48 (143) 2021

Green Transformation

Role of courts in addressing the climate crisis

By Maja Frontczak, attorney, and Łukasz Ostas, trainee attorney, Gessel Attorneys at Law
Header gessel foto

COP26, the 2021 UN Climate Change Conference in Glasgow will be held for the 26th time. This, in itself, indicates that climate change is perceived among the international community as a threat to be treated seriously and monitored every year. Although the Paris Agreement (2015) is often regarded as a breakthrough in the fight for climate preservation, many take the view that enactment of the document has not been followed by sufficient action by the signatory states to limit global temperature increase to not more than 2ºC (or, optimally, 1.5 ºC).

Climate change litigation around the world

Considering governments’ efforts to be insufficient, individuals and communities have turned to the courts as an alternative means of achieving change in climate policy. The total number of climate change actions issued globally by November 2020 is estimated at over 1,650, with cases filed in 36 countries worldwide, including the UK and Poland (where, respectively, 59 and four climate-related proceedings are currently pending).

Starting with European cases, it is worth mentioning the very recent French case called “case of the century” (l’affaire du siècle). In 2021, a Paris court recognised the legal responsibility of the French state for its contribution to the climate crisis. The court found that France’s failure to reduce its greenhouse gas (GHG) emissions in the short term, in line with its own targets, contributes to climate change, causing environmental harm in France, and therefore is unlawful. The lawsuit was filed by four French environmental organisations, with the support of 2.3 million people who signed a petition expressing their disappointment of the current government’s climate policy.

Plaintiffs, including individuals, organisations and communities, are claiming not only against governments, but also companies. For example, a Peruvian farmer has sued the German energy company RWE for the consequences of climate change. The claimant alleges that global warming has caused glacial retreat in the area near his village, causing serious threat to his property. The farmer is seeking payment of 0.47% of the estimated cost of protecting his lands against flooding. Such a proportion, the claimant submits, reflects RWE’s contribution to global GHG emissions by 2010. The case is now pending before the German Court of Appeal.

Climate change litigation may also involve banks, pension funds or investment funds standing accused of not disclosing or taking account of climate risks associated with their investment decisions. For instance, in a case brought in Australia, the claimant sued his pension fund for failure to protect his retirement savings from the financial devastation that would flow from climate change. The fund agreed to settle the dispute amicably, stating that “climate change is a material, direct and current financial risk to the superannuation fund,” and that “it is important to actively identify and manage these issues”. The above example proves that a single stakeholder can influence the policy of a large fund, even when it comes to environmental issues.

Climate change litigation in UK and Poland

The British and Polish approach to addressing climate change is rather different. The UK’s policy is to address the issue in legally binding documents such asthe Climate Change Act (2008), which obligates the government to reduce the UK’s net emissions of greenhouse gases by 100% relative to 1990 by 2050. The path to achieving this goal leads through ’carbon budgets’, each of them providing for a five-year cap on total greenhouse gas emissions.

The climate change legislation affects not only governmental decisions. The courts have also shown that they are willing to intervene when the executive does not take proper account of its climate change commitments. For example, in 2020 the UK Court of Appeal ruled that the cabinet’s Airports National Policy Statement, constituting a basis for expansion of Heathrow Airport, was unlawful. The court recognised that ministers did not adequately take into account the necessity to tackle the climate crisis, especially in accordance with the UK’s obligation resulting from Paris Agreement to limit global temperature increase to “well below” 2ºC. However, the ruling of the Court of Appeal was subsequently overturned. The Supreme Court held that referring to Paris Agreement commitments was not obligatory since it had not yet been implemented into UK law at the time when the national policy framework was adopted.

In Poland, there is no legally binding act of parliament similar to the British Climate Change Act. Polish climate policy is defined by the EU, which sets emission reduction targets for each member state, as well as for the EU as a whole. The European goals for 2020, apart from energy efficiency improvement and development of renewables, provided for a cut in greenhouse gas emissions by 20% in relation to 1990. The targets for 2030, as revised in December 2020, are to reduce emissions by 55%, and to achieve carbon neutrality by 2050. However, for the time being Poland remains the only EU country which did not formally undertake to attain neutrality within this period. The Polish government’s reluctance to support this idea is connected with Poland's high dependence on coal; the prevailing opinion is that energy transition could lead to significant social and economic costs.

One of the first Polish cases related to inadequate climate change policy was brought in 2018 against PGE GiEK – the company operating Bełchatów power station, Europe’s largest power plant. The action was initiated by one of the minority shareholders of the defendant – ClientEarth Foundation, an environmental organisation. The claimant seeks to block the plant operators from burning lignite, or to oblige them to adopt measures reducing carbon dioxide emissions, by 2035. In the autumn of 2020, the court obligated the parties to conduct settlement discussions pertaining to limiting the plant’s climate and environmental impact. More importantly, this was the first time in Polish jurisprudence that a court took the position that climate change is a problem which must be tackled, and that climate is a common good for which everyone is responsible, including the coal companies.    

While the outcome of the case is yet to be seen, it has already triggered a lively debate on liability for climate change and legal means available to support the fight against global warming. Probably, as in other countries, there will be more and more proceedings instigated before the Polish courts, seeking to hold companies, or maybe even the government, accountable for adequate measures reducing climate risks.

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