Will Rights-Based Climate Change Litigation Find a Foothold in the UK Courts?

Published on: 04/05/2022

There has been a marked increase in the number of climate change-related claims in recent years: of the 1,950 climate change-related claims that have been filed globally since the 1980s, more than 1,100 were commenced in the last six years. In addition to the increased number of claims, claimants are also becoming more successful, as they have pivoted away from claims for compensation in favour of rights-based claims, directed at changing the behaviour of defendants in relation to their impact on the climate.

Prior to 2015, climate change litigation predominantly involved claims for damages against large oil and gas companies, on the basis that these companies produce and distribute products that emit greenhouse gases. However, these claims struggled to succeed due to the challenges in establishing a direct causal link between the alleged climate-related harm and a specific company’s emissions. Claimants have therefore changed tack, and rather than seeking compensation for climate change-related harm, they are focusing their claims on challenging the behaviour of defendants, often invoking fundamental human rights enshrined in national constitutions and international conventions. Claimants are also seeking to hold governments accountable to their climate commitments under the Paris Agreement and challenging whether their policies are sufficient to meet such commitments

There has been a run of landmark decisions which have seen claimants succeed with rights-based arguments, starting with the Urgenda decision in the Netherlands. In this case, the Urgenda Foundation claimed that the Dutch government had failed to take sufficient action to reduce its carbon emissions, in violation of the government’s duty of care to its citizens under Articles 2 (Right to life) and 8 (Right to respect for private and family life) of the European Convention on Human Rights. The claim was granted by the District Court of the Hague in June 2015, thereby ordering the Dutch government to reduce its GHG emissions by at least 25% (compared to 1990 levels) by the end of 2020. The decision was appealed, but was ultimately confirmed by the Supreme Court in 2019.

Following the breakthrough judgment, the governments of four other European countries have been held by their national courts to have failed to implement their climate commitments, in breach of human rights standards:

  • in July 2020, the Supreme Court of Ireland decided that the plan adopted under the Climate Action and Low Carbon Development Act was ultra vires because the measures were not sufficiently specific to allow a reasonable person to judge whether it was realistic and whether to agree with the policy options;
  • in April 2021, the German Constitutional Court annulled part of the German Federal Climate Change Act for violation of constitutional rights by insufficiently cutting GHG emissions beyond 2030;
  • in June 2021, the French-speaking Tribunal of First Instance of Brussels found the Belgian federal and regional governments in breach of their duty of care and human rights obligations by failing to implement sufficiently robust climate change policies (although it did not impose any penalties or concrete obligations and the decision is currently under appeal); and
  • in October 2021, the administrative tribunal of Paris issued an order requesting the French State to compensate for the excess in GHG emissions for the period 2015-2018 by 31 December 2022.

Moreover, in the Netherlands, certain environmental groups (Milieudefensie et al) have succeeded in extending the principles established in Urgenda against a private company (Royal Dutch Shell). In this case, the District Court found that Royal Dutch Shell had a duty of care to respect the claimants’ human rights and concluded that “the serious and irreversible consequences of dangerous climate change … pose a threat to the human rights of Dutch residents”. The court therefore granted the claimants’ relief, and ordered Royal Dutch Shell to reduce its worldwide GHG emissions by 45% by 2030 (compared to 2019 levels).

However, despite an important number of climate change cases in the UK courts, no similar landmark decision has yet been obtained in this jurisdiction. In fact, UK courts have repeatedly found against climate change-related claims, demonstrating that not all courts are sympathetic to finding carbon emissions and climate change targets to be appropriate matters for disposition by the judiciary.

Indeed, in 2020, the UK Supreme Court overturned the Court of Appeal’s decision in respect of the judicial review of the Airports National Policy Statement to take account of climate change obligations when considering the expansion of Heathrow airport. In 2021, the Court of Appeal dismissed a challenge brought by ClientEarth in relation to the UK Government’s decision to allow the construction of two gas-fired generating units in North Yorkshire, which ClientEarth argued ran counter to the UK Government’s target of being a net zero economy by 2050.

Subsequently, in December 2021, the High Court refused permission on all grounds a judicial review claim against the Prime Minister relating to the UK Government’s alleged failures to take appropriate action in meeting their climate change commitments. Legal grounds raised by the claimants in this case (including the NGO, Plan B Earth) included breaches of the Paris Agreement, the Climate Change Act 2008, and Section 6 of the Human Rights Act 1998 (by way of breaches of Articles 2, 8 and 14 of the European Convention on Human Rights).

Despite the UK court’s resistance to climate change-related arguments to date, environmentalist groups continue to file claims to challenge the UK Government’s emission targets. In January 2022, following the Government’s publication of its net zero strategy in October 2021, ClientEarth and Friends of the Earth filed separate claims against the UK Government based on infringements of the 2008 Climate Change Act, which requires the Secretary of State to set out a plan for the UK to meet its carbon reduction targets. ClientEarth and Friends of the Earth both challenged the effectiveness of the Government’s strategy, and its ability to meet the legally-binding net zero emissions targets. ClientEarth is also developing an argument based on a violation of the right to private and family life, enshrined in Article 8 of the European Convention on Human Rights.

As these cases are direct challenges to the UK Government’s GHG emission reduction efforts, they are comparable to the cases in neighbouring countries in which claimants have succeeded in holding their governments to account. Accordingly, these cases could yield the landmark decision in the UK that has so far eluded climate change activists. If they do, this would be extremely significant for UK-registered companies, as rulings against the UK Government may pave the way for future climate change-related claims against corporates.

by Mark Clarke, partner, and Gwen Wackwitz, associate, White & Case LLP