Kate Bermingham reports on how the law is being used to make up for climate change failure, as three major cases heading towards the ECHR
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As government officials, climate activists and Big Oil executives jetted out of Sharm el-Sheikh last November, it seemed easy to conclude that 2022 hadn’t been a great year for climate activism.
The COP27 agreement was seen as a disappointment by activists: despite some concessions regarding loss and damage, governments once again failed to take responsibility for reducing emissions.
However, a coalition of more than 170 environmental organisations was successful in getting a formal right to a clean, healthy and sustainable environment written into the agreement.
This shift to a rights-based discourse on the climate crisis is set to become ever more significant in 2023, with at least three major climate cases being brought to the European Court of Human Rights (ECHR).
Senior Women for Climate Protection Switzerland recently told the Grand Chamber of the ECHR that we are particularly vulnerable to the climate crisis because heatwaves, which are becoming more frequent and intense, put their health and lives at risk. The Grand Chamber is reserved for the most serious human rights cases. Strikingly, it will be hearing all three of the major climate cases this year.
Damien Careme, a former mayor in France and now a Green MEP, is bringing the second case. Careme, who lives on the French coast near Calais, argues global heating is a threat to his life and health, as his home is at risk of becoming completely submerged due to flooding by 2030. His lawyer Corinne Lepage said: “If the European court recognises that climate failings violate the rights of individuals to life and a normal family life, then that becomes precedent in all of the council member states and potentially in the whole world.”
The third and perhaps the most high-profile case is Youth 4 Climate Justice, led by six young people in Portugal and the Global Legal Action Network. The six applicants are taking 33 states to the ECHR for their failure to reduce emissions. The 33 countries include all of the EU member states, plus Norway, Russia, Switzerland, Turkey, Ukraine and the United Kingdom. The applicants contend the failure of these states to curb emissions threatens their right to life, their right to respect for their private and family lives, and their right not to be discriminated against.
Gerry Liston, a senior lawyer at GLAN supporting the applicants, said: “The significance of this case, which the European court fast-tracked on the basis of the importance and urgency of the issues raised, cannot be overstated.
In addition to presenting a threat to the life and physical health of young people, inaction on climate change also represents a specific threat to the mental health of children and young people. Not only in the sense of fear of climate impacts, but also a ‘moral injury’, or in other words a feeling that people in positions of responsibility have failed them, to the extent that it could become what psychologists call an ‘adverse childhood experience’, which can affect their mental health well into adulthood.”
23-year-old Portuguese applicant Claudia Duarte Agostinho said: “We know how urgent the situation is because even since we began this case, we’ve seen the impacts of climate change get much worse, especially from extreme heat. The judges in Strasbourg have the power to order European governments to do what is necessary to protect us. I’m very hopeful that we are now close to seeing this happen.”
The case will be heard by the Grand Chamber on 27 September 2023.
Sarah Mead, co-Director of the Climate Litigation Network, says these ECHR cases, if successful, could strengthen government accountability; particularly in OECD countries, which bear greater responsibility for historical emissions. Furthermore, these cases could “narrow the global emissions gap, and further foster citizens’ mobilisation on the need for stronger climate action.”
All too often, domestic law has been a frustrating barrier to progress for climate activists in Europe. In the UK, grassroots direct action groups risk arrest by using peaceful civil disobedience protest tactics, such as temporarily blocking roads. During COP 27 in November, more than 30 Just Stop Oil activists were in prison, and around 2,700 protesters were arrested in the previous seven months. There have even been reports of journalists being arrested for reporting on Just Stop Oil protests, and fears that this could become more commonplace with the imminent Public Order Bill and extension of police powers to clamp down on protestors.
It's increasingly difficult for environmental activists to make their case in UK courtrooms too. Earlier this year four Insulate Britain activists stood trial on a public nuisance charge for blocking a London junction. One of the defendants was sent to prison for explaining to the jury why he took part in the protest.
Academics Steven Cammiss and Graeme Hayes argue higher courts in the UK are systematically restricting defences available to protesters on trial, and the Crown Prosecution Service is strategically bringing charges that exploit this restriction. They say the Court of Appeal’s ruling, which overturned the Stanstead 15 conviction in 2021, further restricted the right to protest by ruling that ‘necessity’ defences should not be used in future protest cases.
However, GLAN lawyer Gerry Liston suggests that successful ECHR litigation could work in the favour of European activists who are struggling to persuade domestic courts: “A favourable ruling from Strasbourg could give climate activists at a domestic level a much firmer basis on which to defend their claims.”
The crackdown on climate protesters does send a clear message that the UK government will not tolerate civil disobedience protest methods. It’s clear that more ‘legitimate’ methods are not motivating them to act either. Last year Client Earth, the Good Law Project and Friends of the Earth took the government to the High Court for failures in their net zero strategy. The High Court ruled in their favour, finding the government’s strategy did breach the Climate Change Act.
The court ordered the government to produce an updated strategy by March 2023. Climate correspondent Simon Roach found their ‘new’ strategy contained “a lot of recycled policy announcements” and “just one measure that was completely new”.
Could this mean a return to the High Court? Client Earth et al are considering their options. Senior Lawyer Sam Hunter Jones said: “These announcements do not appear to come close to addressing the many, long-standing gaps in the government’s approach. We are now carefully examining these documents to see if it complies with the High Court’s order and for any other serious legal flaws.”
If a High Court application were rejected, Client Earth et al may have grounds to apply to the ECHR.
Even the legal profession (not usually known for its radical political gestures) has had enough of government inaction at this stage. Last month a group of 120 prominent lawyers signed a Declaration of Conscience, vowing to withhold their professional services in respect of: a) supporting new fossil fuel projects, and b) action against climate protesters exercising their democratic right of peaceful protest.
The group has been criticised by establishment voices for violating the ‘cab rank’ rule, which prevents lawyers from picking and choosing clients based on their personal views. The rule is designed to ensure access to justice for all. However, the group of lawyers, including several King’s Counsel, maintain the climate emergency is so urgent and serious that this action is necessary.
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