Cases against governments and legislatures to achieve higher greenhouse gas reduction

Under this category, we summarize lawsuits against federal or sub-state legislators and/or governments, in which the plaintiffs challenge insufficient efforts to tackle climate change, with the goal of enforcing stricter climate policies.

Such cases can take on different forms.

Where climate-related legislation, a climate program or policy already exists, but litigants deem this to be insufficient, they may challenge the specific law, program or policy in court (this is sometimes called a negative challenge).

If such a challenge is successful, the court will quash or declare the legislation, program or policy invalid. This does not, however, automatically mean that the legislator or government is required to enact new or different climate laws, programs or policies which are designed to achieve a higher greenhouse gas reduction target.

Such an obligation may follow from a national law, such as in Friends of the Irish Environment CLG v. Ireland, or even from the Constitution, such as in the German Klimaklage.

In other cases, claims were successfully based on domestic and/or international human rights norms.

On the other hand, where no climate-related legislation, program or policy exists yet, litigants may ask the court for an order against the legislature or government, mandating them to enact such legislation, program or policies to achieve a certain level of greenhouse gas reduction (this is sometimes called a positive challenge).

This was the case, for example, in the Dutch Urgenda case.

Sometimes, cases fall in between the categories of “negative” and “positive” challenges. For example, litigants may challenge an existing law, program or policy because they claim that higher-ranking law – such as the constitution or international human rights norms – in fact require the legislator and government to enact stricter legislation, programs or policies.

An example is the German climate case (“Klimaklage”), also known as Neubauer, et al. v. Germany.

The outcome of such lawsuits always depends to a large extent on national law, even where the litigants rely on international human rights norms. Therefore, very similar legal challenges to those described above have failed in other jurisdictions. An example is Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others.

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Whether such challenges are directed against the legislature or the executive depends on which branch, under the respective national law, has the competency and responsibility to deal with climate change. It can also depend on the specific act the challenge is targeting.

This is illustrated by two German cases:

The so-called “Klimaklage”, also known as Neubauer, et al. v. Germany, is a constitutional complaint directed against a legislative act, the Federal Climate Protection Act. This was filed with the German Constitutional Court.

On the other hand, a case by Greenpeace Germany and others targeted the climate policy of the German federal government. This was filed in the administrative court.

“Klimaklage” (Neubauer, et al. v. Germany)

Between 2018 and 2020, four different constitutional complaints were brought, among others by the Association of Solar Supporters and Friends of the Earth Germany, against the German federal legislator.

The first of these complaints alleged that the legislator had failed to enact appropriate legislation to protect the plaintiffs’ constitutional rights from being threatened by climate change. While that case was still pending, the legislator enacted the federal Climate Change Act, which prescribed emissions reductions for the German state to achieve by the year 2030. Three subsequent complaints challenged the Climate Change Act for setting insufficient greenhouse gas reduction targets.

These four complaints target the legislator. Under German law, ordinary courts do not have the competency to declare federal laws unconstitutional, or to find that the federal legislator has failed to comply with its constitutional obligations. Such declarations may only be made by the Federal Constitutional Court. Therefore, the cases were filed directly with the Federal Constitutional Court.

The plaintiffs argued that their constitutional rights to life, physical integrity, property and the right to choose one’s occupation required the legislator to set stricter greenhouse gas reduction targets.

The Constitutional Court rejected that claim, but instead found the Climate Change Act to be unconstitutional on a different consideration. By postponing too much of the necessary emission reductions to post-2030, the Court found, the legislator had unfairly burdened young generations, making it likely that young people would face severe restrictions of their constitutional freedoms in the future.

Greenpeace Germany

Another challenge was filed by Greenpeace Germany and others against the German federal government in 2018.

This case specifically targeted the failure of the government to fulfill the greenhouse gas reduction targets set out in its own Climate Change Action Plan 2020. As such, defendant in the case is the federal executive rather than the legislator.

Consequently, the case was not filed in the Constitutional Court, but in the Administrative Court of Berlin, which is the court in charge of complaints against the federal government.

While the main focus of the complaint was the failure to meet the Climate Change Action Plan’s targets, the plaintiffs also relied on the government’s duty to protect their fundamental rights from the consequences of climate change.

In its decision of 31 October 2019, the Administrative Court found that the Climate Change Action Plan 2020 stated a policy goal of the government, but did not set binding greenhouse gas emission reduction targets from which individuals could derive any legal rights.

With regard to a potential violation of fundamental rights, the Court found that the emission reductions actually achieved by the government up to this point were not so insufficient as to constitute an obvious neglect of the government’s duty to prevent rights violations. While the Court granted leave to appeal, the applicants decided not to pursue the appeal, but instead focus their attention on other possible judicial challenges to climate-relevant legislation and policies.

Cases against federal legislature or government

Litigation is mostly directed against the federal government, but can also target the government of a state, province or sub-state division.

Cases against provincial / state legislature or government

Litigation is mostly directed against the federal government, but can also target the government of a state, province or sub-state division.

All Cases In This Category

Lho’Imggin et al. v. Her Majesty the Queen

Case Name:                Lho’Imggin et al. v. Her Majesty the Queen (also known as Misdzi Yikh v. Her Majesty the Queen) Jurisdiction:              Canada Type of claim:            Challenge of federal government’s insufficient climate policy Summary of result:  ...

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ENvironnement JEUnesse (ENJEU) v. Canada

Case name:                      ENvironnement JEUnesse (ENJEU) v. Canada (Attorney General) Jurisdiction:                     Canada (Quebec) Type of claim:                  Challenge of federal government’s insufficient climate policy Summary of result:      ...

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La Rose v. Canada

Case name:                     La Rose v. Her Majesty the Queen Jurisdiction:                     Canada Type of claim:                  Challenge of federal government’s insufficient climate policy Summary of result:       Motion to strike dismissed (case allowed to...

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German Klimaklage (Neubauer, et al. v. Germany)

Case name:                      German Klimaklage (Neubauer, et al. v. Germany) Jurisdiction:                     Germany Type of claim:                  Claim against federal legislature or government to enact stricter GHG reduction targets / Challenge of specific...

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VZW Klimaatzaak v. Kingdom of Belgium, et al.

Case name:                      VZW Klimaatzaak v. Kingdom of Belgium, et al. Jurisdiction:                     Belgium Type of claim:                  Claim against federal legislature or government to enact stricter GHG reduction targets Summary of result:      ...

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Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy

Case name:    Plan B Earth and Others v. The Secretary of State for Business, Energy, and Industrial Strategy Jurisdiction:        United Kingdom Type of claim:        Challenge of federal government’s insufficient climate policy Summary of result:    Permission to...

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Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others

Case name:    Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others Jurisdiction:        Switzerland Type of claim:        Challenge of federal government’s insufficient climate policy Summary of result:    The request to adopt...

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Urgenda Foundation v. State of the Netherlands (Ministry of Infrastructure and the Environment)

Case name:    Urgenda Foundation v. State of the Netherlands (Ministry of Infrastructure and the Environment) Jurisdiction:    Netherlands Type of claim:    Claim against federal legislature or government to enact stricter GHG reduction targets Summary of result:   ...

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