Legal challenges by NGOs, citizens key to climate battle – Frederik Hafen and Romain Didi

Strong climate governance means holding governments to account. The EU institutions have shied away from doing so.

In November, the European Union institutions reached an agreement on the legislative revision of two prominent files of the ‘Fit For 55’ climate package: the Effort Sharing Regulation (ESR) and that on Land Use, Land Use Change and Forestry (LULUCF). These regulations set climate targets for member states in various sectors, including greenhouse-gas emissions from road transport, buildings, agriculture, small industry, waste management and land use, and they require national governments to take appropriate measures to achieve these objectives.

Those sectors generate more than 60 per cent of EU emissions. They are, therefore, critical to keeping global heating below the 1.5C ceiling above pre-industrial levels of the Paris Agreement. As the texts stand, however, there is no guarantee that the public can hold their governments to account for failing to adequately pursue these targets.

Back in June, the European Parliament had proposed amendments to the texts put forward by the European Commission. These would have allowed access to justice at national level, strengthening climate commitments and bringing the texts into line with the EU’s international obligations.

But the amendments did not survive the ‘trilogue’ negotiations. They were rejected by the Council of the EU, with the support of the commission—in its haste to strike a deal and announce to the world during COP27 that the EU was ready to reach the higher climate target of a 57 per cent emissions reduction by 2030.

Wasted opportunity

This is a huge wasted opportunity. In enabling members of the public (including environmental NGOs) to hold governments legally accountable for their climate targets, as set out in the ESR and LULUCF, access-to-justice provisions would have strengthened accountability and national ownership, as judges domestically could have called governments to account if achievement of the targets were at risk.

This is exactly what happened in the Urgenda climate case against the government in the Netherlands. Dutch citizens claimed that their government had a legal duty to take more effective action on climate change and, in a historic victory for climate justice, the court agreed. 

These amendments would also have been a rigorous application of the Aarhus Convention, an international treaty which requires its adherents to ensure access to justice, information and public participation in environmental matters. The EU and its 27 member states have all ratified the treaty, but implementation remains uneven: only a few countries provide easy access to justice for environmental NGOs and members of the public, otherwise kept at bay by strict locus standi rules. Access to justice is the pillar of the convention most poorly implemented by the EU and its member states.

Massively exaggerated

The main argument against the parliament’s position was that such amendments would have opened the floodgates to environmental NGOs assailing the courts, ultimately weakening climate action by delaying or compromising implementation of planned measures. This massively exaggerated the capacity of civil society to bring legal actions.

In any event, recent cases, in Germany as well as the Netherlands, have demonstrated that litigation is more likely to strengthen climate action than undermine it. A recent academic report on climate-change litigation found that ‘cases in Europe to date have had more direct outcomes that advance climate action’ than would hinder it.

As the Aarhus Convention mandates, access to justice must be guaranteed in environmental matters and the climate transition cannot leave the rule of law behind. Moreover, there is no point in imposing binding targets on member states if they are not supported by a strong compliance framework, as these amendments would have afforded.

This is by no means the first time the council has blocked access-to-justice provisions in cross-cutting texts such as the ESR and LULUCF. In 2003, the commission proposed a directive on access to justice in environmental matters, designed to implement Aarhus requirements at the level of member states. The proposal sat on the council’s table for over a decade without agreement being found.

Continued unwillingness

This demonstrates the continued unwillingness of national governments to be reminded, by civil society and the judiciary, of their EU climate targets. It is highly damaging.

The effectiveness of climate action and the European Green Deal may be called into question if governments cannot be challenged by the courts when they deviate from binding targets set at EU level. The rule of law is a core value of the EU and judicial review is an obvious way to ensure that it is instantiated. And leaving civil society out of the debate, when it comes to implementation of climate policies, denies the legitimate role of NGOs in holding governments to their commitments in a democratic society.

Faute de mieux, the commission committed itself to issuing a non-binding declaration, by which it will assess access to justice in member states in 2024. This assessment will be made in the framework of the revision of the Governance Regulation and could be accompanied by legislative proposals where appropriate.

The commission will need to be reminded of this promise, so that some provision on access to justice is at last included in a cross-cutting climate text. It should continue to introduce similar provisions in sectoral legislation, such as the Industrial Emissions Directive.

But the council, finally, needs to step up to fulfil its obligations under the Aarhus Convention. The credibility of climate action by member states—and, ultimately, the EU—is at stake.

Frederik Hafen is policy officer for environmental democracy at the European Environmental Bureau (EEB). He has a masters in European public affairs from Maastricht University and was formerly policy adviser in the cabinet of the European ombudsman.

Romain Didi is climate-governance and human-rights policy co-ordinator at Climate Action Network (CAN) Europe.