Is litigation the new frontier of climate change law?

Posted by: Frances Lawson

It has only created a minor ripple in mainstream news circles, but its contribution to international climate change law could be far greater. Following on from the successful cases in The Netherlands and Pakistan last year, the Federal Administrative Court of Austria has recently ruled on the incompatibility of a third runway at Vienna-Schwechat airport with the country’s national and international climate change commitments.

In reaching its decision, the Austrian court took the uncommon approach of placing environmental considerations on a level playing field with economic ones, and has furthermore taken an all-too-exceptional long-term view of a development’s implications. In a nutshell, the third runway was refused due to the court determining that short-term economic gains from its construction would be outweighed both by increased greenhouse gas emissions, and by the long-term economic effects of the climate change to which the runway’s construction would contribute.

So, could the UK soon see a similar climate change case, relying in part on the UK’s commitments under the Paris Agreement? Is this to be the chosen way to circumvent the political constraints which make implementation of international climate change law such an intractable problem? Certainly, there is going to be an increasing use of climate change litigation in years to come, supported to an extent by the commitments made in Paris at COP21. Particular jurisdictions are likely to lead the way, namely those whose international climate change commitments are enshrined in domestic law, those states with a more progressive judiciary willing to stride down a brave new avenue in legal decision-making, and those where environmental protection features in the country’s constitution. None of these apply to the UK, and as forward-thinking and innovative a jurisdiction as we are in many respects, we are not known for leading the way in environmental law-making. Another relevant factor is our dualist legal system which gives international law limited weight unless it has been expressly incorporated into domestic legislation. Although there are examples in case law of our highest courts placing considerable reliance on the UK’s obligations under international law, even where these obligations have not been so incorporated, such judgments have rarely extended beyond the field of human rights and humanitarian law, and have not yet ventured into the environmental realm. Our senior judiciary remains rather conservative, and Lord Carnwath, who played a decisive role in the 2010 Heathrow judgment and who is arguably the one member of the Supreme Court willing and able to grapple with the novelties of climate change law, is in the latter stages of his career. Furthermore, as much as the UK has its own domestic legislation on climate change in the form of the Climate Change Act 2006, its litigation potential appears to be limited.

Yet, for all our judicial conservatism and reticence towards international law, with two of the UK’s European neighbours leading the way in climate change litigation, it is almost inevitably a matter only of time before such litigation reaches our shores. When it does, it may not succeed immediately – our senior courts may need a little more time to embrace a new litigation frontier – but there will be a case that succeeds, conceivably within the next decade. And when that case comes, it will be a game-changer, and one which we might be advised to start preparing for now.

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