INTRODUCTION

On 28 April 1884, A. V. Dicey gave the first of the lectures which became his best-known work, The Law of the Constitution. He had recently been elected Vinerian Professor of English Law at All Souls College, Oxford, and this first lecture, titled ‘a Public Lecture on the True Nature of (so-called) Constitutional Law’, was delivered on 28 April 1884. As a public lecture, it was addressed to the University at large. The subsequent ‘Six Lectures on some fundamental principles of Constitutional Law’ began on 30 April 18843 and had a more specialist, legal quality. When Dicey wrote to Macmillan & Co. in June 1884 to propose the publication of all seven lectures together, he said it ‘would not be a law book in the strict sense of the term, but would I think have some interest for a wider class than mere lawyers’. So it has proved. The published Lectures Introductory to the Study of the Law of the Constitution were received from the outset not merely as a work of legal education, but as a major contribution to political and constitutional thought.

The two main claims which The Law of the Constitution has on historians of political thought today are its treatment of the idea of sovereignty and its role in developing the concept of the rule of law. The second is the focus of this contribution.

INTRODUCTION

On 28 May 1909, Lord Curzon wrote to A. V. Dicey remarking that he had been ‘seriously distressed’ when Dicey had told him of his intention to resign the Vinerian Professorship at Oxford. He said he understood Dicey's reasons, which were honourable, and reflected his sense of public obligation. Curzon hoped, however, that, ‘as Chancellor of the University at the moment of your retirement’, he might be permitted ‘to send … a brief line of sincere and grateful recognition of the preeminent contribution that [Dicey had] made … to the life, the learning and the public distinction of Oxford’; his ‘name and works’ had ‘shed a lustre upon the University’. On election as Chancellor, Curzon had personally nominated Dicey to receive the degree of D.C.L. honoris causa. The professor stands out in the list of honorands gaining this degree, mainly distinguished politicians and military men, the only other lawyers being the Lord Chancellor and the Lord Chief Justice of England. This is powerful testimony to Dicey's quality and the recognition he had achieved. He was touched by the laudatio given by his colleague Henry Goudy, who, as Professor of Civil Law, had the onerous task of giving a Latin oration for each of the graduands. That for Dicey he gave extempore, such was his knowledge of his colleague and the affection he felt for him. Goudy apostrophised Dicey, not unjustly, as ‘vir eloquentissime, in forma et consuetudine nostrae civitatis versate, nec non Hiberniae domi retinendae acerrime adsertor’.

INTRODUCTION

Climate change is one of the many aspects of biotic impoverishment, which directly weakens human communities through reduced quality of life, environmental injustice and political instability. Because of such important consequences for basic human rights, in recent years there has been a growing number of cases brought before national, regional and international courts that aim to hold States and private entities responsible for their actions and omissions regarding climate change policies. Human rights-based climate litigation aligned with climate objectives uses international and national human rights law to request governments and corporations to reduce their greenhouse gas emissions on the basis that climate change causes significant breaches of international human rights law. However, human rights-based climate litigation also includes those lawsuits not aligned with climate objectives, aimed at opposing green development projects that have a negative impact on human rights. In such lawsuits, even though the plaintiffs are not objecting to climate action being undertaken, they are criticising how such climate-related projects are being implemented.2

At present, several such complaints have been filed before the European Court of Human Rights (ECtHR), seeking redress for climate injustices that have caused serious human rights violations.As of May 2021, there were as many as 112 cases (out of 1,841 cases) relying in whole or in part on human rights revindications. This ‘rights turn’ in climate change litigation aims at regulating climate policies, whereas the international legal regime does not provide for enforcement or accountability tools when States do not meet their emissions reduction obligations.

THE ROLE OF DOMESTIC CONSTITUTIONAL LAW

In a recent tort law case regarding the approval of the extension of a coal mine, the Federal Court of Australia1 decided unanimously – by overturning a judgment of a single judge – that the imposition of a ‘duty of care’ regarding ‘human safety’ has to be rejected in the context of climate change. The Court backed up the claim made by the Minister for the Environment that it ‘is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the Judicial branch to resolve in private litigation by reference to the law of torts and potential personal responsibility for indeterminate damages, if harm eventuates in decades to come.’ One might question the relevance of this climate change case in private law when the focus of the following analysis lies in constitutional law. The Australian case, however, perfectly illustrates the effect of the lack of constitutional law concerning climate rights of individuals. Australian constitutional law does not provide a fundamental rights catalogue of its own and was unable to provide a constitutional basis for climate change litigation.

Constitutional law and tort law are just two examples of the possible ways to address climate change in courts.The international human rights perspective seems to be dominant in addressing climate change. Domestic constitutional law and constitutional rights, however, might differ significantly from an international human rights perspective.

INTRODUCTION

Following the ‘rights turn’ in climate change litigation in Europe, several national courts have made it clear that legislation on climate protection can also be reviewed in the light of fundamental rights. In contrast, recent decisions by the Court of Justice of the European Union (CJEU) have rejected similar actions. Prominently, in its decision of 25 March 2021, the CJEU refused to declare the action in the People's Climate Case admissible, and in doing so, also made it clear that direct actions against EU climate change law in principle have no prospect of being successfully contested by individual plaintiffs. ‘Plaumann means Plaumann means Plaumann’ seems to be the unshakable position of the Court regarding the interpretation of individual action possibilities, pointing to the indirect route to the CJEU with an action before a national court and the possibility of referral as a preliminary ruling. Since the Court has essentially not changed its position on standing within the past 60 years, this approach has often been described with a reference to Franz Kafka,creating an image of standing rules before the CJEU as being as insurmountable as the gatekeeper in the parable Der Prozeß. But is this image truly accurate or is there a comprehensive explanation for this restrictive approach?

This chapter takes the opportunity to shed light on the different paths to the CJEU in the EU judicial system for actions that aim to challenge the legality of EU legislation to improve efforts to combat climate change.

INTRODUCTION

People v. Arctic Oil is a full-bench judgment and decision delivered by the Norwegian Supreme Court in December 2020.It was a case where Greenpeace and Nature & Youth (joined by Grandparents’ Climate Movement and Friends of the Earth Norway as interveners) filed an application to quash licences issued by the Norwegian government for petroleum exploration in the Barents Sea during the 23rd Licensing Round (Licensing Decision). The case began its trajectory before the Oslo District Court with a fair bit of publicity – there was an ice sculpture with a ‘112’ inscription found outside the courthouse,signifying Article 112 of the Norwegian Constitution on the right to a healthy environment. Thus, the case was framed by the petitioners as a climate rights case where both rights under the European Convention of Human Rights (ECHR) as well as constitutional rights were in play. The case then went up to the BorgartingCourt of Appeal, and finally to the Supreme Court. The case was decided in favour of the government at all three stages. Aggrieved by the decision, young Norwegians have filed an application before the European Court of Human Rights (ECtHR) on a similar cause of action, focusing on Article 2 (right to life) and Article 8 (right to private family life) of the ECHR.

INTRODUCTION

The issue of climate migration (forced displacement due to climatic events) has long been discussed in academic circles. It became a salient policy issue as early as the 1990s with the publication of the first United Nations Intergovernmental Panel on Climate Change (IPCC) Assessment Report. The report stated that ‘the gravest effects of climate change may be those on human migration as millions will be displaced’. Now, as the climate becomes increasingly volatile and climate change is an even more pressing issue on global policy agendas, the issue of climate migration is rapidly drawing international attention.

There are three categories of climatic events that drive climate migration. The first includes rapid-onset events such as tropical cyclones, severe storms and floods. These events tend to lead to shorter-term displacements, typically within national or regional borders. They overwhelmingly affect vulnerable individuals in lower-income countries, many of whom lack the financial resources to permanently relocate. Many of these individuals return to the site of the event shortly after it occurs, even rebuilding their homes in the disaster zone. The second category of displacement-inducing climatic event is drought and desertification, which can cause shortages of both drinking water and water for irrigation. These phenomena occur over a longer period of time. Their progressive nature tends to also lead to progressive mobility patterns: over time, more and more people from affected regions relocate permanently as their environment becomes increasingly inhospitable.

INTRODUCTION

Over the past decade, climate change litigation has become a powerful tool for climate governance. In attempting to bridge the regulatory gaps in the international legal framework for climate change and the lack of ambition in international negotiations, litigation has emerged as an alternative advocacy mechanism to advance regulatory action through intentional attempts to control or influence the behaviour of governments, corporations and individuals. Cases that received a favourable outcome from courts from a plaintiff's perspective – deemed ‘successful’ – have pushed for more effective climate regulation or implementation of existing commitments. In its Sixth Assessment Report, the IPCC recognised, for the first time (with medium confidence), that climate litigation has influenced the outcome and ambition of climate governance. The IPCC also identified climate litigation as an important avenue for actors to influence climate policy outside of the formal UNFCCC processes.

Government actors are the most common defendants in climate litigation cases globally. UNEP notes that paradigmatic cases filed against governments have claimed that policies or decisions are inconsistent with commitments to reduce GHG emissions. These commitments can be included in constitutions, legislation or general policies. Urgenda Foundation v. Kingdom of the Netherlands was the first case in the world to establish a legal duty on a government to prevent dangerous climate change. In Urgenda, the plaintiffs claimed that the Dutch national greenhouse gas (GHG) policies were insufficient to address national climate mitigation obligations.

INTRODUCTION

Climate change litigation is booming across Europe under its different tenets and manifestations. At least 119 climate change lawsuits have been filed in 20 European countries since 2015 to seek more ambitious climate action by governments and companies in line with the best available climate science.

This chapter builds on a high-level roundtable held at the conference ‘Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward’ at Hasselt University on 18 February 2022.It aims to analyse key topics surrounding climate litigation in five European jurisdictions. The roundtable, moderated by the authors, comprised the following speakers, all high-level lawyers involved directly in climate change litigation cases in their respective jurisdictions:

• – Carole Billiet, Equal Partners, Belgium;

• – Sébastien Mabile and François de Cambiaire, Seattle Avocats, France;

• – Roda Verheyen, Rechtsanwalte Günter, Germany;

• – Sarah Mead, Urgenda Foundation, the Netherlands; and

• – Nigel Pleming KC, 39 Essex Chambers, the United Kingdom.

In addition to the synchronic comparative perspective, the approach followed at the roundtable discussion, as reflected in this chapter, looks at climate change litigation in Europe from a diachronic perspective. Thus, it aims to address past, present and future trends in climate litigation. Section 2 deals with selecting legal instruments for climate litigation in different legal systems and their successful deployment in courtrooms. Section 3 focuses on existing procedural and substantive hurdles, both legal and ‘meta-legal’ (or extra-legal), currently undermining climate change litigation in the above legal systems. Section 4 outlines potential legal and meta-legal elements, increasing the chances for successful climate change litigation in different European jurisdictions. Section 5 concludes by laying down a set of common threads of climate litigation in Europe.

ORIGIN, AIMS AND SPECIFICITY OF THIS VOLUME

Climate change litigation has come to the fore in recent decades as a global phenomenon, encompassing the societal striving for radical changes, the need to establish the responsibility of both private and public organisations in view of the compelling evidence of climate change, and the collective awareness of the significant efforts needed to achieve effective and ambitious greenhouse gas (GHG) emission reductions, in line with the best available climate science. In this regard, the initial wave of strategic climate change litigation is now leaving room for a more structural phenomenon, arguably enshrining climate change litigation as a transnational climate governance mechanism. Several underlying trends are being appraised, which underpin the always more considerable bulk of cases being brought before jurisdictions all over Europe at the regional and domestic levels.

This edited volume aims to contribute to the discussions on trends in climate change litigation in Europe, drawing from regional, comparative and sectoral perspectives. It builds on the conference entitled ‘Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward’ held at Hasselt University in Belgium on 18–19 February 2022, organised in cooperation with the British Institute of International and Comparative Law (BIICL) and Hasselt University.

The hybrid two-half-day event took stock of the current developments in climate change litigation in Europe while addressing systematically and comprehensively the latest relevant trends.

INTRODUCTION

In the last decade we have seen a fast growth of climate litigation, understood as cases that relate to climate change mitigation, adaptation or climate science. That rapid increase in climate litigation has occurred around the world. The 2017 UNEP Climate Litigation Report identified 884 cases brought in 24 countries, comprising 654 cases in the United States of America and 230 cases in all other countries combined. As of 1 July 2020, the number of cases had nearly doubled, with at least 1,550 climate change cases filed in 38 countries (39 counting the courts of the European Union). Those cases include approximately 1,200 filed in the US and over 350 filed in all other countries combined. Outside of the US, Australia has seen the largest number of cases.Although the number of cases in Europe, compared with the US and Australia, is lagging behind, probably the most iconic are nevertheless situated in Europe. In the last three years the numbers have gone up again.

DEVELOPMENTS UNTIL 2017

The annual conference of the European Union Forum of Judges for the Environment (EUFJE) in Oxford in October 2017 focused on climate change.It is striking that in several European countries – but certainly not all – and at EU level climate justice was developing gradually at that time, and it concerned almost exclusively very specific, often quite technical aspects of climate legislation, such as the European emissions trading system, support mechanisms for renewable energies,measures to make mobility more sustainable, permits for projects with a significant climate impact, or, on the contrary, permits for climate-friendly projects.

INTRODUCTION

The primary purpose of this chapter is to analyse how strategic climate litigation operates in Poland and its consequences for the socio-legal system. Strategic litigation is a process initiated to change the direction of politics; it is a legal dispute before a court that is motivated by social forces and the main goal is not to win the case, but to achieve broad public support. Strategic litigation changes the way social problems are understood, as individual claims become a social paradigm of normative change. This is possible by focusing activities on three aspects: naming (the social issue in legal terms), claiming (before the court) and blaming (political institutions). The first aspect indicates a dichotomy, in that litigation can either be defined as a strategy of fighting for the recognition of fundamental rights or as a strategy of obtaining the correct application of existing law. Legal claiming defines the boundaries of the dispute, which indicate the need to resolve a specific issue or the need for a fundamental systemic change. The last aspect is related to the attribution of responsibility (to public authorities and/or private entities).

This chapter is divided into three parts. The first deals with the law applicable to strategic litigation in Poland (section 2). Next, the (potential) need for change in the Polish approach to strategic climate litigation will be outlined (section 3). Finally, the significance of the balance between social communication and legal argumentation for strategic climate litigation-based storytelling will be examined (section 4).

INTRODUCTION

In recent years, climate-related litigation before European regional courts has increased and expanded swiftly. To frame this context, four of the most significant cases in the field can be highlighted: two before the Strasbourg Court and two before the Luxembourg Court. Currently pending before the European Court of Human Rights (ECtHR) is the Duarte Agostinho case, in which six Portuguese youths filed a claim against 33 Council of Europe countries for neglecting to take adequate measures to combat climate change. The Swiss KlimaSeniorinnen case is another climate case pending before the Strasbourg Court. It involves a group of senior women who have filed a lawsuit against the Swiss government, alleging that it has failed to uphold its obligations under the European Convention on Human Rights (ECHR) by failing to steer Switzerland onto a safe emissions reduction trajectory. The petition by senior women observes that their demographic group is particularly vulnerable to heat waves due to climate change. The two cases before the Court of Justice of the European Union (CJEU) are the People's Climate Case, in which 10 families, including children from EU and non-EU countries, petitioned the EU courts for more stringent greenhouse gas regulations; and the EU Biomass Case, in which plaintiffs from multiple EU countries challenged the Renewable Energy Directive on the grounds that it accelerated deforestation. Both cases were deemed inadmissible on standing grounds.

INTRODUCTION

Climate change is undoubtedly one of the most, if not the most, pressing issues of our time, one which will fundamentally affect the future, perhaps even the survival, of humankind. Since the 1992 UNFCCC Rio Convention and the subsequent Kyoto Protocol of 1997, to the Paris Agreement of 2015, up to the Glasgow Conference of the Parties (COP) of late 2021, political bodies at all levels have tried to find a way to tackle the issue through a coordinated and efficient response. Nonetheless, the general consensus is that the measures taken so far are simply not enough.2

As a result, in the last few years, a growing number of climate change cases have started to emerge in different parts of the globe, in what has now consolidated itself as a worldwide movement to defend the planet's health in the judicial arena. It is, after all, the judicial branch's role to intervene as a subsidiary protection mechanism once the substantive rights that have been affirmed both at statutory and constitutional level are violated.

In this struggle to stop, or at least stall, climate change by means of litigation, several substantive provisions and procedural mechanisms have been employed. Among the latter, the present chapter aims to situate the debate in a richer theoretical and empirical perspective by introducing the argument that representative actions, although an imperfect mechanism, in certain circumstances may be a vital tool for social change and for the protection of fundamental rights, such as that to a safe environment.

INTRODUCTION

In its 2022 report, the Intergovernmental Panel on Climate Change unequivocally asserts that all modelled pathways to limit global warming to 1.5°C entail a reduction of greenhouse gas emissions in all industries. Scientists hold thateffectively all new fossil fuel extraction projects must be halted.

The 1.5°C goal was set out in the landmark 2015 Paris Agreement, adopted by nearly 200 signatory States and thus far one of the most ambitious international binding treaties on climate change. Another main objective of the Agreement, as provided in Article 2.1, is strengthening the global response to the threat of climate change by making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development. The question of climate finance appears in the article establishing the temperature target. This framing attempts to underline the fact that financial flows are essential to the implementation and effectiveness of climate crisis mitigation and adaptation mechanisms. However, as the instrument is only binding for States, which often lack the funds to address the climate crisis, the participation of private financial 2 actors is indispensable.

The financial community understands this opportunity and has begun to adopt the terms of the Paris Agreement. It is now commonplace for ‘financial actors, with national and regional development banks leading the way, to talk in terms of aligning with the Paris Agreement as a necessary aspect of their business case.’

INTRODUCTION

The European Green Deal aims to reshape the functioning of the EU towards sustainable development so as to face urgent climate-related and environmental challenges. Chiti points out that this ambitious regulatory project not only deals with environmental protection, but in a sense brings about a transition from the current phase of European integration to another, with the intention of establishing a new societal order. The European Commission states that to make the Green Deal policies work and be accepted, active public participation is ‘paramount’. The importance placed upon participation raises questions as to how citizens will be effectively involved in the process of complex environmental decision-making in the creation of this new societal order under the European Green Deal.

Such complex environmental decision-making arises, for example, in mobilising climate-dedicated funding and facilitating sustainable investments to make the ambitions of the European Green Deal a reality. One of the key tools in this context concerns the Taxonomy Regulation. The Taxonomy Regulation aims at founding a unified EU green classification framework for investments, which entrusts the Commission with adopting delegated acts to determine whether or not an economic activity is sustainable in light of the regulation.

While the Taxonomy Regulation aims to classify environmentally sustainable investments and therefore has a potential influence on the internal market and individuals, the path for citizens to get involved in implementing this instrument is not so straightforward.