Climate litigation updates

It has been a busy last month for climate change in the courts. Decisions recently issued by French, UK, and Canadian judges have affirmed domestic mitigation obligations that underscore the Paris Agreement’s role in setting shared climate change norms.

I published this law review article four years ago, which described a range of climate change cases filed around the world and analyzed how the Paris Agreement, and the UNFCCC more broadly, influenced them. A lot has happened since then.

Let’s start with the most recent decision and work backward to those chronicled in my article, to discern any new trends.

United Kingdom

The Guardian reported on Feb 27 that the Court of Appeal (Civil Division) had ruled that day that Heathrow Airport may not build a third runway because the government’s airport policy had not accounted for the UK’s climate change mitigation pledges under the Paris Agreement. The case, captioned as R (Friends of the Earth) v. Secretary of State for Transport and others, had two issues on appeal: 1) the reliance interest of private developers on the Heathrow Airport authority’s decision to build the third runway and 2) the validity of the Airports National Policy Statement (ANPS) on new runways in southeast England prepared by the UK Secretary of Transportation in June 2018 under section 5(1) of the Planning Act 2008. (If you want more on the first issue, see this Cliff Notes summary of the 83-page decision.)

On the second issue, a host of plaintiffs – FoE, Greenpeace, Plan B, London’s mayor, and various city burroughs – argued that the process for producing the ANPS was legally flawed because it did not account for the runway expansion’s negative impact on the UK’s climate change commitments. The Court of Appeal agreed and reversed the lower court’s decision, specifically relying on section 5(8) of the Planning Act’s requirement that the reasons behind government policy statements like the ANPS “must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.” Simply put: “The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS, but was not.” Because it wasn’t, the Court of Appeal declared that the Planning Act was not followed and therefore the ANPS is invalid.

(Quick note: Other bases for challenging the ANPS, under the Habitats Directive and the Strategic Environmental Assessment Directive, did not prevail on appeal.)

The Court’s decision is straight forward. Yet aspects of its reasoning are nuanced and striking, and merit delving into more detail.

First, the UK has robust climate change laws and institutions to implement them. The Planning Act – akin to NEPA in the US – contains a provision that explicitly requires addressing the government’s climate mitigation and adaptation policies. Through its Climate Change Act – also of 2008 – Parliament has domestically legislated to bind the UK to a net domestic carbon reduction of at least 80% below its 1990 emissions baseline by 2050 (emphasis added). The CCA created an evidence-based and independent Climate Change Commission (CCC), which advises the UK government on emissions targets and reports mitigation and adaptation progress to Parliament. In sum, the UK has put in place legal structures for taking dynamic domestic action on climate change. It was these laws that provided the scaffolding for Heathrow’s third runway challengers to force the government to connect the dots between its transportation and climate change priorities.

Second, the UK’s ratification of the Paris Agreement makes it part of the “Government policy subject to inclusion under the Planning Act, despite debate about how current domestic climate change law may not fully implement it. The Court of Appeal disagreed with the lower court’s conclusion that the CCA’s reduction target is the extent of government policy that need be – and was – taken into account when approving the ANPS. Instead it looked more broadly at the UK’s obligation to make and communicate nationally determined contributions (NDCs) under the Paris Agreement, and pursue domestic measures to achieve them – all with the aim of keeping global temperature rise “well below” 2C and pursuing efforts to limit it 1.5C. In adopting, signing, and ratifying the Paris Agreement, the UK repeatedly and publicly committed to these obligations. The Court of Appeal viewed these actions as one kind of “Government policy” that must factor into the Planning Act’s purview. Moreover, in relying on the CCA for implementation of international treaty law, the Government knew that the CCC had recognized the Paris Agreement as more ambitious than the CCA’s domestic target, but had not recommended revision because an 80% reduction was already a stretch. The CCC had also acknowledged the possibility that the CCA target “could be consistent with” these new temperature goals. Yet at a pre-trial hearing, the Government had conceded that it had not taken account of whether “the Paris Agreement differs from the 2008 Act in any relevant, significant way.” This, according to the Court of Appeal, was the failure: “if the Secretary of State was to comply with his duty under section 5(8) of the Planning Act, the implications of the Paris Agreement for his decision, and whether they were different from the implications of meeting the targets under the Climate Change Act, were matters for him specifically to consider and explicitly address in that very exercise.” Anything less would result in a cramped interpretation of “Government policy” and limit the Planning Act’s purpose and reach.

UK Transport Secretary Grant Shapps, in Guardian interview,
says that the UK is “absolutely determined to live up to our
commitments on behalf of this country
and to future generations.”

The UK government has announced that it will not appeal the decision. The private entities, including Heathrow Airport Ltd, have not ruled it out. As Grant Shapps, UK Transport Secretary makes clear, while Heathrow growth is favored by the government, runway expansion must fit within the government’s net zero by 2050 climate targets. The Court of Appeal recognizes that the government could try again on a new ANPS, this time expressly accounting for the Paris Agreement.

But does this all add up to The Guardian’s claim that this ruling is “the first major ruling in the world to be based on the Paris Agreement and may have an impact both in the UK and around the globe by inspiring challenges against other high-carbon projects?”

  • Not so on the first part. The Urgenda decision, which began in the Netherlands in 2015, takes the blue ribbon.
  • On the second, certainly this case is already having in impact on the UK, with the Government not appealing it and PM Boris Johnson using it politically to boost his COP26 leadership and bolster his already established position against expanding Heathrow.
  • Could it inspire litigation in other countries and confirm commitments made under the Paris Agreement? Absolutely, especially for those who have similar planning acts that provide for this kind of judicial review. The Court of Appeal’s decision provides a meticulous playbook for the statutory interpretation arguments and selection of relevant evidence.

Alok Sharma, the newly appointed COP26 President referenced in an earlier blog post, underscores the need for government to connect the dots: “The only economy which can avoid the worst effects of climate change, and thus continue to deliver growth, is a decarbonized economy. Our choices will make or break the zero-carbon economy.”

France

At the end of December 2019, France’s Conseil d’Etat ruled that a national law to limit hydrocarbon exploitation did not infringe a French oil company’s right to peaceful enjoyment of its private property. It did so by reasoning that France’s 2016 ratification of the Paris Agreement required implementation of national laws like this one and that the legislature had not exceeded its authority.

Law n° 2017-1839 of December 30, 2017 was enacted to gradually end research and exploitation of hydrocarbons during the year following France’s ratification of the Paris Agreement. The law 1) banned new hydrocarbon research permits on French territory and 2) limited the renewal period of existing mining permits. IPC Petroleum France SA (a US subsidiary) requested and received an extension of its current mining permit until the statutory deadline of January 1, 2040. Then it sued the French State, arguing that the time limitation violated the company’s right to peaceful enjoyment of property under Article 1 of Protocol n°1 of the EU Convention for the Protection of Human Rights and Fundamental Freedoms and the permit renewal provisions of Article L. 111-12 of the French Mining Code.

The Conseil d’Etat first reasoned that the EU Convention requires that national laws strike “a fair balance between the infringement of these rights and the grounds of general interest likely to justify it.” It then concluded that this Mining Code provision clearly explained the need to balance the interests of mining concessions with those of the general public. It ruled that setting 2040 permit extension deadline in the 2017 law, more than 20 years after its adoption, balanced France’s commitments under the Paris Agreement to limit climate change with the peaceful enjoyment of private property. IPC Petroleum France’s request was dismissed and Law n° 2017-1839 upheld.

This decision by the Conseil d’Etat firmly establishes that combating climate change is in the public interest and that the Paris Agreement represents a nation’s intention to commit to it. It highlighted that the legislature established the 2017 mining limits “to achieve the general interest objective of limiting global warming and respecting the international commitments made by France under the Paris Agreement.” It even takes a step further, resolving the potential ambiguity about a company’s use of extracted fuel for energy or non-energy purposes by setting the default presumption “that the objective of combating climate change presupposes limiting the exploitation of fossil hydrocarbon reserves, whatever their use.” Finally, it underscored the reasonableness of the 20-year lead time for the permit extension deadline, which gives companies time to recoup their mining investments made ten to fifteen years in advance.

In sum: While not as detailed in its analysis of the Paris Agreement’s impact on French national law and EU regional law as the recent UK decision, it puts the Agreement front and center as the public interest reason for country Parties to restrict GHG emitting activities.

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