As we commemorate Earth Day 2024, we contemplate the recent landmark ruling by the European Court of Human Rights (ECtHR). The ruling, which held that governments have a duty to mitigate against climate change and failure to do so is a breach of the European Convention on Human Rights (ECHR), serves as a poignant reminder that the consequences of climate change extend beyond mere physical effects. The impact encompasses our fundamental rights, health, well-being, and quality of life.
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland
Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was one of three climate change related cases brought before the ECtHR, the others being dismissed for lack of procedural standing. The applicants, a non-profit organisation representing over 2,500 women aged 64 and over living in Switzerland, and four elderly Swiss women aged between 78 and 89, stated that they were highly vulnerable to heatwaves caused by climate change due to their age and sex. They argued that by failing to adopt and implement adequate measures to mitigate climate change, the Swiss government had failed to comply with its positive obligation to protect life (Article 2) and breached the applicants right to private and family life (Article 8). The applicants also claimed violations of Articles 6 (right to a fair hearing) and 13 (right to an effective remedy) on the basis that no effective domestic remedy was available to them for the purpose of submitting their complaints.
On 9 April 2024, the ECtHR held that the ECHR encompasses “a right for individuals to effective protection by the State authorities from the serious adverse effects of climate change on their lives, health, well-being and quality of life” and that governments have a “duty […] to adopt, and to effectively apply in practice, regulations and measures capable of mitigating the existing and potentially irreversible, future effects of climate change”. By failing to meet its greenhouse gas emission reduction targets or to establish a “regulatory framework setting the requisite objectives and goals”, including a carbon budget or national greenhouse gas emissions limitation, the Swiss government had not complied with its positive obligations under the ECHR.
What does this mean for climate change litigation?
Verein KlimaSeniorinnen Schweiz follows the upwards trend in climate change litigation over the past decade, with an estimated 1,500 cases filed since 2015. Many cases challenge governments’ emission targets, failure to take action against climate change or interpretation of climate change laws, and there have been a growing number of cases against companies and their directors in relation to climate change.
However, this is the first time the ECtHR has ruled on climate change, rather than a national court, and courts in ECHR member states including the UK will be obliged to consider its judgment. It is also likely that we will see increased climate change litigation on human rights grounds as the outcome of the case will provide grounds for optimism for potential climate change litigants and strengthens the arguments that there is a duty to take action against climate change and that climate change is a human rights issue.
It is also worth noting that the ECtHR, while recognising that governments have a duty to take action, stopped short of giving further guidance on this issue, stating that governments should “be accorded a wide margin of appreciation” to determine how to meet their climate change obligations. In his dissenting opinion, Judge Eicke noted that the case would give “hope that litigation and the courts can provide “the answer” without there being, in effect, any prospect of litigation (especially before this Court) accelerating the taking of the necessary measures towards the fight against anthropogenic climate change”.
What does this mean for UK companies?
We will have to wait to see how the ECtHR’s decision plays out in the UK courts and what, if any, measures the UK government will take as a result of the ruling. However, it would be prudent for companies to consider how the judgment may impact them. As well as the potential for more climate change related litigation against companies, applicants will likely seek to extend the duty to mitigate against climate change and violation of human rights for failure to do so to companies and directors as well as governments. There has also been increased shareholder activism for failure to take adequate action against climate change, which is unlikely to abate following the ECtHR’s judgment.
While litigation and activism are more extreme outcomes, companies should still actively consider how they are mitigating their environmental impact and take appropriate steps to do so. These should be supported by robust environmental policies which are appropriate to the individual organisation and the industry in which it operates. Policies should be reviewed on a regular basis to ensure that they are up-to-date and continue to be appropriate.
Measuring, monitoring and verifying environmental impact data particularly emissions will also play a key role in reducing impact and demonstrating efforts to do so, even if there is no current requirement for a company to disclose this data. Data captured should inform and influence company policies and it is worth considering including scope 3 emissions as well as scope 1 and 2 as for many organisations this will be the biggest source of emissions.
The above is, of course, very high level: it is not an exhaustive list of actions and any measures taken will need to be determined in the context of the organisation itself.
To discuss any of the points raised above or how we can support your organisation, please contact one of our lawyers who would be very happy to discuss how we can help you.
Main authors
Carla Parsons and Josh Wooller
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