From Urgenda to Klimaatzaak

On November 30, 2023, the Brussels Court of Appeal handed down its ruling in VZW Klimaatzaak v. Kingdom of Belgium & Others, commonly known as “the Belgian climate case.” The ruling is clear: Belgian authorities failed to participate adequately in the global effort to curb global warming, and they must imperatively reduce their emissions. Partially reversing the first instance judgment, the Court of Appeal not only found in favor of the plaintiffs but also imposed binding minimum greenhouse gas (GHG) emissions reduction targets to be achieved by 2030, thereby following in the footsteps of the Dutch Urgenda case.

Subscribing fully to Matthias Petel and Norman Vander Putten’s sharp analysis of how this litigation saga embodies tensions between climate justice and the separation of powers, we wish to highlight three remarkable aspects of the case. After quickly summarizing the first instance judgment and last week’s ruling, we begin by touching on the elephant in the (court)room: the articulation of the available scientific evidence with the limits of courts’ power of review and injunction. Then, we say a word about the Brussels Court of Appeal’s thorough application of European human rights law. We finish by deploring, as did the Court, Belgian federalism’s inefficiencies.

Birth of the Case and Klimaatzaak’s First Instance Win

In 2015, the non-profit organization Klimaatzaak (“climate case” in Dutch), together with about 60,000 private individuals, filed a lawsuit against Belgian public authorities for their insufficient climate action. Because of the complex distribution of competences among public authorities in Belgium, the case involved four public defendants: the Belgian federal government as well as the governments of the regions of Flanders, Wallonia, and Brussels. A third-party intervention request was also introduced on behalf of more than a hundred trees with long lifespans, whose “livelihood” was said to be negatively impacted by these governments’ inaction. In their final written submissions, the plaintiffs sought an injunction directing the governments to reduce GHG emissions by 48% or at least 42% by 2025 and by 65% or at least 55% by 2030.

In so very typically Belgian fashion, the case was delayed by a few years because of a conflict relating to the proper language to be used in the procedure (French or Dutch), which went all the way to Belgium’s highest judicial organ, the Court of Cassation, only for the original language choice to be confirmed (French). Eventually, on June 17, 2021, the Tribunal of First Instance of Brussels ruled in partial favor of the plaintiffs. It found the action admissible both with regard to Klimaatzaak as an environmental non-governmental organization and with regard to the tens of thousands of individual co-plaintiffs, pointing out that they all have a personal, direct interest in the claim brought. However, the arboreal third-party intervention request was declared inadmissible, seeing as Belgian law, as it stood and still stands, does not grant legal personality to nature.

The Tribunal of First Instance proceeded to find all four governments in breach of Article 2 (right to life) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights as well as Article 1382 and 1383 of the (former) Belgian Civil Code (extra-contractual liability) by failing to take meaningful climate action. However, the Tribunal refused to impose binding GHG emissions reduction targets, arguing that imposing such targets would breach the principle of the separation of powers. Victory for Klimaatzaak, thus, but a Pyrrhic one.

Another Win on Appeal for Klimaatzaak, Wallonia off the Hook

Both plaintiffs and defendants lodged an appeal against the 2021 judgment. Last week, the Brussels Court of Appeal found once again that three of the four defendants had failed to take sufficient climate action and, as a result, that they had breached Articles 2 and 8 of the European Convention on Human Rights and Article 1382 and 1383 of the former Belgian Civil Code. Still, a striking difference with the first instance ruling is the government of Wallonia’s remarkable lack of condemnation. The Court considered that Wallonia’s compliance with its obligations to date, having met its past targets and enshrined the 55% reduction target for 2030 in a draft decree (to be adopted shortly), meant that this Region did in fact comply with its obligations under Belgian, European, and international law.

Additionally, and contrary to what was decided in first instance, the Court of Appeal imposed a binding minimum emissions reduction target on the defendant in the form of a quantified injunction. The federal government and the governments of the regions of Flanders and Brussels were ordered to reduce their GHG emissions by at least 55% compared to 1990 levels by 2030 at the latest. This is less than the 61% reduction requested by the plaintiffs, but more than the 47% reduction that Belgium is currently required to achieve under the “FIT for 55” program, a package of measures by the European Union designed to reduce the Union’s GHG emissions by 55% by 2030 (see Annex 1 of Regulation 2018/842, as most recently modified by Regulation 2023/857).

To reach this decision, the Court of Appeal formulated a number of noteworthy considerations relating to the scientific consensus on anthropogenic climate change, the international and European climate change regime, and the “translation” of this regime into the Belgian legal system. In the remainder of this brief post, we address three notable aspects of the ruling: the articulation of the available scientific evidence with the need to respect the principle of the separation of powers in imposing binding targets; the detailed application of the European Convention of Human Rights; and the need for proper cooperation between public authorities in a federal state.

Scientific Evidence, Separation of Powers, and Binding GHG Emissions Reduction Targets

Much of the ruling consists of a long-winded justification of why the 55% target eventually imposed by the Court is not some sort of judicial overreach, as was argued extensively by the defendants, but in fact mandated by Belgian, European, and international law as well as the available scientific evidence. Instead of prohibiting the imposition of a binding target, the principle of the separation of powers served as one of the factors used by the Court to determine the exact minimal amount of GHG emissions reduction defendants should be bound to comply with. This is where the ruling strays furthest away from the first instance judgment, although not as much as the plaintiffs would have hoped. They had contended that the most equitable assessment should take into account Belgium’s historical responsibility in the global climate change crisis. Relying notably on a study of the Grantham Institute entitled “Belgium’s national emission pathway in the context of the global remaining carbon budget,” the plaintiffs had asked the Court to impose an 81% reduction target; alternatively, they had asked for a 61% target for 2030 compared to 1990 levels based on another approach called “grandfathering,” according to which prior emissions increase future emission entitlements. The Court insisted on limiting its power of review and injunction to the “minimum minimorum” reduction threshold, and concluded it consists of the 55% of GHG emissions reduction eventually ordered.

Strasbourg s’invite à Bruxelles

Echoing the first instance ruling, the Court of Appeal found that three of the four defendants had breached Articles 2 and 8 of the European Convention on Human Rights by failing to take sufficient climate action. The seventy-eight paragraphs the Court spent on this issue provide a telling illustration of the percolation of Strasbourg case law down the legal systems of the member states of the Council of Europe. Of particular interest to Strasbourg observers will be the Court’s detailed analysis of states’ positive obligations under Article 2, which, combined with all the available scientific evidence, required Belgian public authorities to take appropriate measures between 2013 and 2020 to reach a minimum GHG emissions threshold of 25%, revised to 30% by 2018 at the latest, and, between 2020 and the day of the ruling, to take appropriate measures to reach a minimum GHG emissions threshold of 55%. Conversely, we can deplore the somewhat abrupt transfer of the Court’s conclusions under Article 2 of the Convention to the analysis of Article 8. These considerations are all the more significant in light of the several climate change cases currently pending before the European Court of Human Rights. We wonder what impact, if any, the Brussels Court’s application of the European Convention will have on the European Court of Human Rights’ delicate balancing exercise in these cases.

Oops They Did(n’t) Do It Again: Belgian Federalism or Hide and Seek à la belge

The plaintiffs levelled a two-fold criticism at the four defendants. They alleged that the defendants not only fell short of doing their part in the global efforts to mitigate the climate crisis by taking appropriate measures to limit GHG emissions, but also failed to cooperate “healthily and loyally” to develop a proper system of climate governance at the national level. This second point of criticism has to do with the peculiar architecture of the Belgian state. Since Belgium’s three communities and three regions have legislative and executive powers on an equal footing with those of the federal government in the subject matters attributed to them throughout a series of constitutional reforms since the 1970s, these various entities are often compelled to collaborate in order to regulate cross-cutting issues somewhat coherently.

Climate change is a textbook example of such an issue, which is why both the federal government and the governments of Belgium’s three regions were defendants in this case. Already in first instance, the defendants had attempted to justify (part of) their inaction by pointing at the complexity of the Belgian legal system and their dependence on (difficult) negotiations among various public authorities. The Tribunal of First Instance was not impressed and recalled that “the federal structure does not exempt the federal State or the federated entities from their obligations, whether domestic, European or international” (page 74 of the Judgment of June 17, 2021 (translated from the original French)).

Similarly, the Court of Appeal strongly opposed all attempts by the defendants to shy away from their responsibilities by blaming another entity or relying on the complexity of the distribution of competences among public authorities in Belgium. It found that Belgian authorities had clearly failed to cooperate loyally on this issue. This is convincing, though one is left wondering about the ambiguous status of the government of Wallonia: although spared a condemnation in light of the efficacious measures it adopted and objectives it set itself for 2030, Wallonia remains responsible for cooperating loyally with other entities, and thus also jointly responsible (if not sanctioned) for their failure to do so (see esp. para. 248 of the ruling).

Concluding Remarks: Stellar Example of Judicial Craftmanship

All in all, the Brussels Court of Appeal’s ruling is sure to make waves in Belgium and beyond—Flemish Environment Minister Zuhal Demir already hinted she would refer the case to the Belgian Court of Cassation. Building on the Urgenda momentum, its unambiguous condemnation of Belgian authorities’ inaction in the face of the climate crisis leaves little to the imagination. The issuance of a quantified injunction should give hope to climate action proponents. For the most skeptical among them, the Court’s intention to review the measures taken by the defendants to comply with the ruling in a year’s time is a reassuring sign of the actual possibility of holding public power to account. To conclude our brief overview of this significant milestone for the climate action movement, we cannot but applaud the quality of the Court’s drafting. Although more than 160 pages long, the ruling is exemplary in its structure, legibility, and overall clarity. Extensive references to (almost exclusively French-speaking) scholarship and (mostly German) foreign case law are sure to please the Court’s readers, and for good cause. Should more judges across the globe follow the example of their Brussels colleagues, the climate litigation movement may well end up delivering on its promises.