Litigation on climate and human rights

Our key takeaway: Two historic court decisions (in the UK and Brazil) and several ongoing cases at the European Court of Human Rights are the latest examples of how governments are being held accountable for their commitments to climate change and human rights—or lack thereof. These cases come amidst a rising tide of climate-related litigation against both the public sector and the private sector, some of which are linking commitments to address climate change to the responsibility to respect human rights. 

We highlight a roundup of three recent legal developments pertaining to climate change and human rights:

• UK High Court rules that the government’s Net Zero Strategy breaches the Climate Change Act: In Friends of the Earth Limited, Client Earth, Good Law Project and Joanna Wheatley v. Secretary of State for Business Energy and Industrial Strategy, the UK’s High Court ruled that the government’s Net Zero Strategy, which establishes the country’s plans to decarbonise its economy, breaches the UK Climate Change Act. According to an analysis by the claimants, the court found that the Net Zero Strategy “doesn’t meet the government’s obligations under the Climate Change Act to produce detailed climate policies that show how the UK’s legally-binding carbon budgets will be met. It also finds that parliament and the public were effectively kept in the dark about a shortfall in meeting a key target to cut emissions.” The claimants also note that “[d]uring the court proceedings, it emerged that behind-the-scenes calculations by civil servants to quantify the impact of emissions cuts from policies in the government’s Net Zero Strategy did not add up to the reductions necessary to meet the sixth carbon budget – the volume of greenhouse gases the UK can emit during the period 2033-37” and that this information was not shared with parliament nor made publicly available. The Financial Times reported that the judge said that a “detailed and quantified explanation of how the policies would achieve net zero greenhouse gas emissions by 2050 was important for holding ministers to account and for ‘transparency’.” The judge further “ordered ministers to publish an updated strategy by the end of March 2023.” Ultimately, the claimants assert that the outcome of the case “stresses the importance of government transparency and the essential role of parliamentary accountability in efforts to tackle the climate crisis.” 
• Brazilian Supreme Court finds that the Paris Agreement is a human rights treaty: In PSB et al. v. Brazil (on Climate Fund), the majority of the Brazilian Supreme Court ruled that the Paris Agreement is a human rights treaty. According to an analysis by Maria Antonia Tigre in the Climate Law Blog for the Sabin Center for Climate Change Law at Columbia University Law School (July 2022), “[t]he case, which was filed in 2020, relates to the government’s failure to disburse payments from the Climate Fund [which] is mandated to direct its annually authorized budget to projects and studies working towards climate change mitigation and adaptation.” Per Tigre’s analysis, the plaintiffs in the case “sought a declaration of ‘unconstitutional omission’ against the paralysis of the Fund’s operations and governance and an injunction compelling the government to reactivate the Climate Fund. In response, the government argued that (a) there was no constitutional question as the Constitution does not explicitly mandate the creation of a Climate Fund; (b) the facts in question relate to the management of funds, a federal government’s prerogative; and (c) the Court’s interference would violate the separation of powers doctrine.” According to Tigre’s analysis, the Supreme Court, however, established that “the executive branch has a constitutional duty to execute and allocate the funds of the Climate Fund to mitigate climate change, based on both the separation of powers and the constitutional right to a healthy environment.” An unofficial translation of the decision (published by the Sabin Center) states that “the Constitution recognizes the supralegal character of the international treaties on human rights to which Brazil is a party, under the terms of its article 5, §2. And there is no doubt that the environmental issue fits the hypothesis. … Treaties on environmental law are a species of the genus human rights treaties and enjoy, for this reason, supranational status. Thus, there is no legally valid option of simply omitting to combat climate change.”
• European Court of Human Rights adds another climate case to its docket: The European Court of Human Rights has moved forward Duarte Agostinho and Others v. Portugal and Others to be examined by the court’s top panel, the Grand Chamber. In an analysis, Maria Antonia Tigre summarizes the case: "In Duarte Agostinho, six Portuguese youth filed a complaint against 33 countries alleging that the respondents violated petitioners’ human rights by failing to take sufficient action on climate change and requested EU member countries to take more ambitious domestic action. The applicants allege that wildfires and increased temperatures affect their human rights and further breach the prohibition of discrimination due to climate change’s disproportionate impact on younger generations. The case was taken directly to the ECtHR without first exhausting domestic remedies, based on the urgent need to address the climate crisis.” She also notes that, “of the 22 cases currently pending before the Grand Chamber … three are climate cases. Earlier this year, the ECtHR had referred to the Grand Chamber two other climate cases, KlimaSeniorinnen v Switzerland and Carême v France.