ECtHR Climate Litigation: Youth Taking the Lead Once Again by Jacob Hudson

Page 54 well as moves to set concrete objectives to achieve net-zero carbon emissions. What can be inferred from McVeigh v REST is that investment funds must be aware of these changes and have protocols in place to mitigate any losses incurred, particularly in Australia where it is mandatory for financial contributions to be made and losses have the potential to significantly and adversely impact retirement funds.

The fact that REST committed to these substantial goals in the absence of a court order also indicates that disclosure law is a particularly compelling avenue when it comes to climate change litigation. Although the “misleading and deceptive” cause of action in McVeigh is similar to “duties of reasonable care” rooted in tort law, it seems that the public disclosure route is far more convenient and prone to success. Since the success of Urgenda in 2015, there have been recurring debates about the potential for, and problems involved in, allowing similar litigation based on tort law in Australia. Claims rooted in negligence or nuisance demand at a minimum a demonstration of actual harm and commonly a more extensive demonstration of causality. The most well-known environmental law cases such as AEP v Connecticut and Comer v Murphy Oil have failed on these particular elements in the past. The public disclosure avenue seems like a convenient method to circumvent these legal requirements and achieve the same or similar outcomes in cases that might have failed if they were rooted in tort law.

McVeigh is by no means the first litigant to rely on this avenue, with attempts being made in various other cases of this nature However, no case had been successful up to this point. The first case about climate-related financial risk was filed in the US, for alleged misrepresentations to the public and investors about how Exxon accounted for the costs of climate change regulation but failed. Similarly, a shareholder claim brought in 2017 against the Commonwealth Bank of Australia (CBA), argued that climate-related risks were material financial risks to the bank and that the bank had breached the Corporations Act 2001 because of inadequate disclosure of this risk. The case was withdrawn after the CBA included references to climate risk in its next annual report. In September 2018, the Australian Securities and Investments Commission issued a set of recommendations in its report, highlighting that managing climate risk is an important governance and disclosure issue.

Although it would have been more interesting and meaningful from a legal perspective if the Australian Federal Court had adjudicated on the matter in McVeigh, the case and the overall developments in the Australian jurisdiction suggest that the consideration of climate change-related risk is finally evolving as industry best practice, and that statutory disclosure regimes could be an emerging frontier for climate litigation in Australia.

ECtHR Climate Litigation: Youth Taking the Lead Once Again

By Jacob Hudson, JF Law and Political Science

One of the most powerful characteristics of the fight for climate action has undoubtedly been its age profile. From Greta Thunberg, the teenage stalwart of the modern environmentalist movement, to the millions of students around the world who took to the streets over climate change inaction. It is apparent just how passionate and engaged the global youth are in protecting their own futures. Now they have taken yet another important step in the field of climate litigation on the floor of the European Court of Human Rights (ECtHR), with the crowd-funded support of the Global Legal Action Network (GLAN), a not-for-profit human rights law firm located in both London and at the Irish Centre for Human Rights in NUI Galway.

Page 55 Activism young adults (aged between 8 and 21) against thirty-three members of the Council of Europe. The applicants contend that the EU 27, Norway, Russia, Switzerland, Turkey, Ukraine, and the United Kingdom are in breach of their obligations under Articles 2, 3, 8, and 14 of the European Convention of Human Rights (ECHR). Remarkably, the case has been ‘fast-tracked’ to the ECtHR, without fulfilling the admissibility criteria of exhausting all ‘domestic remedies’ as outlined in Article 35 of the Convention. The plaintiffs argue that it would be unreasonable for them to take each of the thirty-three countries to court in their own domestic legal systems. Nonetheless, this decision to fast-track by the ECtHR is as remarkable as it is significant – climate litigation is clearly becoming increasingly salient in human rights law. Although this may be the first climate case in front of the ECtHR, other cases have been springing up in front of the domestic courts of European nations. In the Dutch Supreme Court in 2019, the organisation Urgenda, won against the Netherlands for their violation of the ECHR in failing to meet their self-imposed emissions targets. Furthermore, The Irish Supreme Court case Friends of the Irish Environment v the Government of Ireland was decided in favour of the environmentalist group in July of 2020. Therefore, many argued a case of climate change litigation before the ECtHR was bound to appear soon.

In their application form to the Court, the plaintiffs accused the respondent states of failing to sufficiently reduce their territorial emissions and, to take responsibility for the impact of their own emissions overseas. The latter is an integral part of their argument. As former Secretary General of the United Nations Ban Ki Moon once said, “emissions released anywhere contribute everywhere.” The fact that the carbon emissions of the 33 respondents are actively causing rising sea-levels, wiping out small island nations of the Pacific Ocean is no doubt a central motive for this case. The applicants argue that the a) export of fossil fuels, b) import of goods containing embodied carbon, c) fossil fuel extraction and financing of it, and d) allowing of entities within their jurisdiction to contribute to the release of emissions overseas constitute a breach of Articles 2, 8 and/or 14 of the ECHR.

Article 2, the right to life, and Article 8, the right to respect for private/family life, are the most commonly plead breaches in environmental litigation in domestic courts. Climate change poses a palpable threat to one’s life; increased flooding due to rising sea levels and stronger storms is one example of this. What is particularly pertinent in this case is the backgrounds of the applicants. All of whom were affected by the 2017 forest fires in northern and central Portugal which left 121 dead and half a million hectares of scorched land in its tracks. Furthermore, as explained in the application, climate change can also expedite the spread of fatal diseases such as malaria and dengue fever, no more so than in the developing world.

Similarly, Article 8 is pleaded in respect to the effect on the lives of the applicants stemming from climate change, especially in relation to the Portuguese forest fires. The youths contend that climate change has and will infringe on their ability to exercise, enjoy their natural surroundings, and sleep. In Tatar v Romania, the Court declared Article 8 provides for positive obligations upon states to ensure “a healthy protected environment” for those within their jurisdiction. Of course, there is no case law in climate change disputes for the ECtHR to rely on. However, Tatar and Budayeva v Russia, which imposes positive obligations on states to prevent natural disasters, could be persuasive for the court.

The final provision of the Convention allegedly breached that is outlined in their application form is Article 14, the prohibition of discrimination; in particular on the grounds of age. They argue climate change disportionately affects the youth of the world, as they will live to see the devastating effects in the future. As elucidated upon by GLAN, the youngest applicant, Mariana, will be eighty-eight years old in the year 2100. By then, if climate change proceeds at the current rate, temperatures will be 4°C hotter than the pre-industrial world. This could lead to month-long 40°C heatwaves every summer in Portugal. For these reasons, it is said that the actions of the respondents amount to age discrimination when read with Article 2 and 8.

Activism Page 56 the principle of iura novit curia - “the court knows the law best).” However, what is unorthodox is that Article 3 that was raised – an unconventional avenue to proceed in climate litigation, as of yet. In the past, the ECtHR has held a high bar for Article 3 disputes and in the remit of climate change where there is no case law to rely upon, it will be interesting to see how the Court will ajudge their own pleading.

In Bouyid v Belgium, the minimum level of severity for a breach of Article 3 amounts to “actual bodily injury or intense physical or mental suffering,” and in absence of this, if treatment “humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance.” These feelings of fear stemming from climate change-induced natural disasters, such as the forest fires of Portugal, could be argued on behalf of the plaintiffs to arouse “fear” and “anguish” and indeed be “capable of breaking an individual’s... physical resistance”, especially as these events become increasingly widespread. Furthermore, in Dogenay v Turkey, “a sense of vulnerability” amounted to be a factor in contributing to a breach. The Court must ask itself the question – “are the applicants, as children and young people, particularly vulnerable to climate change?” Indeed, they might be. It was decided in Atesoglu v Turkey that children were especially “vulnerable,” reducing the threshold for breaches of Article 3.

Furthermore, the Court has made it clear on numerous occasions that there are positive obligations upon states to adequately prevent breaches of Article 3. In Volodina v Russia, the Court required states to establish “adequate legal frameworks affording protection against ill-treatment of what the authorities knew or ought to have known.” Perhaps this could mean, within the remit of climate litigation, states must introduce adequate regulation to reduce emissions, so as to prevent the suffering of individuals in their jurisdiction. What exactly does this mean? Well, in the application form, it is intended that anything less than the 1.5°C cap in growth in global temperatures of the Paris Climate Agreement should be enough to cause breaches of the ECtHR. It is not unusual at all for the Court to consult other sources of international law and the Paris Agreement could be a useful instrument in determining whether states have fulfilled their positive obligations.

However, with the sheer amount of cases before the ECtHR, it looks like we will be waiting a while for a judgement on this particular case, despite its “fast-tracking.” Nonetheless, it is an important judgement for European climate litigation. The introduction of Article 3 is a novelty in these cases, but the fact it was submitted by the Court, shows at least some chance of success on these grounds. What is a great inspiration to us all is the youth of the applicants. It proves that access for justice is for all, especially on such crucial issues that decide our own futures and that of the Earth. There may be high bars for Catarina, Cláudia, Martim, Mariana, Sofia, and André to overcome but may their passion, resilience, and dedication permeate through.

“From Greta Thunberg, the teenage stalwart of the modern environmentalist movement, to the millions of students around the world who took to the streets over climate change inaction. It is apparent just how passionate and engaged the global youth are in protecting their own futures.”

“Right here, right now is where we draw the line. The world is waking up. And change is coming whether you like it or not.” -Greta Thunberg

“The greatest threat to our planet is the belief that someone else will save it.” -Robert Swan