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European Courts Face a Rising Tide of Climate Litigation

European courts, both at the Union level and the Member State level, are continuously facing a rising tide of climate litigation cases, with different responses.

At the European Union (EU) level, on March 25, 2021 the Court of Justice of the European Union (CJEU) dismissed the so-called “People’s Climate case,” a legal action brought in 2018 by ten families from European and non-European countries who sought the annulment of the 2018 European legislative package and an order from the court to the EU institutions to set more stringent targets for the reduction of greenhouse gas emissions.  The CJEU confirmed on appeal the decision of the General Court of the European Union of May 8, 2018, ruling inadmissible the claim, as the claimants were not directly and individually concerned by the legislation they sought to have annulled.

However, in Germany, in a similar case brought by individual claimants and non-governmental organizations (NGOs) against the Federal Climate Change Act of 12 December 2019, the German Federal Constitutional Court reached a different conclusion in an order announced on April 29, 2021.   As discussed in a recent Jones Day Alert, the court agreed with the claimants that the Act governing national climate targets and the annual emission amounts allowed until 2030 are not compatible with fundamental rights.  According to the court, the legislator did not take the precautionary steps to mitigate the impact on the freedom guaranteed by fundamental rights of the future obligations to reduce emissions and adopted provisions that are not sufficient to ensure that the necessary transition to climate neutrality is achieved in time.  Interestingly, the court highlighted that the fundamental right to property also imposes a duty of protection on the state with regard to the property risks caused by climate change.

Finally, in France, courts are increasingly receiving climate change related lawsuits against companies for the alleged non-compliance with their “duty of vigilance.”  The so called duty of vigilance is based on the 2017 French law which requires large companies operating in France to draw and make publicly available internal care plans applying to their worldwide operations and to their suppliers and subcontractors, in order to mitigate breaches of corporate social responsibility rules, including in their supply chain.  For example, a group representing indigenous people living in the Amazon Forest and NGOs from France and the U.S. filed a lawsuit against a French grocery store chain in March 2021. Claimants argue that the company’s supply chains in Latin America would result in deforestation and the loss of land in Brazil and Columbia, in violation of its duty of vigilance.

These litigations illustrate the variety of climate change lawsuits that European courts have to increasingly deal with and the ever-growing array of legal venues explored by claimants to challenge EU institutions, EU Members States and companies alike.

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