Climate Law Insider, Newsletter 3/2020

List of Contents: French Supreme Administrative Court: Government’s climate objective is legally binding. Climate litigation before the European Court of Human Rights gathers pace. Australia: the first lawsuit against a trust fund on climate change grounds. The Escazú Agreement due to enter into force. U.S. Climate policy post-election. COP26 – struggling to keep up the momentum?

- French Supreme Administrative Court: Government’s climate objective is legally binding -

Big success in the administrative climate case brought forward by the town of Grande Synthe in France: the Conseil d'État held on 19 November 2020 that the government's climate objectives and its plan to achieve them are legally binding. The French government now has three months to justify that its greenhouse gas emission reduction path to 2030 can be achieved. After regularly exceeding its carbon budget and missing its reduction targets, the coastal municipality asked the government to take additional measures, which the government refused. Before issuing a final ruling, the court now asks the government to justify how its refusal to take additional measures is compatible with its 2030 reduction targets. According to the four NGOs that have supported this effort, namely Notre Affaire à Tous, Fondation Nicolas Hulot, Greenpeace France, and Oxfam France, this decision already represents a ‘real revolution in law’. They note that ‘Programmatic climate laws have so far been considered by successive governments and parliaments as vague promises. The French state must now commit its legal obligations and implement concrete and effective measures to achieve these goals.’ In other jurisdictions, governments are also being sued for their inadequate efforts to fulfil their climate targets. The Irish Supreme Court ruled in Friends of the Irish Environment in August this year that the government must create a new, more ambitious National Mitigation Plan that specifies how emission reductions will be achieved to comply with Ireland’s national and international climate obligations. Meanwhile, the German government is facing a potential court order to adopt more ambitious measures to reach its emission reductions targets in the transport sector.

- Climate litigation before the European Court of Human Rights gathers pace -

The climate case brought by six Portuguese youth before the European Court of Human Rights (ECHR) against 33 European countries for their inaction to combat climate change is making progress – and has recently been joined by a lawsuit filed by a group of Swiss senior women. Not even three months after it was filed, the ECHR announced its decision to fast-track the climate case because of the ‘importance and urgency of the issues raised’. The Court sent a series of questions to the 33 respondent European countries, asking them to respond to the complaint by the end of February 2021. Meanwhile, a lawsuit filed in November 2016 by the Swiss association ‘KlimaSeniorinnen Schweiz’ made its way to Strasbourg. They argue that Switzerland has not only failed to set climate targets in line with the Paris Agreement and best available science but also failed to meet its inadequate 2020 targets. After a denying decision by the Swiss Supreme Federal Court in May this year – and thus after the required exhaustion of national remedies – the KlimaSeniorinnen applied to the ECHR. By contrast, the Portuguese youth applied directly to the ECHR by relying on an exception to this rule by arguing that there was no adequate remedy reasonably available to them. Both cases allege violations of Art. 2 ECHR, the right to life, and Art. 8 ECHR, the right to respect for private and family life. In addition, the Portuguese youth invoke the prohibition of discrimination (Art. 14 ECHR) because of their age, while the KlimaSeniorinnen also rely on Art. 6 and 13 ECHR, which guarantee the right to a fair trial and an effective remedy. While it can be expected that the admissibility of the cases will be subject to vigorous dispute, the ECHR appears to take the issue seriously.

- Australia: the first lawsuit against a trust fund on climate change grounds -

Mark McVeigh, a 25-year-old environmental scientist from Brisbane, has successfully settled a court case with the Retail Employees Superannuation Trust (Rest) — one of Australia's largest super funds with $41 billion— for failing to disclose or assess the details on how it will minimise the risks of climate change on its investments. The claimant argues that this omission breaches the Superannuation Industry Act and the Corporations Act because the fund neither provides information on risks related to the plummeting value of fossil fuel companies nor on how extreme weather will damage infrastructure. As part of the settlement, the fund committed to disclose its full portfolio holdings, conduct climate scenario analyses to inform its investment strategy and advocate for the companies it invests in to comply with the Paris Agreement. McVeigh’s lawyer, David Barnden of Equity Generation Lawyers, remarked this was the first time a major Australian super fund had agreed to settle a case about the financial risk and implications of climate change to protect its members. The litigation may ring familiar to another Australian case from 2017 when the Commonwealth Bank of Australia began estimating climate risks in its annual report after shareholders said in a lawsuit it broke the law by not disclosing the potential impact on its business.

- The Escazú Agreement due to enter into force -

On 5 November 2020, Mexico ratified the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, or Escazú Agreement, thereby satisfying the minimum number of parties required for its entry into force. States from the region adopted this treaty on 4 March 2018, after two years of preparatory meetings under the auspices of the United Nations Economic Commission for Latin America and the Caribbean. According to Article 22, the Agreement shall enter into force 90 days after the eleventh state party deposits its instrument of ratification. The ratification of Mexico as the eleventh party comes on the heels of Argentina’s Chamber of Deputies’ ratification. To date, 24 of the 33 States of the region have signed the treaty. Crucially, the Escazú Agreement is the Latin American rendition of the Aarhus Convention, a treaty that has enhanced environmental democracy over the years in Europe. In a similar vein, the Escazu Agreement represents a new legal framework capable of tackling climate change concerns by protecting procedural environmental rights and providing guarantees for environmental defenders, whose lives are constantly at risk in the most dangerous continent to defend the Earth.

- U.S. Climate policy post-election -

‘Re-join Paris on day one’ – that is the promise that president-elect Joe Biden and vice-president-elect Kamala Harris made throughout their campaign. In the aftermath of the U.S. elections, many observers noted how significant the change of leadership is for domestic and international climate policy dynamics. The decision by Biden and Harris to give John Kerry, former secretary of state and one of the architects of the Paris Agreement, a seat in the National Security Council led to a second wave of relief and excitement in the global climate action community.

Much has been written about the legal competencies and limits of a president in the absence of a majority in the U.S. Senate. The actual implications of Biden’s win for domestic climate politics therefore depend on the run-offs in Georgia in January 2021 and subsequent elections. At the international level, however, the election of Joe Biden is regarded as one of the much-needed signals to keep up the momentum of the Paris Agreement in climate diplomacy and motivate more and more countries to ratchet up their ambitions. One of the most important dimensions in this context will be the relations between China and the U.S. Earlier this year, Robyn Eckersley published relevant research on the different roles of China and the U.S. in negotiating the Paris Agreement; we should watch very closely how these roles evolve in the coming years.

- COP26 – struggling to keep up the momentum? -

Since the outbreak of Covid-19, a key task for international climate policy has become even more difficult than before: keeping the climate issue on the political agenda of ministers and heads of states and governments. In the last months, the United Nations Framework Convention on Climate Change (UNFCCC) – including Parties, observers and the Secretariat –, subnational governments and civil society tried to make up for the postponed COP26 in Glasgow by organizing a series of virtual events such as the June Momentum, the Race to Zero Dialogues in November, and the Climate Change Dialogues in December 2020. At the same time, the British Government, as the host of COP26, presses ahead with its Ten Point Plan for a Green Industrial Revolution. Numerous national and subnational initiatives give the impression that climate policy is still high on the political agenda. But there is still a long way to go before COP26 – especially in times of the pandemic. In November 2021, we will see whether this momentum has been sufficient, and an ambitious negotiation outcome can be achieved. Until then, Climate Strategies’ reports from former COPs are a great way to study the dynamics of past climate conferences and prepare for the tough negotiations ahead.

Kind Regards,

Anne, Juan, and Felix

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