Talk is cheap. Governments, particularly wealthy, western ones, have been quick to make promises on climate change. They swear blind that they understand the threat the world faces, and that they will implement a policy response commensurate with it.  Few nations have adopted this rhetoric as determinedly as the UK, with the British government promising to transform the UK into a net-zero country by 2050, an oath enshrined in law through the passing of the Climate Change Act 2008 (Order 2019) by Parliament in the summer of 2019. 

Yet for all this hot air, whether in the form of domestic legislation like the above or international treaties like the Paris Agreement, even those wearing the most rose-tinted spectacles will see only incremental progress.  Reporting last year, the UK’s Committee on Climate Change (CCC) concluded that ‘this [2020] was not the year of policy progress that the Committee called for in 2019’, while most other western nations have been similarly apathetic.  While the Biden Administration has been more forthright in its determination to take on climate change, it is questionable as to whether the threat of climate change is obvious enough yet for voters to support governments who match the intensity of their rhetoric with the intensity of their actions, given the financial and lifestyle costs such policies will impose. 

Consequently, given the likely absence of a popular democratic incentive to implement such policies, other methods must be used to motivate governments to act.  Foremost among these alternatives is litigation, with the courts in most liberal democracies increasingly willing to recognise that climate change policy is capable of being enforced by the courts.  If we genuinely want governments to match reality with their rhetoric, it is likely, as the Sabin Center for Climate Change Law at the University of Columbia has found that such judicial engagement will be ‘central to efforts to compel governments and corporate actors to undertake more ambitious climate change mitigation’.  Here, the litigation targeting governments has generally pursued two causes of action; the first being statutory or treaty based commitments that seek to hold governments to their codified obligations; the second being human or constitutional rights, drawing on international and domestic rights documents.  For the threat of climate change to be effectively met, the courts must be willing to engage with these arguments, and to recognise that as our conception of rights and the environment evolves, all limbs of the body politic, not merely the executive and the legislature must accommodate this evolution.  

Within the UK, there has so far been a marked reluctance among the judiciary to take up the gauntlet. In 2019, Plan B, the environmental litigation group, filed one of their first cases, Plan B v Secretary of State for Business, Energy, and Industrial Strategy (SBEIS) [2018] EWHC 1892, contesting the Business Secretary’s decision to not revise the UK’s 2050 carbon target under the Climate Change Act 2008.  They argued that the UK’s signing of the Paris Agreement, coupled with the almost undisputed scientific consensus that global temperatures needed to be limited to a 1.5C rise, imposed a prima facie obligation on the Secretary of State to amend the UK’s carbon target. Here, the High Court and the Court of Appeal both refused to allow the case to proceed, with Supperstone J. at first instance finding that the Business Secretary retained discretion over the carbon target, and that retaining the original target was consistent with the recommendations of the CCC.  Further, he rejected the human rights claims outright, finding that it ‘raises a novel issue under the HRA 1998’, but that failing to take ‘proper preventive measures’ could not constitute a violation of the ECHR.  It will be interesting to see if the ECtHR’s Grand Chamber takes a similar view when it hears the climate change case brought by eleven Portuguese teenagers, Duarte Agostinho & Ors v Portugal & Ors, listed for oral argument later this year. 

It was in a later case, once more brought by Plan B, that judges heard full argument on how the Paris Agreement affected ministers’ obligations, this time relating to the expansion of Heathrow Airport.  In this case, R (Friends of the Earth et al) v Heathrow Airport [2020] UKSC 52, Plan B, alongside Friends of the Earth, argued that the Transport Secretary – then Chris Grayling – must consider the environmental sustainability of any projects, of which the government’s international commitments – in this case, the Paris Agreement – play a part.  Much like in SBEIS, the High Court rejected their arguments, but the Court of Appeal differed, overturning the High Court and finding that, in failing to considering the Paris Agreement in his grant of planning permission, Grayling’s decision was ultra vires.  

At the heart of this was the question of what constitutes ‘government policy’.  The Court of Appeal was content to conclude that treaty obligations, in this case to ‘limit the rise in global temperature to well below 2C and to pursue efforts to limit it to 1.5C’, could set a policy standard that bound the government; especially when such commitments were repeatedly recognised by ministers on the floor of the House of Commons. The fact that such a commitment had not been codified in legislation did not necessarily preclude it being government policy, with the appellate justices writing that ‘the concept of policy is necessarily broader than legislation’.  

Such a conclusion was the obvious one.  The government had signed a treaty and ministers had recognised the obligations it placed upon the government at the dispatch box in the House of Commons.  And in recognising and adopting such obligations, the government was not acting in breach of its legislative commitments, with the Climate Change Act 2008 setting a floor for emissions (an 80% reduction from the 1990 baseline), but not a ceiling.  To conclude that a commitment binding under international law and recognised by ministers did not form part of government policy would be stretching credulity. In some ways, treaties are a greater indication of government policy than any other document, with the executive vested with unilateral authority in this arena, subject to little, if any, parliamentary or judicial oversight. Yet this is precisely what the Supreme Court did.  They overturned the decision of the Court of Appeal, finding that Grayling was not bound to consider the more ambitious target.  

The crucial distinction here, according to the Supreme Court, was that any such policy had not been formally set out in writing – at least in a domestic context – and was still in the process of being developed.  Yet government policy is always evolving, with the Supreme Court’s judgment setting out the evolution UK’s climate policy throughout paragraphs [90]-[96].  Although ministers cannot be expected to relentlessly adhere to every subtle twist and turn of each department, with the risk of any ministerial statement creating a ‘bear trap’ (as Lords Hodge & Sales put it) for civil servants to fall into, ministers and their advisers should be required to abide by clear staging posts in a policy’s evolution.  Signed treaties, particularly when ratified by Parliament, amount to such a staging post. 

Nor does this serve to give direct effect to treaties through the back door. While treaties do not create rights or formal obligations on the domestic plane, as was conceded by both parties before the Court, it does not necessarily follow from this that they cannot demonstrate government policy.  As the Court of Appeal held, requiring Grayling to have taken the PA into account reflects the fact that the Planning Act 2008 does not require ministers to only take their binding legal obligations into account, but the much more ephemeral ‘government policy’.  For the UKSC to conclude that such policy cannot only be understood through formal written documents is to take – ironically – an unduly legalistic approach that ignores the reality of how government policy is made and how it is always in a state of flux, so narrowing the obligations of ministers, and here, fettering the ability of the courts to respond to the challenge of climate change.  

Reticence like this is concerning.  Even if each case makes only incremental progress, it is progress nonetheless.  Finding that the government doesn’t need to consider a climate target here or there may alone do little harm, but cumulatively can cause enough cracks to collapse the dam.   The UK Supreme Court would have done better to look at the ambition of their Irish or Dutch counterparts.  In Friends of the Irish Environment v Ireland, the Irish Supreme Court handed down a ‘landmark decision’, striking down the Irish government’s National Mitigation Plan for failing to be ‘sufficiently specific’ in how the climate targets would be met by 2050, with the proposed policies ‘excessively vague’.  Similarly, in Netherlands (Ministry of Economic Affairs & Climate Policy) v Urgenda, who interpreted their powers under the European Convention on Human Rights boldly, ordering the Dutch government to take more dramatic action to counter the threat of climate change.  

The litigants in Urgenda benefited from the fact that the Dutch legal system gives direct effect to international law, and from the willingness of the court to engage with the human rights arguments- a willingness that was absent in the UK courts in SBEIS. But although it was the human rights arguments – specifically, violations of Article 2 and 8 ECHR – that won the case, it was the Dutch Supreme Court’s generous interpretation of ‘common ground’ that was crucial.  Relying on ‘relevant international instruments [that] denote a continuous evolution in the norms and principles…’ the NSC boldly found that it was ‘common ground in modern societies’ that states need to reduce emissions by 25% by 2020. So while the UKSC was content to find that the UK government’s endorsement of the Paris Agreement and accompanying climate change resolutions were insufficiently clear for ministers to have to even consider them in making policy decisions, the Dutch Supreme Court was willing to assert that they were so certain and unanimous that they imposed binding legal obligations upon the Dutch state.  

If the case before the European Court of Human Rights, Duarte Agostinho, is to bear fruit, it will require similar confidence on the part of the Strasbourg justices.  The assertiveness of the Dutch Supreme Court in Urgenda has been criticised by some, arguing that they have stepped out of their judicial robes and into the suits of the executive branch, usurping the role of the government and its ministers.  Criticism such as this is flawed, however, with the NSC justices simply requiring the Dutch government to act consonantly with the promises it made.  Further, in only requiring the government to reduce emissions at the lowest bound of the range (by 25% rather than 40%), it deferred to the government’s assessment of what reduction would be sustainable. There was no instruction set down as to how the Dutch state was to remedy its shortcomings, with the government free to pursue its emissions targets in any way it saw fit, an obligation it promptly engaged with, promising to reduce its use of coal-fired power stations by 75% and introducing a raft of other measures, investing 3bn euros in the process. 

Already, the ECtHR has been bold, fast-tracking the case and extending its scope, asking the parties to consider if climate change may not only violate the rights to life and to respect for private life (Articles 2 and 8 respectively), but also the right to be free from ‘inhuman or degrading treatment or punishment’ under Article 3.  If the Grand Chamber finds that the claimants’ rights have been violated, the core of the judgment will resemble that of Urgenda‘s, recognising that while the violation of these rights may not have manifested itself yet, the inevitable reality of the rights being violated in the future engages them, particularly given that the nature of the threat means that once the rights are truly breached, they will likely remain so in perpetuity, with prevention being significantly more effective than any cure.  

Nor is imposing a positive obligation based upon a risk of harm discordant with the jurisprudence of the ECtHR. In Tatar v Romania, where local residents challenged Romania’s failure to properly regulate a gold mine, the Court found that where individuals are threatened by material risks, an obligation falls upon the state to mitigate such risks proactively, rather than waiting for the harm to arise.  The issue the Court relied upon the precautionary principle under international law, asserting that the absence of scientific certainty did not necessary justify inaction on the part of the state. Admittedly, the Court has retreated from this principle in subsequent decisions, most notably Hardy & Maile v UK, where it found that the existence of a regulatory regime (albeit a complex and incoherent one) was enough to legitimise the state policy, with the UK given a wide margin of appreciation in how it sought to mitigate the risk, provided it was seeking to do so. However, such a retreat does not preclude the Court from advancing it once more, while as Clark, Liston & Kalpouzos have argued elsewhere, there is now relatively little uncertainty as to the scale of the threat climate change poses to humanity. 

It may be that the scientific consensus around climate change means that the question of risk and the precautionary principle falls away, however, as Clark, Liston & Kalpouzos have argued elsewhere.  As the claimants have emphasised in their filings before the Court, there is now little scientific uncertainty as to the need for dramatic action to be taken on the part of all states.  Instead, it may be the scope of the claim in Duarte Agostinho, in filing against all 33 member states, that the claim may encounter greatest difficulty, with the Court (while seemingly so far willing to overlook the fact that the claimants have not exhausted domestic remedies in any of the defendant states) forced to consider the vast array of policies that different states have implemented in pursuit of climate change.   Here, the most assertive and desirable outcome would be for the ECtHR to narrow the margin of appreciation on the issue, setting out that while individual member states may differ in how they try to address the matter of climate change, such policies can be subject to meaningful judicial scrutiny.  In finding that the threat of climate change both engages rights under the ECHR and is justiciable through the courts, the ECtHR can push the domestic courts towards an Urgenda-like approach, with more deferential judicial systems, like the UK’s, thereby forced to grapple with the rights-based challenges brought against domestic climate change policy, rather than being able to dismiss them out of hand. 

Across Europe, states are engaging with the challenge of climate change in dramatically different ways, with some, such as Hungary, deliberately hindering progress, and with others, such as the UK, keen to make bold pronouncements, as we have recently seen, but often reluctant to follow through with the hard policy decisions necessary to realise any such promises.  For the climate crisis to be effectively resolved, domestic courts, encouraged by animating jurisprudence from the ECtHR, must do more to force governments to reckon with the challenge of climate change and the threat it poses to citizens’ rights.  So far, some, such the Irish and Dutch Supreme Courts, have been willing to assert their authority against intransigent governments, but as a collective, the European courts are still too deferential, approaching it more as a political matter for the international community to redress, than legitimate legal terrain for the judiciary to assert their authority over. 

Nicholas Reed Langen edits the LSE Public Policy Review and writes on the British constitution for The Justice Gap

(Suggested citation: N. R. Langen, ‘Confronting Climate Change in the Courts’, U.K. Const. L. Blog (27th April 2021) (available at https://ukconstitutionallaw.org/)