Environmental Judicial Activism – Will Switzerland continue to snub the European Court of Human Rights and its successful senior citizens?

In April 2024, we reported on a landmark ruling by the Grand Chamber of the European Court of Human Rights (“European Court”).  The decision confirmed that the Swiss government had positive obligations regarding climate targets under human rights law.   By failing to take prompt and necessary steps, the government had breached the human rights of its citizens.  We predicted that this important ruling could prompt further environmental activism globally and influence future legal challenges or decisions.  We also considered how the decision might ultimately impact corporate entities.  However, the latest updates arising from Switzerland seem to potentially undermine the implementation of the European Court’s findings, and there is a risk that this may create uncertainty and encourage others to resist the influence of international courts in the future.

The facts in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

The claim was brought by four senior women and the KlimaSeniorinnen Schweiz (Senior Women for Climate Protection) association.   In summary, the claimants argued that Switzerland had failed to act to reduce carbon emissions in line with the relevant reduction target and that their health and living conditions were directly at risk due to the impacts of climate change.  Claims had been issued in the Swiss national courts and, following the Swiss Federal Council’s dismissal of the case, the claimants turned to Greenpeace International and the European Court.

European Court’s Judgment

The case had been fast-tracked alongside two other cases against different states.   In this case, the European Court was persuaded by the evidence submitted and held that the Swiss government was legally obligated to put in place the necessary regulations and measures aimed at preventing an increase in greenhouse gas emissions but had failed to take appropriate steps to do so.  Article 8 of the European Convention on Human Rights (the “Convention”) includes a right to protection by state authorities from the serious adverse impacts of climate change on health, wellbeing, and quality of life.  A key finding was that the Convention imposed positive obligations on states, for example to adopt and apply regulations and measures to mitigate the impacts of climate change, as well as to prevent emissions and increases in the average temperature.  In addition, it was held that the claimants had not been given appropriate access to a fair public hearing in violation of Article 6 of the Convention.  Having concluded that Article 6 was breached, the European Court did not deem it necessary to examine the claim regarding Article 13 of the Convention.

The unprecedented decision signalled that national courts must properly engage with issues and evidence on climate change. Switzerland had taken inadequate steps to try to combat climate change, including failing to achieve past targets, there were also critical gaps in the relevant legal and regulatory framework.  The European Court therefore held that the Swiss Government failed to comply with the relevant requirements of the Convention in a prompt or consistent manner.

By a majority verdict delivered by the top bench of the European Court, the Swiss Confederation was ordered to review and implement measures to address the identified shortcomings. Switzerland has until October 2024 to inform the Council of Europe how it plans to implement the decision.  Notably, the UK representative, Judge Eicke KC, expressed a partly concurring and partly dissenting opinion, which has since been highlighted by those seeking to challenge the decision.  Though he accepted the scientific evidence and importance of states taking urgent action to address climate change, he exercised caution regarding the potential expansion of the victim status or standing and rights under Articles 2 and 8.  He also raised concerns that the decision could prove to be an unwelcome and unnecessary distraction for authorities facing litigation over adopted regulations and measures.

Update

Earlier this month, the Swiss parliament’s lower house rejected the European Court’s ruling.   Although the judgment contained guidance on what a regulatory framework for reaching climate neutrality might look like, the European Court deferred to the national lawmakers on the appropriate mitigation measures and how best to implement them.  As such, some critics have since argued that the ruling is incapable of strict enforcement at a national level. Views also appear to differ around precisely what measures Switzerland need to implement in order to comply with the ruling and meet the Convention obligations.

The Swiss parliament’s position is that the state was already taking sufficient measures and steps in accordance with its national democratic process. Parliament’s declaration called on the Swiss federal government not to take any further action. This declaration was adopted 111 in favour and 72 against, with limited abstentions, and follows similar decisions in response to the ruling by the Swiss Council of States and the Senate of Legal Affairs.  It was also adopted by the upper house.  The view of some of those involved in the discussions was that the European Court had disproportionately overreached its authority (even going so far as accusing it of “judicial activism”).

However, it is noteworthy that the European Court had made clear observations in its decision to the effect that it was only able to determine the complaint within the limits of the exercise of its competence pursuant to the Convention. The European Court also acknowledged the need for oversight of compliance with legal requirements, but that judicial intervention could not directly replace, or substitute, action required by government. Ahead of the debate, the KlimaSeniorinnen and Greenpeace had also reportedly submitted a petition signed by over 20,000 people urging politicians to respect the ruling and recognise that democracy is based upon human rights.

If the Swiss Federal Council follows parliament’s recommendations to continue to ignore the European Court’s decision, then there is a real risk that this may create uncertainty and set a dangerous precedent on the integrity and application of environmental and international human rights law.  However, the recent parliamentary declaration is non-binding and has already attracted some widespread criticism globally.  As such, the Swiss Federal Council may instead decide (in August 2024) to opt to comply with the earlier ruling.

The current UK landscape

As noted in our last article, UK climate litigation had predominantly focussed upon legal challenges to specific developments, for example high-profile campaigns and challenges connected with planning applications in the context of transportation and aviation projects. Over time there has been an increase in challenges concerning political policies and strategies: recently there have been further challenges and applications for judicial review regarding the UK Government’s Carbon Budget Delivery Plan.

The Supreme Court recently ruled by majority in R (on the application of Finch on behalf of the Weald Action Group) (Appellant) v Surrey County Council and others (Respondents) [2024] UKSC 20 that a local authority should have considered the full environmental impacts of combusting/burning oil extracted and refined from new wells at a site as part of the planning review and permissions processes.  This has been viewed as another significant decision which will impact future UK oil and gas or drilling projects, as well as other projects with downstream emissions, i.e. highways or aviation projects.

The recent court decisions therefore continue to highlight the evolving nature and complexities of the legal landscape and the tensions between balancing competing interests of public bodies (and democracy) on the one hand, and wider policy, environmental or scientific issues on the other.  From a wider market perspective, the Commonwealth Climate and Law Initiative (“CLLI”) has referenced a UCL and University of Exeter report on certain ecosystem ‘tipping points’ which could impact the global economy in the context of highlighting the importance of corporate entities and directors’ duties[1].  This follows the findings in a published legal opinion co-commissioned by CCLI, which concluded earlier this year that directors in England and Wales could breach their duties if they fail to properly identify and take appropriate steps to mitigate latent financial risks linked to nature-related impacts or dependencies[2].

Commentary

Earlier this year the European Court’s ruling was viewed as laying down an important marker for climate and associated human rights matters.  It followed a range of climate-related activism and claims aimed at raising increased awareness and prompting governments to take appropriate actions.  The decision recognised a primary obligation on the state to devise, adopt and implement measures aimed at mitigating future climate change impacts.  Accordingly, the decision, coupled with continued technological and scientific advancements, may bolster future environmental activism by those seeking to drive further positive change strategy, create new law or regulation, and cement accountability of governments.  We may also see litigation being at least partly funded by associations who may have taken comfort by this decision and have sufficient resources to bring such claims.  The fact that the Convention draws upon wider human rights concepts and language used in other international conventions may also mean that the application and interpretation of those conventions become impacted too.

The ruling created a precedent relevant to other member states to the Council of Europe and will therefore be persuasive in deciding future climate change cases. Although the decision is non-binding on the UK courts, it must be considered by them. It is also possible that the judgment could influence anticipated advisory opinions in the International Court of Justice and Inter-American Court of Human Rights. It is still early into the implementation of the decision, however in view of the national discussions in Switzerland, this debate has further increased awareness of the ruling and raised important questions over the integrity of separation of powers and the rule of law.  It is open to the Swiss Federal Court to break with the parliament and comply with the decision, however, there have been reports that one of its members, and the Environment Minister, has downplayed or questioned the impact of the ruling on democracy.

Whether or not the ruling is implemented via national or international measures remains to be seen.  The successful claimants may potentially decide to take steps to complain to the Council of Europe if they consider that Switzerland is non-compliant with the ruling. Alternatively, the Committee of the Council of Europe could decide to meet before October, as part of its ability to monitor compliance with the European Court rulings.  It is also possible for the Committee to refer cases back to the court, but this is seldom used and only in very exceptional circumstances. Countries can potentially be expelled from the Council of Europe, or they can decide to leave the Convention: however, such decisions would not be without substantial reputational, social, economic or political repercussions. Typically, economic or trade sanctions, and other diplomatic efforts, are used as practical ways to try to make change or exert leverage over states unreasonably refusing to comply with international court decisions.

Whilst the European Court’s finding is against a government, states are likely to take steps to meet their own obligations under international law by introducing new domestic laws and regulations which, in turn, impact businesses at a national level. This is supported by the fact that the decision provided a degree of discretion over the precise measures Switzerland should follow nationally.

Previous Beale & Co articles have commented on key developments in environmental case law and sought to highlight the risk of climate-related litigation for corporate entities. Therefore, businesses with operations or projects directly impacting the environment, such as those in the industrial, oil and gas, energy or mining sectors, or those working with high-emitting assets, as well as their directors and officers, may also continue to come under increased public scrutiny.  With the growing body of environmental awareness and legal action, as well as the ever-evolving legal and regulatory landscape, businesses will struggle to avoid or legitimately assert that they were unaware of the potential climate risk, and so will need to take appropriate account of this when considering their involvement in projects, ESG strategies, and public reporting and disclosure obligations going forward.

Please contact the authors should you require support on any of the issues covered in this article.

[1] Ecosystem tipping points: Understanding risks to the economy and financial system, by Lydia Marsden, Josh Ryan-Collins, Jesse F Abrams, and Timothy M Lenton (April 2024) – ecosystem_tipping_points_policy_report_iipp.pdf (ucl.ac.uk)

[2] CLLI, “Company Directors should consider company’s nature-related risks (including climate risks): landmark English Law legal onion), 13 March 2024 – Company directors should consider company’s nature-related risks (including climate risks): landmark English law legal opinion – CCLI (commonwealthclimatelaw.org)