Climate change litigation before EU Courts and the ‘butterfly effect’ by Mario Pagano

A few months before the EU General Court (GC) released its order dismissing the Carvalho case (also known as the People’s climate case), a new climate action for annulment was brought before the same Court on 4 March 2019, namely Sabo (or the EU Biomass case).

In Sabo (still pending before the GC), the applicants are seeking the annulment of the inclusion of ‘forest biomass’ – essentially trees, including, stems, stumps, branches and bark – as a renewable fuel within the ‘new’ Renewable Energy Directive, published on 11 December 2018 (‘the Directive’). The applicants’ claims basically rely on the fact that – according to recent scientific evidences – forest biomass does not seem to be an optimal solution to tackle climate change. This since ‘burning wood for energy puts more carbon in the atmosphere than burning fossil fuels, including coal; and the vast increase in industrial logging which it necessitates destroys the very forest systems that have absorbed carbon from the atmosphere’. In other words, forest biomass fuel is ineffective as, on the one hand, it produces more carbon dioxide than other fossil fuels, while, on the other, it enhances deforestation.

The case has been brought before the EU judiciary under Article 263(4) TFEU by a group of individuals and civil society organisations. These originate from EU as well as from third countries, namely Estonia, France, Ireland, Romania, Slovakia, Sweden, and the US. The applicants argue that the inclusion of ‘forest biomass’ in the Directive breaches the general principles and obligations governing EU environmental and climate change policy enshrined in Article 191 TFEU as well as a number of fundamental rights (FRs) protected under the EU Charter.

In this regard, I want to seize this opportunity to thank the applicants for making publicly available the application file of this case, so to allow legal scholars and all people interested in climate issues to study their reasoning even before the case is decided.

In the sections here below, this post will, first, briefly describe and comment on the FRs arguments advanced by the applicants by comparing the reasoning adopted in the application file (AF) in Sabo with the one that the GC used in previous environmental and climate cases; while, in the final part, a few personal concluding remarks will be put forward.

FRs and the ‘butterfly effect’

In their AF, the plaintiffs hold that – by encouraging intensive forest harvesting – the Directive breaches (or will certainly breach in the future) a number of FRs, e.g. the right to health care; the right to private and family life; the right to education; the freedom to manifest religion.

The applicants clarify that some of these violations are not ‘present’, meaning that some of them have not occurred yet. However, given that ‘this challenge must be brought within two months of the publication of the Directive, the applicants must look forward and anticipate the violations of their rights that the Directive itself will cause, based on the harm that has occurred as a result of the predecessor Directive’ (ndr, RED I).

Just to give a few examples, one of the Slovakian plaintiffs describes the choice he has made to raise his family in a region ‘where he can access the forests to which he has a deep personal connection, specifically so that he can pass on this connection to his sons. […] The logging threat to the forests where he lives represents an infringement on the private sphere of [his] family life, in breach of Article 7. For the same reason, his right to ensure the education and teaching of his children in conformity with his philosophical convictions has been infringed, in breach of Article 14(3) of the Charter’.

Another applicant from the US describes how ‘hunting in the woods he owns is an intrinsic part of his family life, and has been for over 100 years […]. The logging damage to surrounding woodland has had a knock-on effect on his own property, reducing the extent to which it supports the small mammals he and his family hunt, and also their ability to access it […]. This is an infringement of his private family life, in breach of Article 7’.

To support such claims, the plaintiffs rely also on the Codorniu case law, where ‘the applicant established individual concern because it had an individual right (a trademark) that was adversely affected by the legislative act (notwithstanding the act being of general application)’. Such an argument was already used by the plaintiffs in Carvalho, where the GC simply responded that Codorniu ‘concerned the loss of a specific acquired right, namely the right to use the word ‘crémant’ in a registered graphic mark. In the present case, the applicants have not claimed the loss of a specific acquired right’.

This answer of the Court is quite preoccupying, as it seems to subject access to justice to the loss of specific ‘acquired rights’. These are rights not originally owned by their holders, which are gained later and sometimes as a result of some action on the part of the right holder. Conversely, FRs are traditionally universal and – most importantly – not acquired but simply recognised by the Law to any human being for the simple reason of coming into existence.

This is why the Court’s response in Carvalho on the reference to Codorniu triggers the following question: what if there is no loss of a specific ‘acquired right’ but rather the violation of an individual’s ‘originary’ FR?

Strict causation

Always in Carvalho, the GC stressed the importance of establishing a clear link between the challenged measure and the alleged violation of the FRs of the applicants. Indeed, the EU judiciary held that ‘the claim that […] an act infringes those rules or rights is not sufficient in itself to establish that the action brought by an individual is admissible, without running the risk of rendering the requirements of the fourth paragraph of Article 263 TFEU meaningless, as long as that alleged infringement does not distinguish the applicant individually just as in the case of the addressee’. In other words, the GC clearly dismissed any ‘Urgenda-style’ reasoning and maintained that climate change may certainly affect individuals’ FRs. However, plaintiffs – in actions for annulment under Article 263(4) TFEU – must be directly and individually concerned by the challenged measure. As a consequence, the GC rejected any ‘butterfly effect’ that EU law may have on individuals’ FRs (even outside the EU).

To simplify: the EU sets a given renewable energy target – EU Member States (MS) have to comply with such target (with very little or no discretion on the criteria that biomass fuel must comply with) – MS trade pellets (MS here clearly have more discretion) – because of the increase in the pellets market, EU and third countries’ companies are pushed to cut down more trees and produce more pellets – cutting down more trees affects the FRs of a number of individuals.

In the light of this sequence of causal links, can we really say that the Directive ‘directly’ breaches the FRs of the applicants in the Sabo case? Is it really the Directive requiring to cut down those specific trees in the EU or in the US in the areas where some of the applicants live or is that a trade policy choice of the EU MS (since we are still talking about a Directive)?

I understand that the answer to these questions can be highly controversial. Nevertheless, considering how strict the Court of Justice (CJEU)’s Plaumann test is, claims based on FRs violations do not seem the most suitable ones to circumvent the Court’s rigidity on admissibility.

This since, in my view, the CJEU traditionally requires private applicants to prove a severely strict causation, while the plaintiffs in Sabo are trying to annul an EU measure based on the so-called ‘butterfly effect’ (‘when a butterfly flaps its wings in Chicago, a tornado occurs in Tokyo’). The whole reasoning resembles another argument – circulating in criminal law classes – according to which the parents of a serial killer should be held equally responsible for the bad education of their son. They surely have a responsibility, but is it a ‘legal’ one?

Personal remarks

Unlike for Urgenda and other famous climate change cases (where the ‘core’ of the controversy was represented by the intensity of the judicial review), the (first) real issue for climate change litigation before EU Courts concerns the admissibility of the case.

I personally find frustrating and – at the same time – courageous, that climate litigants are de facto ‘required’ to bring far-fetched interpretations of FRs claims so to prove that they are directly and individually concerned by the challenged EU measure. But this is not their fault. A judicial system which really intends to extend its protection also to the environment, should not apply the same conditions – conceived for human beings – also to the environment. This will never meet them.

In addition to the question of admissibility, even the intensity of the Court’s judicial review must be carefully considered. Indeed, when called upon to review EU environmental measures vis-à-vis the principle of precaution, the Court has traditionally showed judicial restraint and limited its review to the manifest appropriateness of the contested measures. This is why, even in the case the action will be deemed admissible (and this would be already a huge success), the (potential) scrutiny of the measure could be quite disappointing for the applicants.

In conclusion, apart from the arguments on FRs, there are two elements in Sabo on which I would like to draw the attention of the reader. The first one concerns the clear reference made by the applicants to the ACCC findings on (in)compliance of the EU with the Aarhus Convention (more info on the ‘Aarhus v. EU’ saga here). After Mellifera, the GC now has another opportunity to reconsider its position with regard to the findings of the international compliance body established under the Aarhus Convention. Moreover, unlike in Mellifera, in Sabo the Court will deal with an EU measure adopted after the findings were released (on 17 March 2017). A detail which may lead to a different reasoning by the GC.

The second element concerns the alternative use of the preliminary reference procedure. Although – as AG Jacobs held in his opinion in the UPA case – I also share the view that it is time to update the Plaumann test, the Court clearly is still reluctant to abandon its traditional interpretation of the ‘individual concern’ requirement. For this reason, I do not agree with the arguments put forward by the plaintiffs in Sabo, in support of the claim that the preliminary reference procedure would be an impracticable alternative to the direct action. Climate policy measures entail a vast number of implementing acts at national level, which could be challenged before national courts which may then refer the question to the CJEU for a preliminary ruling.

As AG Jacobs stated in 2002, the procedure laid down under Article 267 TFEU is not immune to shortcomings, but if the goal is to avoid future breaches of individuals’ FRs and decrease the amount of carbon dioxide in the atmosphere, then all solutions must be tried.

undefined Mario Pagano is a PhD Researcher in EU environmental law at the European University Institute of Florence. His research seeks to explore by what judicial and extra-judicial means environmental NGOs are trying to overcome the Plaumann test in EU environmental litigation. Before starting his PhD, Mario worked in Brussels as a trainee at DG ENV of the European Commission. 



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