Paris Agreement to reduce emissions. The organization also demanded a symbolic 1 euro as compensation for the damage caused. The Paris court ruled that the state was not sufficiently fulfilling its obligations and ordered the state authorities to take more stringent measures. This decision is also interesting as the court stated that it could not impose specific obligations on the government, especially in the area of energy.

The German Constitutional Court and the right to a clean future

So far, the last important decision regarding the climate is the recent decision of the German Constitutional Court of April 2021. Based on a complaint from a group of young people, it ruled that the German Climate Act of 2019 is unconstitutional. The court's ruling is based on the fact that the law does not plan to reduce emissions sufficiently to meet the obligations under the Paris Agreement.

The court worked with the term of the so-called carbon budget. It expresses the maximum amount of emissions that can be released within the territory of a state in order for the obligations arising from the Paris Agreement to be met. At present, Germany would have exceeded this budget by the year 2030, which, according to the court, would subsequently lead to even stricter measures.

The Court found that exceeding the carbon budget before the year 2030 would violate the fundamental rights of the complainants unless it is already happening in the present. According to the court, the legislation unequally distributes the carbon budget between the current and future generations, due to which it is unconstitutional. Exceeding the budget would mean more drastic measures, which would result in a restriction of rights and freedoms to an unacceptable extent compared to the present.

In its judgment, the court states that regulations that allow for CO₂ emissions irreversibly jeopardize future rights and freedoms, as each unit of emissions currently released reduces the chance of achieving the set targets in the future. The provisions of the Constitution are therefore also binding when it comes to political processes, and that with regard to future generations who will be particularly affected by the climate change. The state must respond in accordance with the precautionary principle and take actions to the maximum extent possible. The Constitutional Court ordered the legislature to lay down clear provisions governing emission reduction targets from the year 2031 by the end of the year 2022.

At the end of April, the German authorities announced that they would amend the climate law as soon as possible, in line with the Constitutional Court's ruling. The German Constitutional Court has left the state authorities a degree of discretion in how to achieve the obligations under the Paris Agreement, but they will nevertheless have to adopt a series of restrictions in order to bring the current legislation into line with constitutional rights. The result is likely to be stricter measures concerning CO₂ emissions, and therefore stricter restrictions on the relevant industries.

What will the court decisions affect

In recent years, the struggle for the environment has reached courtrooms. There is a high probability that the number of climate lawsuits will increase, and the courts will assess in their decisions whether the states are sufficiently complying with the obligations to which they have committed themselves, and possibly also determine the obligations for state authorities to remedy them. However, the intensity of the obligations imposed already varies from country to country.

Regardless of the extent, to which a particular court decides to intervene in the executive's agenda, public authorities will need to adopt a set of measures to reduce emissions. In order for the states to achieve significant emission reductions, the industries that produce them will need to be strictly regulated. In principle, it can be stated that the states will be forced to take the necessary measures to the maximum extent possible and as soon as possible. Should they neglect their commitments, the measures taken in the future will have to be much stricter.

The court decisions will have the greatest impact on the industries that produce the most emissions. The measures will mainly affect industry, but in principle they will also affect ordinary citizens. States that are already active in reducing emissions will focus in particular on transport and energy and reducing the use of fossil fuels in these industries. In energy, the greatest emphasis is placed on the use of renewable energy sources and in transport on the use of alternative fuels. However, the form of the measures is not uniform. In some countries, restrictive measures prevail, in others it is measures in the form of various benefits.

If efforts of the states to reduce emissions are insufficient, it is likely that the citizens will demand sufficient actions before the courts, and they will impose more or less stringent obligations on the states. However, the question remains whether the states will respect the decisions of the courts, or how it will be possible to enforce the obligations. But this is another topic for a separate article.