On Challenging the Disparate Impacts of Climate Change through European Discrimination Law by Refia Kaya

What do we mean by “disparate impacts of climate change”?

The harmful impacts of climate change do not affect everyone equally. Some individuals are/will be more affected by others because of their characteristics, socio-economic situation or occupations, which make them particularly vulnerable to the harmful impacts of climate change-related state action or inaction. This phenomenon can be called the disparate impacts of climate change.

There could be at least two types of disparate impacts of climate change. First, climate change-related natural events could have disparate impacts on individuals if the state takes no action. For instance, individuals older than 65 years are the most vulnerable age groups to climate‐change‐related heatwaves. After the 2003 heatwave which hit France, 90 percent of the 14,800 victims were older than 65 years old. Another example is the most vulnerable birth cohort to climate change is young generations because many of the climate change-related problems will become evident in the near future. Given their larger expected life span, young generations become the victim of unsustainable environmental policies.

Second, disparate impacts of climate change can appear when the action of the state to fight against climate change, for example, by imposing taxes, disadvantage certain vulnerable groups, as farmers. This kind of disparate impacts, although being very crucial, are not analysed in this post among the referred climate change-related cases. Yet, discrimination law could also be useful in this type of disparate impacts.

Can discrimination law be used to challenge the disparate impacts of climate change stemming from the State’s climate inaction?

Discrimination law has been a promising and fast-evolving legal field to address undesirable inequalities. Recent climate cases, the environmental justice literature and developments both in the case law and in the theory of discrimination law inspire us in addressing the disparate impacts of climate change as discrimination issues. However, can discrimination law be used in such a context? My hypothesis is that the main limitations of using discrimination law to challenge climate change-related inequalities can come from at least five fronts.

First, the grounds on which claimants are protected may not include certain characteristics. For example, although age is a protected ground under many legislations, being a member of a particular generation is not. Second, discrimination law may be difficult to apply to environmental matters if we don’t manage to frame them as, e.g. public goods and services issues or housing issues. Third, evidence of discriminatory intent may be an especially challenging requirement if the given legislation requires proof of intent for indirect discrimination claims. Fourth, comparators may be harder to identify in environmental cases than in other cases. Fifth, requiring a discriminatory action may be a significant obstacle considering that the impacts of climate change often stem from inaction.

To overcome these challenges, the evolutions in the theory and practice of discrimination law should be well analysed and practitioners should be creative. It is argued in academic literature, in detail, that the extension in the scope of discrimination law made by the case law could help us to deal with these limitations.

Moreover, to my mind, using discrimination law in climate cases has an added value in the European legal system. The first benefit would be the flexibility of discrimination law with regard to certain practical issues. For example, proving causation between the wrongful act and negative impacts is easier under the current discrimination law practice in comparison to other legal areas, as tort law, since statistical evidence is widely accepted under European discrimination law to prove the causation.

The second benefit is a social one. A strategy based on discrimination law could represent the nature of the climate change-related problems in a correct manner. Climate cases that are framed in the language of equality may be a voice to most vulnerable people as young and future generations, the elderly, women, minorities and low-income populations.

Is discrimination law, currently, used to challenge the disparate impacts of climate change stemming from the State’s climate inaction?

There are numerous environmental cases across the globe, which include climate change-related issues, brought by private individuals where discrimination law has been invoked. Discrimination on the grounds of race, gender, occupation and age are the most common types of the current environmental discrimination cases. Given that climate change is a widescale issue which does not only raise individual interest, public interest cases could be an effective way to make the voices of vulnerable groups heard. There are a few climate change-related “public interest” cases across the globe and in Europe. Some of these cases have invoked discrimination law.

In Europe, in the Dutch Urgenda case against climate change, the Hague Court of Appeal recognized the particular disadvantage of young generations by stating that “...it is without a doubt plausible that the current generation of Dutch nationals, in particular but not limited to the younger individuals in this group, will have to deal with the adverse effects of climate change in their lifetime if global emissions of greenhouse gases are not adequately reduced.” Plaintiffs did not claim accountability of the State against the non-discrimination principle, yet the disparate, and therefore discriminatory, effects of climate change has been legally documented in a European climate change case.

The People’s Climate Case before the CJEU framed the vulnerability of young generations directly as an equality and non-discrimination problem. The plaintiffs complained that “…principle of equal treatment should clearly be applicable in respect of equality between children and young people, and older people, and requires broader intergenerational justice.”

To conclude, it is important that the legal practitioners are open enough to assess empirical data, global commitments and the voices of all those vulnerable people who are worried about the possible effects of climate change and use various legal avenues. To address the disparate impacts of climate change, discrimination law appears as a promising alternative legal avenue.

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Refia Kaya, LL.M., is a Doctoral Research Fellow in Law, University of Louvain Hoover Chair. She is a core researcher of the Taking Age Discrimination Seriously (TADS) project funded by the Czech Academy of Sciences. Her research topics are discrimination law and environmental law.

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