Posts Tagged no harm

Climate change litigation reaches the CJEU’s desk.

Update 24 May 2019 Prediction below has been realised: the case has been declared inadmissible on standing grounds which no doubt will be appealed. All the classics feature: Plaumann; Inuit; Jégo-Quéré; Stichting Greenpeace; with them the issues concerning the implementation by the EU of the Aarhus Convention, an issue which at the moment is subject to an extensive study by Milieu.

One can say many things about climate change litigation by individuals. (See my earlier piece on the Dutch Urgenda case). Many argue that the separation of powers suggest that governments, not judges, should be making climate policy. Or that international environmental law lacks the type of direct effect potentially required for it to be validly invoked by citisens. Others point to the duty of care of Governments; to binding – even if fluffy – climate change obligations taken on since at least the 1990s, and to the utter lack of progress following more than 25 years of international climate change law.

It is therefore no surprise to see that this type of litigation has now also reached the European Court of Justice: the text of the application is here, see also brief legal (by Olivia Featherstone) and Guardian background.

Like cases before it, colleagues shy of preparation materials for an international environmental law course, with comparative EU law thrown in, can use the case to hinge an entire course on.

As Olivia reports, the legal principles involved are the following:

The claimants state that EU emissions leading to climate change are contrary to:

  • The principle of equality (Articles 20 and 21, EU Charter)
  • The principle of sustainable development (Article 3 TEU, Article 11 TFEU)
  • Article 37 EU Charter
  • Article 3 UNFCCC
  • The no harm principle in international law
  • Article 191 ff TFEU (the EU’s environmental policy

One to watch – albeit that standing /locus standi requirements before the CJEU are likely to be a big hurdle: my 2003 paper on same is still relevant (albeit one has to make allowance for Treaty changes since Lisbon).

Geert.

EU Environmental Law, with Leonie Reins, Edward Elgar, 1st ed. 2017, part I Chapter 2 in particular.

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