30/11/2018 | The plaintiffs of the People's Climate Case: their "climate fight" in the European justice system - By Cloé Mathurin & Benjamin Van Bocxlaer
Having mentioned in the previous article the Land Use Land Use Change and Forestry (LULUCF) regulations, which is the third European legal act challenged by the plaintiffs of the People's Climate Case, we are interested in to the direct source of the problem, namely the climate disasters suffered by families. We focused on one family in particular because the disasters vary according to the regions of the world. In a second step, we tried to find out if their complaint had a chance to reach the Court of Justice of the European Union (CJEU).
As a reminder, People's Climate Case is the litigation action initiated by 10 families whose living conditions have been severely affected by the effects of climate change in recent years. They are taking the European Union institutions to court to protect their fundamental rights and to prevent dangerous climate change. These families live in Portugal, Germany, France, Italy, Romania, Sweden but also Kenya and the Fiji Islands.
Let us take a closer look at the case of Portugal, home to 3 families of plaintiffs. Armando Carvalho, the father of one of the Portuguese families, was in Brussels on 20 September 2018 at the conference-debate "Families and Youth are suing the EU for climate inaction! from the Saint-Louis University. He told us his arresting story.
As a reminder, People's Climate Case is the litigation action initiated by 10 families whose living conditions have been severely affected by the effects of climate change in recent years. They are taking the European Union institutions to court to protect their fundamental rights and to prevent dangerous climate change. These families live in Portugal, Germany, France, Italy, Romania, Sweden but also Kenya and the Fiji Islands.
Let us take a closer look at the case of Portugal, home to 3 families of plaintiffs. Armando Carvalho, the father of one of the Portuguese families, was in Brussels on 20 September 2018 at the conference-debate "Families and Youth are suing the EU for climate inaction! from the Saint-Louis University. He told us his arresting story.
The speakers at the conference-debate of the Saint-Louis University, September 20, 2018 (Mr. Carvalho in the center)
The story of a family of plaintiffs
The Carvalho family has forests in central Portugal. She cultivates local species such as oaks and chestnuts. The family has seen an increase in heat waves and droughts in their area. This trend is officially attributed to climate change. Newspapers and the Portuguese government, among other things, reported above average mortality rates due to heatwaves.
In October 2017, 95% of the municipality's territory, including all family forest land, burned in an extraordinary forest fire. The flames also surrounded the family home but fortunately the family is safe and sound. That said, today, the memory of this fire is still deeply rooted at home. Even if they invest in the rehabilitation of their forest lands, it is nevertheless impossible to estimate how many years it will take to find a mature forest, given the climate change risk scenarios in Portugal.
Here is the arresting testimony of Armando Carvalho at his home in Portugal:
What happened: a fire unlike any other ?
On October 15, 2017, a large part of Portugal is ravaged by the flames. The very high temperatures and the strong winds are at the origin of the very fast spread of this fire. These temperatures and winds are explained by the passage of Hurricane Ophelia. Indeed, on the animation of NASA we can notice that the trajectory of Ophelia and its passage near Portugal coincided with the fires that devastated the country that day. According to the meteorologists, Ophelia is remarkable because it would be the first recorded hurricane most east of the Atlantic Ocean, and the first since 1939 to advance as far north. Since then, downgraded to a post-tropical cyclone when it landed in Portugal in early October 2018, Hurricane Leslie again caused high winds. It would be even the most powerful to reach Portugal since 1842.
The family is now asking EU policy makers to increase their climate ambition to protect them and their forests from future forest fires. But first of all, let's see if family complaints are received by the CJEU. Indeed, access to justice is not necessarily guaranteed in the European Union.
Access to justice : a right for all, in theory…
The People’s Climate Case might be a milestone in the legal fight against climate change if the case wins, but first it will have to be received by the Court of Justice of the European Union. Although they appear as a complex issue, the admissibility criteria are nevertheless crucial regarding access to justice.
Indeed, the CJEU’s admissibility criteria (that can be found in article 263(4) of the Treaty on the Functioning of the European Union) are quite strict : the complainants have to be directly and individually affected by the European legislation they challenge (link to Anya’s first article) : it means that the legislation that is the subject of a complaint must have a direct impact on their legal situation, as well as a factual impact that differentiate their situation from other persons’ situation. It is clearly an additional difficulty for the citizens who try to bring the climatic and environmental struggles in front of European Courts. The individuality criteria is especially questionable in a context of systemic climate change that concerns, or will concern in a near future, absolutely everyone. About this, the Compliance Committee of the Aarhus Convention concluded that the interpretation of CJEU breached commitments of access to justice taken by the EU in this convention Framework.
The Aarhus Convention, adopted in 1998 within the United Nations Economic Commission for Europe, introduced a number of rights related to environmental issues and citizen participation : the right of the people to obtain information from the public authorities regarding those questions, the right to participate in decision processes that concern environmental issues, and the right to have access to justice to challenge legislations that don’t respect the previous rights or environmental law in general. It is thus a key-convention for the environmental legal struggle, but unfortunately it is not always applied in reality, as we could see with the case of the CJEU.
…in practice, admissibility criteria are inappropriate for global challenges
The complainants this had to build an argumentation that proves the individual character of their affect. In their pleading, they explain that their legal situation is indeed modified as the European legislation breaches their fundamental rights et that climate change affects them individually, because even though it is a global issue, it touches each of us in a different way, and doesn’t have the same consequences for a Portuguese farmer, a Carpathian shepherd or a Fijian family. Moreover, the complainants emphasize the non-relevance of such a criterion in a context of climate crisis. They insist on the urgent need, for CJEU, to adapt its criteria if it wants to fulfill its role of legal control, both for specific legal decisions as it is traditionally the case and for global legislations that concern the fundamental rights of millions of citizens, inside and outside the EU borders.
About that, how is it possible that Kenyan and Fijian citizens are able to file a claim in front of the CJEU? It is actually an unprecedented situation. Traditionally, this possibility had been used by companies located outside the EU that had been sanctioned by European economic law on concurrence matters, and those companies were challenging this decision in front of the CJEU. The People’s Climate Case is thus the first to invoke in front if the CJUE that fundamental rights to health, property, occupation and equal treatment of non-UE citizens were violated by greenhouse gases emitted in Europe! Now, let’s wait and see if this argument will convince the court and create a precedent.
International law: too quiet in the face of climate emergency?
Eventually, this case is also an opportunity to wonder is international law can be considered as an efficient weapon against climate change. Apart from the United Nations Framework Convention on Climate Change (UNFCCC) which frames the COPs and intergovernmental negotiations, international law seems to be quite discreet on the climate change issue and on the legal responsibility that those transformations involve. Quite a lot of cases related to climate change are carried in front of national courts, but very few in front of international jurisdictions. If we take the example of the International Court of Justice (which is, for those who don’t know, the principal judiciary body of the United Nations), this kind of initiative is non-existent. First of all, the ICJ is not open to individuals and only arbitrate conflicts between States. Nevertheless, there would be a possibility to develop a climate justice between States that are victims and States that are historically responsible of those systemic changes. The Court has recognized in its case law that it was due to the States to avoid and/or control transboundary harm (including pollution). This “due diligence” as it called (which means a duty of prevention) could be a possibility for the development of a climatic responsibility for States, but it remains quite unexplored.
Regarding the International Criminal Court, it was founded in 2002 to judge the most serious crimes committed by individuals, that are called imprescriptible crimes (crime against humanity, genocide, aggression crime, war crime), but its status doesn’t allow to recognize a crime of environmental destruction of the or climate deregulation. About this, for those who want to go further, you can read the pleading of lawyers, led by Valérie Cabanes, who want to add the crime of ecocide in the Rome Status.
The fact that the UNFCCC didn’t give birth to an international legal climatic body, such as, for example, an International Environmental Court that could arbitrate conflicts and control the efficiency of the national contributions shows that the legal solution was not the one chosen to address climate issues. Indeed, it is very clear when we look at the Paris Agreement that it is the voluntarist political solution that was designated, in a non-binding approach that allows each State to choose freely how it will organize its low-carbon transition (or not, when we see the shameless climate-skepticism displayed by some political leaders).
Sources :
https://peoplesclimatecase.caneurope.org/plaintiff/family-carvalho-from-portugal/
https://peoplesclimatecase.caneurope.org/wp-content/uploads/2018/05/faq-of-peoples-climate-case.pdf
For more information on the right to access justice, see the ClientEarth website (funded by the LIFE program) which is dedicated to these issues.
Regarding the response of international law to climate change, see the very comprehensive report fulfilled by the International Bar Association.
https://www.clientearth.org/peoples-climate-case-highlights-lack-of-access-to-the-eu-courts/
https://www.theguardian.com/sustainable-business/2014/dec/11/international-law-silent-climate-change
http://environment.yale.edu/envirocenter/files/ICJ_Brochure_Revised_11_22_12_smaller%281%29.pdf
https://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=FR
