Frank Elderson: When you need change to preserve continuity: climate emergency and the role of law
Speech by Frank Elderson, Member of the Executive Board of the ECB and
Vice-Chair of the Supervisory Board of the ECB, ECB Legal Conference
2021 Frankfurt am Main, 25 November 2021 Introduction
It is
with great pleasure that I would like to welcome you all to this
year’s ECB legal conference. Our annual legal conferences have always
focused on the most pertinent topics in the field, bringing together
the most distinguished legal experts and academics. Today’s event is
no different.
Being a trained lawyer myself, I am well aware
of the topicality of the issues that will be discussed here today and
tomorrow from a legal point of view. However, their relevance goes far
beyond law: these topics clearly have a wider impact on society.
Later, I will introduce the speakers of today’s first panel,
which will focus on the future of legal pluralism and the dialogue
between courts. First, though, I would like to use this opportunity to
share my thoughts on a topic close to my heart, where the role of
courts has proven crucial and where the dialogue and cooperation among
courts is intensifying. This conference deals with continuity and
change, so I have decided to focus on the change that is going to be
the single defining issue for humankind in this generation: climate
change. In particular I am going to talk about a specific aspect of
the relationship between climate change and the legal system: climate
change litigation. I would like to share some of my thoughts on how
climate-related human rights – which I will refer to as climate rights
– may be seen as branches stemming from the tree of fundamental
rights, and how the community of lawyers has specific responsibilities
to uphold these rights. Against this background I would then like to
consider the role of courts and highlight their importance in the
European context in general and for the ECB in particular. From
fundamental rights to climate rights and the role of lawyers
The law has always mirrored developments in society. And vice
versa, the law has a profound impact on society, in that it governs
many of our daily actions and interactions.
A very important
historical example is the emergence of human rights after the Second
World War, most notably the adoption of the Universal Declaration of
Human Rights and, in Europe, the European Convention on Human Rights,
both of which are seen as direct responses to the atrocities committed
during the war. The European Convention’s impact and importance today
is thanks in particular to the work of courts – first and foremost the
European Court of Human Rights. Alongside other courts, it played a
crucial role in developing human rights and fundamental principles
such as proportionality, which is another topic you will delve into
this afternoon. Human rights and fundamental principles are two
concepts that are closely intertwined and it was no coincidence that
they gained ground simultaneously after the war. And proportionality
and its implications have become so topical that we decided to
dedicate a separate panel to the subject this morning.
Coming
back to climate change, I would like to echo the words of Mary
Robinson, the former United Nations High Commissioner for Human
Rights, who defined climate change as the “greatest human rights issue
of our time”[1].
I would like to use this opportunity to
remind all of you, and the community of lawyers at large, of the
central role that lawyers can play in the climate change field.
Remember that how the law is interpreted and applied is as important
as how it is written, and this is relevant each step of the way – from
academic writing to judicial proceedings. Lawyers, as a community,
share a huge responsibility towards future generations and the world
as a whole. The role of courts
Court proceedings are
inevitably going to gain prominence in the climate change field.
Individuals and non-governmental organisations have been bringing
cases against polluting companies, and increasingly against
governments, for quite some time already. Climate-related litigation,
which has been defined by the United Nations Environment Programme as
“cases that raise material issues of law or fact relating to climate
change mitigation, adaptation, or the science of climate change”[2],
is not a new phenomenon.
This year, however, we have seen an
increase in the number of impactful judgments in climate-related cases
in many different jurisdictions. Maybe in 50 years we will look back
at those rulings in the same way we today look at the first seminal
judgements on human rights after the war.
The cases I want to
briefly mention to you today were categorised and described by the
Network for Greening the Financial System in a recently published
technical document. [3] These cases are important because they show
that the attitude of courts is changing, and there is more willingness
on their part to follow the plaintiffs’ arguments and to hold
governments and companies accountable for not taking sufficient action
to combat climate change. The cases are informed by highly accurate
scientific evidence on the seriousness of climate-related developments
that has been published in recent years, and show an increasing
willingness of courts to recognise an individual right to the
environment for future generations.
In the Urgenda case, the
Dutch Supreme Court, citing among other things the European Convention
on Human Rights, ordered the Dutch Government to reduce greenhouse gas
emissions by at least 25% by the end of 2020 compared with 1990
levels. The case has received widespread attention because of the way
it established a link between human rights and what was considered
insufficient action to combat climate change.
Similar
arguments were brought forward in the Irish Climate Case. In this one,
the Irish Supreme Court examined whether the Irish National Mitigation
Plan complied with the Irish Climate Act. The Supreme Court found that
it did not, as the plan had failed to specify in enough detail how
Ireland could transition to a low-carbon, climate-resilient and
environmentally sustainable economy by the end of 2050.
Another prominent case earlier this year involved the German
Constitutional Court. It decided that the provisions of the German
Federal Climate Change Act governing national climate targets and the
annual emission amounts allowed until 2030 were incompatible with
fundamental rights. In particular, the court found that the targets
did not sufficiently specify emission reductions from 2031 onwards and
were thus disproportionally violating the freedoms of younger
generations as protected by the German constitution.
But it
is not only cases against governments. Plaintiffs are also
increasingly suing corporations. One of the most prominent recent
examples was a case against the oil company Shell, in which a Dutch
court in the first instance found that Shell had violated its duty of
care and had to cut its greenhouse gas emissions in the entire supply
chain, throughout its worldwide operations, by 45% by 2030. Another
case that has received considerable attention is currently pending
before German courts: a Peruvian farmer is suing the utilities company
RWE, alleging that their emissions are partially responsible for the
dangerously high water levels in his area.
As for central
banks, it is worth mentioning that the first climate case against a
central bank is currently pending before courts in Belgium, and the
hearing took place last week. We will know in about a month whether
this case will be referred to the European Court of Justice.
These cases show that courts are giving more weight and
relevance to the protection of the right to a clean environment, and
they are finding legal bases for such climate-related claims.
First of all, courts are increasingly relying on the human
rights law that has been developed over the last 70 years. For
instance, in the Urgenda case, the court found a violation of both
Article 2 of the European Convention, which protects the right to
life, and Article 8, which protects the right to respect for private
life. From these core provisions, the Dutch Supreme Court derived an
obligation of the State towards the residents of the Netherlands to
take adequate measures to reduce greenhouse gas emissions.
Second, courts are also ready to use well-developed concepts
of civil and tort law, such as the duty of care, in innovative ways.
For example, the first instance decision against Shell largely relied
on Shell’s duty of care under Dutch law.
Third, the
protection of the environment as a global right that transcends
borders leads to the assertion of claims with an extraterritorial
nature. This is exemplified by the two cases against the companies I
mentioned earlier. In the case of Shell, the court of first instance
held that Shell is also responsible for emissions from its
subsidiaries and supply chain partners around the world. And in the
case of RWE, the plaintiff is trying to hold the company responsible
for the impact of its actions on an area that is thousands of
kilometres away, on another continent. As I said, there is no verdict
in the RWE case yet, but the fact that such arguments are increasingly
being made is proof of the understanding that climate change, just
like human rights, has no territorial limits. [4] This means that
courts will also have to cooperate internationally, as their decisions
will have a cross-border reach.
These cases are also
testament to the importance of cooperation and dialogue. For instance,
the German Constitutional Court made explicit reference to the
arguments developed in the Urgenda case and the case before the Irish
Supreme Court. This is a good example of how cooperation helps each
judge further refine the arguments and apply climate rights to
different jurisdictions, applicable laws and factual settings. The
interaction with EU law
Climate litigation is a worldwide
phenomenon. A Columbia Law School database keeping track of relevant
cases across the globe currently contains close to 500 entries of
lawsuits against governments, corporations and individuals outside the
United States. As you may have noticed, all of the cases I have
mentioned were decided by courts in the EU. The openness of courts in
the EU to this new stream of cases raises two questions. First, how
could different emerging judicial practices be reconciled at EU level
in the future? And second, what is the likelihood of similar cases
being more directly based on EU law?
Earlier this year, when
individuals were arguing that the EU’s existing targets to reduce
domestic greenhouse gas emissions were insufficient, the Court of
Justice of the European Union (CJEU) dismissed the action for
annulment due to a lack of standing. [5] However, it is very likely
that plaintiffs will continue to rely on comparable arguments before
national constitutional courts, which may then bring such questions to
the attention of the CJEU through a request for a preliminary ruling.
This may bring questions into EU law that would otherwise not have
been admissible as happened in the OMT case[6].
Plaintiffs
may even challenge the EU institutions directly and argue that the EU
itself is not doing enough to address climate change, for example
because its greenhouse gas reduction targets are not ambitious enough
or because the institutions are not taking sufficiently effective
action to comply with them. This is not surprising, as one of the key
objectives of the EU is to improve the quality of the environment.
After all, the European project was born out of the post-war wish for
peace, and without peace you cannot enjoy human rights or preserve the
environment.
Protecting the environment and tackling climate
change are global challenges. Courts in the EU need to be aware that,
while they are independent, they have a collective role and
responsibility. I would even go so far as to say that they could be
seen as having a mandate to preserve fundamental rights – including
climate rights. Cooperation among courts is key to marrying their
individual independence with their collective responsibilities.
In the European context it is equally necessary to preserve
the institutional framework which enables such cooperation. The EU’s
arrangements for a multi-layered judicial system are a precondition
for courts to deliver on this collective responsibility and mandate,
and both the European Court of Justice’s exclusive power to interpret
the Treaty, and the supremacy of EU law over national law, are crucial
elements. Beyond the courts
But while the EU and its courts
can make significant contributions to the fight against climate change
and to supporting climate rights, they have their limits.
As
I have said many times before, the climate emergency is a global issue
that requires urgent responses and a global approach. Fortunately, we
are seeing civil society play a very active role by raising awareness
of this issue around the globe. As a result, many governments are
adopting more ambitious climate laws that aim to curb emissions. And
while governments and parliaments have the primary responsibility to
act on climate change, central banks and supervisors have also
increasingly shown their commitment to contribute within their mandate
to addressing the ongoing climate crisis. [7] As you may know, two
weeks ago the ECB pledged to contribute, within all our fields of
competence and responsibility, to decisive action by policymakers to
implement the Paris Agreement and mitigate the consequences of climate
change. [8] As examples of concrete measures we will take, we
presented a climate change action plan for our monetary policy and
have set expectations for the management of climate-related and
environmental risks in our banking supervision.
Climate
change has profound implications for price stability, financial
stability and the soundness of banks. It therefore falls squarely
within our mandate to take the implications of climate change into
account in all our tasks and responsibilities, in line with the EU’s
climate goals and objectives. Conclusion
Just as the
financial risk implications of climate change place it squarely within
the mandates of central banks and supervisors, the fact that climate
rights branch off from the tree of fundamental rights places them
squarely within the mandates of the courts. I am confident that courts
around the world will take inspiration from each other to ensure that
climate rights – and I would say environmental rights, too – are being
served by our legal system in the same way as any other human right.
In this context, I trust that everyone will continue working together
– and within their mandate – to develop solid legal foundations to
address the challenges of climate change.
Let me end by
quoting the Greek philosopher Heraclitus, who said that “big results
require big ambitions”. So all of us here, in both our professional
and our private lives, must take action to preserve our planet for
future generations.
Thank you very much for your attention.