European Court To Release Climate Change Opinion On April 9

The European Court of Human Rights has announced that they will release their opinion in a groundbreaking climate case that seeks to hold European Union member states liable for the impact of climate change. If successful, the plaintiffs could force governments to take more action to prevent climate change and impact international legal precedent. The Grand Chamber of the ECHR will deliver the ruling, alongside two other cases, at a public heading on April 9.

Duarte Agostinho and Others v. Portugal and 32 Others was brought by six Portuguese nationals, born between 1999 and 2012, in September 2020. The plaintiffs allege that 33 Signatory States to the Paris Agreement failed to comply with their commitments to limit the impacts of climate change.

The Paris Agreement, adopted by 196 parties at the COP21, the 2015 UN Climate Change Conference in Paris France, set a goal to limit global warming to 1.5° C by reducing greenhouse gas emissions to 45% by 2030 and reaching net zero by 2050. While the Paris Agreement is legally binding, the enforcement of those obligations has yet to be truly tested.

In March 2023, the United Nations General Assembly requested the International Court of Justice to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, Obligations of States in respect of Climate Change, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development. That opinion will most likely not be released until 2025.

Agostinho v. Portugal attempts enforcement of the Paris Agreement through the European Convention on Human Rights. Specifically, it points to Articles 1 (Obligations to respect Human Rights), 2 (Right to life), 3 (Prohibition of ill-treatment), 8 (Right to respect for private and family life), and 14 (Prohibition of discrimination). The plaintiffs “complain about the present and serious future effects of climate change, which they attribute to the respondent States. They refer in particular to heatwaves, wildfires, and wildfire smoke which they say impact their lives, well-being, mental health and their homes.”

A public hearing was held on September 27, 2023, at the ECHR in Strasbourg, France. After months of closed-door debate, the Court has announced they will be issuing the ruling in a public hearing on April 9. Agustino v. Portugal is the last case of the day.

Interestingly, the second case, Carême v. France, “concerns a complaint by a former inhabitant and mayor of the municipality of Grande-Synthe, who submits that France has taken insufficient steps to prevent global warming and that this failure entails a violation of the right to life and the right to respect for private and family life.” This case only relies on Articles 2 and 8 of the Convention. While this France case is getting less attention, it may be an indicator of the Portugal case ruling.

In my opinion, the likelihood of success by the plaintiffs is unlikely. Similar cases in other jurisdictions have failed. Without direct legislation establishing a liability, it is difficult to prove liability for climate change. It is even harder to compel a government to take specific action. Successful litigation against a government is generally found in stopping a legislation, not forcing them to enact a legislation. However the Court rules, it will have a significant impact on future litigation in the EU and internationally.