Taking Climate to Court

Climate lawsuits are not entirely new: cases were already being made in the 1980s and 1990s, most of which were to do with rising sea levels. However, they didn’t make much of a splash – almost all failed. But in recent years climate litigation has taken on a whole new dynamic, creating work for courts not only in the Anglo-Saxon world, but in Germany, Portugal and Switzerland too. While many of the claims are linked to resettlements or damage compensation, a recent development has been the rise in cases involving human rights.

The European Court of Human Rights (ECtHR) in Strasbourg now has over a dozen climate rights cases on its books, with one of the first to be registered coming from Switzerland: it all started six years ago when the Climate Seniors Association and others were unsuccessful with claims filed firstly with the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and then the Federal Supreme Court, eventually leading them in 2020 to take their claims to the ECtHR. The Climate Seniors accuse the federal authorities of doing too little to reduce greenhouse gas emissions and demand a course correction in Swiss climate policy. They allege that Switzerland is violating its duty to protect the population – and older women in particular. The latter suffer the most from the consequences of global warming, as there is a proven link between heatwaves and excess mortality among older women. The ECtHR has yet to take a position on any of the cases.

“It’s become increasingly clear in recent years that climate change will also have an impact on human rights,” says legal scholar Corina Heri. “On the other hand, whether and how people can sue authorities for such violations is anything but clear.” In collaboration with law professor Helen Keller, Heri is currently looking at the larger questions the court in Strasbourg is having to deal with in connection with these emerging climate rights cases. “We have to give grievances like this the chance to be heard,” says Keller, who spent many years serving as a judge at the ECtHR. “After all, we’re talking about one of the greatest threats to humanity.”

The Climate Rights and Remedies Project on which the two are working was set up to reveal the range of problems that can arise when the ECtHR's standard legal frameworks are too limited to accommodate climate lawsuits. The research project is funded by a legacy endowed by Zurich lawyer Ursula Brunner, who died in 2019; she was a strong and life-long advocate for environmental causes – and the first lawyer to represent the Climate Seniors at the time. “It surely can’t be in the interest of effective human rights protection for the Court to raise its hurdles as more people are affected,” Keller is convinced.

The difficulties already start with the admissibility process: are the current conditions for the Court to take on climate rights lawsuits fair and applicable in every case? Take the exhaustion doctrine for example: this stipulates that applicants must first take their cases through all national courts before arriving at the court in Strasbourg. But what happens when charges are not levelled against just one country, but against a total of thirty-three states, as is the case with a climate lawsuit from Portugal? And: how can victim status be defined when it comes to a global issue like climate change, which affects us all in some way? Or how effective is the general understanding that a state’s human rights obligations apply only to its own territory, when greenhouse gas emissions don’t stop at national borders?

Keller and Heri are now looking at the potential legal consequences of such lawsuits. For example, the question of how to actually quantify environmental damage: what is the value of a year of lost life, or a destroyed wetland, or polluted water? “Our aim is not simply to give climate applicants more ammunition,” legal scholar Keller stresses. “We want to raise awareness in courts so that judges can come to fair and judicious decisions in climate rights cases.”

Three of the twelve climate lawsuits at the ECtHR have already cleared the first hurdle, having been referred to the Grand Chamber, which only takes action in very complex cases. “It can be assumed that the verdict passed on these lawsuits will lay the foundation for decisions reached on other cases,” Keller says. The lawsuit from Switzerland is included in these first three. In the eyes of the two researchers, the Climate Seniors have a good chance that theirs will even become the first climate rights case on which the court in Strasbourg will rule, mainly because it fulfils an essential condition of admissibility, on which not only climate claims, but also other human rights cases, often fail: the applicants have exhausted the domestic legal process as required before taking their lawsuit to the ECtHR. Furthermore, their lawsuit is directed solely against Switzerland and not against other states.

In 2020, the Federal Supreme Court ruled that it was unlikely that Switzerland would overshoot its climate target until sometime in the medium to distant future and that there was still time to take action. They also ruled that the applicants were not significantly affected, and their fundamental human rights not sufficiently infringed. “The Federal Supreme Court made it too easy for itself,” says Keller, who is a judge at the Constitutional Court of Bosnia and Herzegovina. It’s simple to prove that heatwaves pose a greater health risk, especially for older women, she claims. “But none of the national authorities has ever bothered to verify the fact.” The result is that the court in Strasbourg has nothing on which to base its decision. Bringing evidence is also likely to become a sticking point for other climate lawsuits. It has been shown time and again that environmental cases have a much better chance of being heard by the ECtHR if the national authorities have already established that environmental standards have been flouted. However, hardly any national court would feel competent enough to judge whether a country is doing enough to tackle the crisis. The climate change problem is far too complex for that.

If everything goes according to plan, the Court will invite the parties to a hearing next year. “There, the Swiss government will also have to present a convincing statement about what it is undertaking to protect vulnerable sections of the population like older women,” Keller says. “Having just abandoned the CO2 law and announced a referendum on the counter-proposal to the Glacier Initiative, Switzerland isn’t exactly in a comfortable position.”

At the same time, the Climate Seniors would be wise to draw on experts who could provide credible evidence on the connection between the climate and excess mortality among older women. “The outcome of the case depends significantly on how well the parties argue in court.” A verdict is expected by the end of 2023.

And then? Based on the approximately three hundred environmental cases heard in Strasbourg to date, Heri says the Court’s judgment in environmental lawsuits is usually no more than a finding. Rarely is a sum of money awarded, and even this is usually modest. On the other hand, ordering judicial action – as seen in other cases where demands can be made for a person to be released from prison, for example – is uncommon among environmental lawsuits and its likelihood in a climate law case even lower, the postdoc says: “I can’t imagine the European Court of Justice telling Switzerland how to achieve its climate targets.”

“Of course, court rulings aren’t going to make climate change disappear,” Keller admits. “But they certainly lend strength to those forces – in parliament, for example – that have long been campaigning for better climate protection.” As far as the court in Strasbourg is concerned, climate lawsuits might also cast its fate into question: Will it continue to retain its importance, authority and function as the conscience of Europe? According to the two academics, this will depend to a large extent on whether the ECtHR is bold enough to take the leap and confront the pressing issues of the time – and perhaps also show a willingness to go down new routes. “We can’t make this decision for the Court,” Keller says. “But we can prepare the ground a little.”

This article appeared in UZH Magazin 4/2022