Climate Change Litigation, the Just Transition, and Human Rights Due Diligence

Intro

In April 2024, the European Court of Human Rights (ECtHR) issued three rulings addressing the state's duty to protect the environment under the European Convention on Human Rights (ECHR). Among these, the decision in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland stands out for its expansion and clarification of states’ duties to protect individuals from harm caused by climate change. While the primary impact of this ruling is on state responsibilities, it also carries important implications for environmental and human rights due diligence (EHRDD) as well as implications for the just transition movement. The other two cases, while dismissed, clarified the baseline harm that must be shown for a case to be admissible. This blog post examines the Verein KlimaSeniorinnen Schweiz case, its significance for EHRDD, and its potential influence on future litigation and corporate accountability in the context of climate change.

The ECtHR Cases: An Overview

The three cases—Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, Carême v. France, and Duarte Agostinho and Others v. Portugal and 32 Others—focused on state responsibilities under the ECHR to address climate change and protect citizens' rights.

Verein KlimaSeniorinnen Schweiz and Others v. Switzerland

In this case, four women and the Swiss association Verein KlimaSeniorinnen Schweiz, representing older women concerned about the health impacts of climate change, argued that Swiss authorities' insufficient climate action violated their rights under Article 8 of the ECHR. Article 8 guarantees the right to respect for private and family life, home, and correspondence. The court interpreted this right to encompass effective protection by state authorities from “serious adverse effects” of climate change on individuals' life, health, well-being, and quality of life. The court found that the Swiss Government failed to meet its positive obligations under the Convention by not adequately mitigating the serious adverse effects of climate change.

Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others

The Carême v. France and Duarte Agostinho and Others v. Portugal and 32 Others cases were dismissed by the court as inadmissible, highlighting critical aspects of standing and admissibility before the ECtHR. In Carême v. France, the court found that the applicant failed to demonstrate direct and personal harm resulting from the state's actions, emphasizing that speculative or hypothetical harm does not meet the threshold for admissibility. In Duarte Agostinho and Others v. Portugal and 32 Others, the court concluded that the applicants did not sufficiently establish a direct causal link between the states' alleged inaction and the specific harm they purportedly suffered. This decision underscores the necessity for claimants to provide concrete evidence of how state policies or omissions directly impact their rights.

The court's decisions emphasize the stringent requirements for standing, necessitating a clear and tangible connection between the alleged harm, the impact on the victim(s), and the actions or omissions of the state. This clarification is significant as it sets a precedent for future environmental litigation, highlighting the threshold that claimants must meet to have their cases heard.

Obligations of States under the Ruling

The recent ECtHR rulings underscore the differentiated responsibilities between state and non-state actors in addressing climate change and protecting human rights. States, as primary duty-bearers under international human rights law, have explicit obligations to protect, respect, and fulfill human rights within their jurisdictions. This is seen increasingly to include adopting and implementing measures to mitigate climate change and its adverse effects on human rights. Indeed, the ECtHR’s ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland provides a clear framework for the obligations of states under international law to combat climate change. The ECtHR outlined several specific requirements that states must meet to remain in compliance with the ECHR:

1. Adopt General Measures: States must specify a target timeline for achieving carbon neutrality and quantify future greenhouse gas (GHG) emissions in line with national and global climate change commitments.

2. Set Intermediate Targets: States are required to establish intermediate GHG emissions reduction targets and pathways by sector or other relevant methodologies to meet overall national GHG reduction goals.

3. Provide Evidence of Compliance: States must demonstrate compliance with the established GHG reduction targets or show they are in the process of achieving these targets.

4. Update Targets with Due Diligence: States must keep GHG reduction targets updated based on the best available evidence and act with due diligence.

5. Act Consistently and Appropriately: States must devise and implement relevant legislation and measures in a timely and consistent manner.

In assessing whether Switzerland fulfilled these obligations, the Court found significant shortcomings. Switzerland failed to quantify national GHG emissions limitations and did not meet past GHG emission reduction targets. The Swiss authorities also did not act in a timely and consistent manner in developing and implementing the necessary legislative and administrative framework. As a result, the Court concluded that Switzerland failed to comply with its positive obligations under the ECHR.

New Obligations or Reinforcement of Existing Duties?

The ECtHR ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland places a renewed emphasis on state obligations to mitigate climate change under ECHR. However, it is important to note how much of these obligations are truly "new" and how much they reinforce existing duties that states in Europe have already undertaken concerning GHG emissions.

Prior to this ruling, European states have long been subject to robust frameworks aimed at reducing GHG emissions and mitigating climate change impacts. Key instruments include:

1. The Paris Agreement: European states are parties to the Paris Agreement, which mandates national commitments to limit global temperature increases and reduce GHG emissions. The agreement requires states to set nationally determined contributions (NDCs), establish long-term low-emission development strategies, and report on progress.

2. European Union Regulations: The EU has implemented extensive legislation targeting GHG reductions, including the EU Emissions Trading System (ETS), the Effort Sharing Regulation (ESR), and the Renewable Energy Directive. These regulations set binding national targets and mechanisms for reducing emissions across various sectors.

3. National Legislation: Many European states have enacted national laws aimed at achieving carbon neutrality and reducing GHG emissions. For instance, the UK's Climate Change Act 2008 legally binds the country to reducing emissions by at least 80% by 2050 compared to 1990 levels, with interim targets set by carbon budgets.

In addition to reinforcing these existing obligations, the ECtHR ruling introduces several critical dimensions that heighten the focus on compliance and accountability:

1. Human Rights Context: By framing the state's duty to mitigate climate change within the context of protecting human rights under Article 8 of the ECHR, the ruling emphasizes the direct link between environmental harm and individual rights to life, health, well-being, and quality of life. This human rights perspective can intensify the legal and moral imperative for states to act decisively on climate change by opening up a new avenue for individuals and associations to bring litigation to compel state and corporate action.

2. Judicial Oversight and Accountability: The ruling underscores the role of judicial oversight in holding states accountable for their climate actions. The ECtHR has clarified that states must act within a defined “margin of appreciation” (the leeway that national authorities have in fulfilling their obligations under the Convention while considering their unique circumstances), providing specific evidence of compliance and acting with due diligence. This judicial scrutiny could lead to increased litigation and pressure on states to demonstrate tangible progress in meeting their climate obligations.

3. Enhanced Enforcement Mechanisms: Although states have existing obligations under international and EU law, the ECtHR ruling may catalyze stronger enforcement mechanisms at the national level. By mandating that states provide evidence of compliance and regularly update targets based on the best available evidence, the ruling could spur more rigorous national enforcement actions against non-compliant businesses.

4. Clarification of Positive Obligations: The ruling provides detailed guidance on the specific actions states must undertake to meet their obligations, such as adopting general measures, setting intermediate targets, and acting consistently. This clarity can help eliminate ambiguities in existing obligations and ensure that states adopt comprehensive and coordinated strategies to combat climate change.

Implications for Businesses

The ECtHR’s ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland has implications for businesses, particularly concerning how they conduct EHRDD and align their operations with state efforts to mitigate climate change. The ruling outlines a framework that states must follow, including adopting general measures, setting intermediate targets, demonstrating compliance, updating targets with due diligence, and acting consistently and appropriately. These state obligations will inevitably cascade down to the regulatory expectations imposed on businesses at the national level. Here are a few specific implications:

Alignment with State Regulatory Frameworks

States are required to adopt general measures specifying a timeline for achieving carbon neutrality and quantifying future GHG emissions. This obligation may imply that businesses operating within these jurisdictions will also need to set similar goals and demonstrate their contributions to national targets. In anticipation of such a requirement, companies would benefit from doing the following:

1. Setting Carbon Neutrality Targets: Companies would benefit from establishing their own carbon neutrality targets, mirroring state goals. This involves identifying specific actions to reduce emissions across all operations and supply chains.

2. Establishing Intermediate Emissions Reduction Goals: Similar to state obligations, businesses should set intermediate targets that align with the broader national and international climate objectives. This will require developing detailed pathways to achieve these targets, monitoring progress, and adjusting strategies as needed.

State Enforcement and Business Accountability

Given the court’s emphasis on timely and consistent state action, it is likely that there will be increased regulatory enforcement at the national level. States will be motivated to hold businesses accountable for their contributions to GHG emissions to demonstrate compliance with the ruling. Companies should prepare for:

1. Stricter Audits and Inspections: Expect more rigorous audits and inspections from regulatory authorities, requiring detailed documentation of environmental compliance and, potentially, evidence of EHRDD efforts.

2. Enhanced Compliance Programs: Develop and maintain robust compliance programs that include comprehensive EHRDD processes, environmental impact assessments, and clear documentation of emissions reduction efforts. This will not only satisfy regulatory requirements but also position companies to proactively address potential risks.

3. Legal Preparedness: Stay informed about evolving legal standards and prepare for potential litigation. This includes aligning corporate practices with international human rights and environmental standards as a shield against potential causes of action at the national level enforcing environmental regulations and court rulings.

EHRDD Integration

The ruling underscores the necessity for businesses to integrate EHRDD into their operations, aligning with frameworks such as the Corporate Sustainability Due Diligence Directive (CSDDD) and the EU Batteries Regulation (EUBR). Businesses should proactively incorporate the principles outlined in the ruling into their EHRDD processes, which includes:

1. Proactive EHRDD Measures: While not required by the ECtHR ruling, businesses should adopt proactive EHRDD measures that identify, prevent, mitigate, and account for the environmental and human rights impacts of their (and their suppliers’) operations, as well as efforts to remediate grievance. Such efforts will contribute to compliance with national regulator mechanisms that may require companies to show efforts at reducing GHG emissions along with other human rights and environmental targets.

2. Regularly Updating Environmental Policies: Businesses should ensure that their EHRDD processes include regular updates to their environmental policies based on the latest scientific data and best practices. This dynamic approach, which should be informed by grievance mechanisms and feedback loops, ensures that companies remain compliant with evolving state and international standards. Additionally, revising codes of conduct and establishing standard operating procedures that extend to suppliers can help reduce GHG emissions throughout the supply chain.

3. Engaging with Stakeholders: Effective EHRDD requires meaningful engagement with stakeholders, including local communities, non-governmental organizations, and regulatory bodies. By involving stakeholders in the identification and mitigation of potential environmental and human rights risks, businesses can develop more comprehensive and effective strategies. This engagement also helps in establishing a feedback loop that contributes to continuous improvement of environmental policies and practices.

Compliance Evidence and Transparency

The ruling requires states to demonstrate compliance with their GHG reduction targets. This likely means that businesses will face increased scrutiny from national regulators who will demand evidence of corporate activities’ consistency with these targets. Companies should:

1. Develop and Implement Compliance Strategies: Create comprehensive strategies to meet intermediate emissions reduction goals, including detailed plans and timelines.

2. Regular Monitoring and Reporting: Implement robust systems for regular monitoring and transparent reporting on environmental performance and EHRDD efforts. Under the CSDDD, annual reporting on efforts to identify, mitigate, and remediate impacts is required. Companies should use this monitoring and reporting mandate as a springboard to proactively report on their environmental obligations that may result from this ruling on GHG reduction targets. Those monitoring efforts can integrate collection of data and records to help demonstrate compliance.

Strategic and Operational Adjustments

To align with the new regulatory environment, businesses should make strategic and operational adjustments. This includes:

1. Investing in Sustainable Technologies: Invest in technologies and practices that significantly reduce their carbon footprint. This can include renewable energy sources, energy-efficient systems, and sustainable materials.

2. Integrating Environmental and Human Rights Considerations: Ensure that environmental and human rights considerations are integrated into corporate governance frameworks. This involves addressing these issues at the highest levels of decision-making and embedding them into the corporate culture. Additionally, companies should revise codes of conduct, establish standard operating procedures, and require compliance throughout their supply chains, defined by the CSDDD as “chain of activities”.

Conclusion: Advancing the Just Transition

The ECtHR’s ruling in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland not only underscores the critical responsibilities of states in mitigating climate change but also highlights the intertwined roles of businesses in this global effort. By enforcing comprehensive regulatory frameworks, setting ambitious GHG reduction targets, and ensuring compliance through rigorous HRDD, states can drive significant progress toward environmental sustainability. However, the realization of these goals hinges on the proactive engagement and compliance of businesses.

Businesses that align their operations with the principles outlined in the ruling and integrate EHRDD processes will be better positioned to meet emerging regulatory expectations and contribute meaningfully to the just transition. This involves regularly updating environmental policies, engaging in transparent reporting, and actively involving stakeholders in environmental and human rights considerations. By doing so, businesses not only mitigate legal and reputational risks but also play a vital role in fostering a sustainable and equitable future.

The just transition aims to balance the urgency of environmental sustainability with the need for social equity, ensuring that the shift towards a low-carbon economy does not disproportionately impact vulnerable communities and workers. Integrating comprehensive EHRDD practices enables businesses to ensure that their environmental initiatives uphold human rights and promote social justice. The ECtHR’s recent rulings serve as a clarion call for both states and businesses to act decisively and collaboratively. By making concerted efforts to reduce GHGs, uphold human rights, and engage in transparent and accountable practices, we can advance the just transition, ensuring that economic development and environmental stewardship are aligned with social equity and justice.