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EU's top court tosses farmers' challenge to emissions target

07 April 2021 Cristina Brooks

Europe's highest court denied an appeal by farmers who said the EU Parliament and Council set a weak GHG emissions target, slowing momentum behind similar European climate cases.

On 25 March, European Court of Justice dismissed the farmers' appeal, affirming a 2019 finding by the General Court of the EU that the plaintiffs had no legal standing, and ordering each side to cover their own legal costs.

The 36 people who filed the 2018 court case, called "The People's Climate Case," hailed from a Swedish indigenous youth group farming reindeer as well as 10 families from Europe, Fiji, and Kenya with businesses in agriculture and tourism. The plaintiffs and their businesses were affected by droughts, flooding, melting snow, or heatwaves "caused or intensified by climate change," according to the judgment.

The petitioners argued the EU's Climate Package of 2018, which pledged to cut its GHG emissions by 40% compared with 1990 levels by 2030 to fulfill Paris Agreement pledges, was "manifestly inadequate." Instead of financial damages, they asked the court to order annulment of the package and adoption of one that deepened emissions cuts to at least 50% to 60%.

Climate change hurts Europe's farmers, according to a study published in the journal Environmental Research Letters last month. It found that a European heatwave and drought in 2018 caused grain production to drop 8%.

But the court said that whether or not the people's fundamental rights had been violated, they had no right to bring their action under Article 263(4) of the Treaty on the Functioning of the European Union (TFEU), which sets rules on who can appear in court.

The court's judgment confirms existing case law on how standing is determined under the article, known as the Plaumann test, which the plaintiffs sought to change. "The inroad may have been topical, the outcome is old wine in a new bottle," according to a blog on the judgment from law firm Allen & Overy.

NGO coalition Climate Action Network (CAN), which submitted documents backing the plaintiffs in the European General Court, commented on the matter. "In its decision, the court expresses its fear that if they accept the People's case, many people might bring similar cases to challenge the EU on environmental grounds, the fear of 'actio popularis,'" CAN Europe EU Climate Governance and Human Rights Policy Coordinator Harriet Mackaill-Hill told IHS Markit.

Upholding the Plaumann test, the judgment is likely to discourage similar plaintiffs if laws remain the same. "Concretely, it means the EU citizens and NGOs cannot challenge acts that are in breach of environmental law and that cause harm to human beings and plants," she said.

The People's case is not likely to directly influence EU policy on emissions targets. "As the case was dismissed on admissibility grounds only, and not heard on merits, there is no real significance in terms of policy. However, this dismissal on procedural grounds only strongly highlights the problem of access to justice in the EU," said Mackaill-Hill.

NGOs fight for greater court access

The People's case bucks the trend of European NGOs and citizens obtaining state-level court rulings that might strengthen climate laws.

The judgment that raised emissions targets in the Netherlands in 2019, dubbed the "Urgenda case" after the petitioning green group, and the judgement enforcing emissions laws in France in February, dubbed the "Case of the century," are notable examples. Another case currently awaiting defense filings in the European Court of Human Rights (ECHR) was launched by six Portuguese youths in 2017 over the weak emissions cuts by several states they alleged fueled that year's deadly wildfires in Portugal.

These cases are gradually building the body of law that acknowledges that states are liable for citizens' climate risk. "National courts and other supranational courts like the [ECHR] take the claims of people hit by the climate crisis seriously and do not lose time with procedural rules, but focus on discussing the climate crisis," said Mackaill-Hill.

"In this regard, we believe that the tidal wave of national and supranational courts taking the claim of citizens on the governments' climate inaction seriously is far more important than the EU court's narrow interpretation of procedural rules," she said.

The People's case arose because the EU failed to ensure access to the courts when its own environmental laws are violated, Ellen Baker, a strategic communications officer with legal charity ClientEarth, told IHS Markit.

Current EU law allows companies to challenge court decisions that affect their economic and financial interests, but not people or NGOs, which means it is in breach of an international treaty called the Aarhus Convention, according to ClientEarth. Environmental NGOs have campaigned for legislative revisions to get the EU to comply and remain critical of revisions proposed by the commission.

"The EU is currently revising the Aarhus regulation, which is their key chance to make the first important step to remedy the issue. While this revision will not ensure that citizens can challenge EU legislation, as was attempted in the People's case, it will give the public the opportunity to ensure that the EU administration respects environmental law," said Baker.

"This will bring us a long way in the right direction and will be absolutely necessary to ensure that all the new commitments of the EU Green Deal are respected in practice, for the benefit of people and the planet," she added.

EU to raise emissions targets anyway

While the People's case was still ongoing in October 2020, the EU Council reached a partial general agreement with member states on an approach to its proposed Climate Law, first put forward in 2019, which rolls out a stronger EU GHG reduction target of at least 55% by 2030.

The related bill is due to be agreed this month, but states and the European Commission disagreed over the precise target, and what counts as progress towards the target, in a round of negotiations in March.

Despite the EU raising its target, further litigation is a possibility. "It is indeed the case that the EU will enshrine a new climate goal of 55% or higher into law soon. The European Parliament is still in negotiations with the member states on this, insisting on even 60%. However, it will remain important to hold the EU institutions to these targets, including by way of legal actions," said Baker.

Germany-based research group Climate Action Tracker argues that the EU's proposed goal of 55% is still incompatible with the Paris Agreement, according to its climate profile of the EU.

However, raising the target to 65% "would make the EU the first region with commitments compatible with the Paris Agreement."

Posted 07 April 2021 by Cristina Brooks, Senior Journalist, Climate & Sustainability, IHS Markit

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